Abstract
Access to justice is a fundamental tenet of the rule
of law. It is paramount to enable people to exercise their rights, confront prejudice,
make their voices heard, and hold decision-makers responsible. Access to justice
is more than improving an individual’s access to courts or guaranteeing legal representation.
It is an enabling tool
for holistic development and economic progress. This paper examines
certain pertinent issues related to Indian Judicial system like who does not use
the courts and why? What are the impediments to access to Justice? What are the
possible factors which are instrumental in denial of Access to Justice? The paper
also dwells upon possible ways to remove the impediments to access to justice.
Introduction
As
a nation our country has made significant progress since independence. But a lot
still needs to be done and achieved. All societies have some fundamental goals to
be achieved; one of such goals for us is securing a just society and ensuring easy
access to justice to all. Realizing good governance requires security, rule of law,
political freedom, economic opportunity, access to infrastructure, education, health,
and empowered civil society.
Rule of law is one of the important aspects of good governance and access to justice is a fundamental tenet of the rule of law. It is paramount to enable people to exercise their rights, confront prejudice, make their voices heard, and hold decision-makers responsible. Real and meaningful access to judicial institutions is essential for achieving good governance and maintaining democracy. People-centricity refers to a human-centred approach that adopts the perspective of people. People need to be placed at the centre core when designing, delivering, and implementing policies, laws, services and legal procedures within and beyond the justice system. Easy and affordable access to justice systems is the persistent concern worldwide especially in developing countries like India.
Access to Justice-Concept and definition
Access to Justice is a fundamental principle instilled with
the ideals of human rights, but very few people can understand and articulate
what it means in everyday life. Access to justice aims at individual’s
empowerment and enforcement component of the rule of law, which involves imparting
knowledge to individuals’ about their rights and access to tools to enforce those
rights effectively and affordably. In the Preamble to the Constitution of India
“We the people of India” have guaranteed to ourselves “Justice: Social, Economic
and Political”. Access to Justice is the mean to ensure and achieve social justice
through the participation of all its stakeholders including the litigants, the administration,
the executive, the bar and the bench alike. A person’s right to access speedy justice
is guaranteed as Fundamental Rights under Article 21 of the Constitution of India.
Transparency, procedural fairness and legal certainty are vital components of access
to justice. Equal justice before the law is the fundamental principle of Indian
Constitution, which in turn translates into equal access to the justice system and
adjudication in accordance with substantive standards of fairness and justice.1
According to OECD
definition, Access to Justice refers to the ability of people, businesses and communities
to prevent conflicts and obtain effective, fair, equitable and timely resolution
of their legal and justice-related needs.2 The means to justice identified
include both formal and informal pre-court and court mechanisms. Also the services
used by people and other stakeholders to prevent legal issues and/or seek their
resolution.3 UNDP defines access to justice as: “the ability
of people to seek and obtain a remedy through formal or informal institutions of
justice, and in conformity with human rights standards.”4
To study written
law and courts' interpretations is important but not sufficient if we want to examine
the efficacy and effectiveness of justice system and why it functions the way it
does. For this we need to look into certain relevant questions for the well-being
of any justice system like who does not use the courts and why? What are the impediments
to access to justice? What are the possible factors which are instrumental in denial
of Access to Justice?
The term ’access’ assumes and indicates that there
was some form of barrier which has been identified and removed. These barriers come
in varied forms: social, economic, political, demographic, and psychological. These
obstacles lead to inequalities which in turn results in exclusion or hinders fair
determination of rights.5 Individuals who face legal problems while lacking
access to justice to deal with them, form part of the process which generates and perpetuates poverty
and social inequality, which in turn leads to marginalisation and social exclusion.6
According to Hunter, access is more than a mere admission ticket to the formal legal
process; it is a 'basic political resource' allowing for other opportunities.7
With advancement in society and rising expectations, ‘the realm of injustice is
enlarged.8’ Galanter refers to this as 'moving frontier of injustice.'9
Author thus points out that increase in justice does not imply a corresponding decrease
in the amount of injustice. With growing knowledge, technological developments and
human creativity- injustice keeps growing.10 Delivery of Justice needs
to be more 'citizen-centred and community focussed'11 and incorporating
only legal strategies would not resolve the plight of the people. A combination
of legal and non-legal methods for resolution of disputes should be incorporated in justice system.12
The reform of the formal legal system which is part and parcel of the access to
justice, is a continuous process assisted by regular evaluation and reassessment.13
Access to justice has been prominently recognized
in the United Nation’s 2030 Agenda for Sustainable Development. Access to justice
is at the core of Goal 16: “Promote peaceful and inclusive societies for sustainable
development, provide access to justice for all and build effective, accountable
and inclusive institutions at all levels.”14 According to UNDP access
to justice is “much more than improving an individual’s access to courts, or guaranteeing
legal representation. It entails “ensuring that legal and judicial outcomes are
just and equitable”. UNDP recognises five capacities that are essential for achieving
access to justice legal protection; legal awareness; legal aid counsel; adjudication;
enforcement and oversight.15
Indian Judiciary-Structure and Functions
People turn to the judiciary in the quest of justice.
Society loses faith in the judicial system if it fails to deliver justice in a simple,
affordable, and timely manner. Maintaining human dignity and ability to resist injustice
to poor and vulnerable sections in the hands of the powerful and wealthy, is the
basis of both democracy and society. The efficiency and effectiveness of judiciary,
is paramount for achieving access to justice. It is, therefore, imperative to examine
and assess how far our justice delivery system has been able to ensure equal social,
economic and political justice to all the people as intended by the Constitution
in the Preamble.
The Constitution lays down the structure, power and
functions of every organ of the State including the judiciary. It also defines and
establishes norms for their inter-relationships as well as checks and balances.
Judiciary is an important and independent organ of state besides executive and legislature.
Independence of judiciary is essential to the rule of law and constitutional norms.
Article 50 of the Constitution of India obligates the State to take steps to separate
the Judiciary from the Executive in the public services of the State. While preserving
its independence, it is also crucial to maintain the vibrancy and effectiveness
of this branch of governance, which serves as the ultimate institution for addressing
citizens’ grievances.
In India, we have unified integrated judiciary- one
hierarchy of courts – with the Supreme Court as the highest court. At the top of
the judicial system is Supreme Court of India followed by High Courts at State level.
There are 25 High Courts in the Country. At the District level, there are Subordinate
District Courts.
The Supreme court is the final interpreter of the
law and also as the arbiter in matters of relations between the Union and the States
and the States inter se. In the Constitutional scheme, the Supreme Court and the
High Courts have been designated as the custodians and watchdog of the fundamental
rights and freedoms of the people.16 Article 32 and Article 226 of the
Indian Constitution provide an efficient system to protect everyone's fundamental
right. These constitutional remedies serve as a speedy mechanism. Wherein people
can approach highest courts directly without the inconvenience of going through
subordinate courts. The District Courts of India are established by the State governments
administer justice at a district level. The subordinate judiciary works under the
administrative control of the High Court of the State.
Major Impediments to Access to justice in India
Pendency and Delay
Two serious problems which our judicial system is
facing are -undue delay in disposal of cases and mounting arrears of cases. Reports
of various Law Commissions of India and parliamentary standing committees have from
time to time have flagged the issues of judicial backlog and infrastructure concerns.17
The issue about courts' abilities to handle backlog of cases still remains a concern
and been voiced frequently. Pendency of cases across various courts in the country
has crossed the five crore-mark. As on July 20, 2024 district and subordinate courts
have a pendency of more than 4.5 crore cases out of which approx. 1.1crore are civil
cases and around 3.4 crore are criminal matter. Out of the total pending cases,
approx. 3.02 crore (66.61%) cases are pending for more than a year; 63.51 per
cent of the civil cases and 67.6 per cent criminal cases are more than 1-year-old.
Around 6013081 cases are pending before State High Courts and about 83892 before
the Supreme Court.18 The increasing backlog is plaguing our judicial
system and a reason for disrespect internationally. The backlog not only delays crucial legal issues but also escalates the cost
of contract enforcement, making economic activity challenging.
The delay and pendency
is not only a phenomenon which is affecting our courts but also crippling the functioning
of tribunals which are meant to be quasi-judicial forums for quick and speedy resolution
of disputes, leaving much to be desired. Both growing number of cases and slow disposal
are reasons for rising pendency. The litigation is increasing due to the extensive
jurisdiction granted to the judiciary in the Constitution, excessive government
litigation, rapid social and economic changes which is leading to more disputes.
The government,
is the country’s leading litigator, responsible for 73 per cent of all cases admitted
by the Supreme Court.19 Poorly drafted orders
at governmental level have led to contested tax revenues equal to 4.7 per cent of
the GDP and are increasing. Around Rs. 50,000 crores are locked up in projects and
investments are reducing. These difficulties arise because of injunctions and stay
orders are passed by the courts in ill drafted and poorly reasoned orders.20
State of Infrastructure
One of the major reasons for increasing backlog of
cases is large number of judicial vacancies and low judge-population ratio. Increase in the number of
judges in the higher judiciary is an ongoing and cooperative exercise between the
Executive and the Judiciary. Whereas at the level of district and subordinate courts,
the filling up of the vacancies lies in the domain of respective high courts and
the state governments. As on 28.02.2022, there was a vacancy of 5,170
Judicial Officers. The working strength of 19,350 Judges/Judicial Officers of District
and Subordinate Courts was available against the sanctioned strength of 24,520.
on 28.02.2022.21
Government has also been trying to regularly fill
up and augment the vacancies in judiciary. According to the data of Ministry of
Law and Justice, from 01.05.2014 to 07.03.2023, 54 Judges were appointed in Supreme
Court. 887 new Judges were appointed in High Courts and 646 Additional Judges were
made permanent. Sanctioned strength of Judges of High Courts has been increased
from 906 in May, 2014 to 1114 in March 2023. Over a period of time, the strength
of the Judiciary has seen a marked increase with the district judiciary’s working
strength of 15,115 judicial officers, as against sanctioned strength of 19,518 in
the year 2014, increasing to a working strength of 20,026, as against sanctioned
strength of 25,423 in the year 2023.22 Ministry has informed Lok Sabha
in February 2024 that there has been a noticeable increase in the judges’ strength
with the sanctioned strength of Judges of Supreme Court being increased from 31
in year 2014 to 34 Judges in 2019. Since May 2014, the Government has appointed
62 Supreme Court Judges which comes to around 6 Judges in a year.23
Judge-to-population ratio which is an important measure
of a judiciary’s ability to provide prompt and effective legal services to its citizens,
is still very low. The Supreme Court of India24 and the Law Commission’s
120th Report have emphasized the need to reach a judge-to-population ratio of 50. However, as per the estimates of
Ministry of Law and Justice, in the year 2023, the judge - population
ratio in the country was approximately 21 Judges per million population.25
Lack of basic infrastructure
Lack of basic infrastructure is another major constrain
in judicial functioning. There is severe deficiency of court rooms and other infrastructure
crippling the judicial functioning. As on March 2022, there are 20,814 Court Halls,
which includes court halls leased from Centre/ States and rented buildings, and
18,319 Residential Units available for Judicial Officers/Judges in the country.26
The number of court halls has increased from 15,818 as on 30.06.2014 to 21,507 as
on 30.11.2023 and number of residential units has increased from 10,211 as on 30.06.2014
to 18,882 as on 30.11.2023, under this Scheme.27
Under the National Mission for Justice Delivery and
Legal Reforms set up by government in August, 2011, the central government is funding
States/UTs for construction of court halls, residential quarters for judicial officers,
lawyers’ halls, toilet complexes and digital computer rooms; thereby aiding justice
delivery.28
Lack
of proper planning and inadequate financial support are some of the empediments
which are crippling judicial administration. The budgetary allocation
to the judiciary is only between 0.08-0.09 per cent of the GDP which is a major
demiting factor. The scarcity of staff in the judiciary
further contributes to delays as it hinders the court’s ability to process cases
efficiently, leading to extended timelines for legal proceedings.
Procedural Delay
Non-adherence to procedural timeframes and tardy lengthy procedures
adopted by the courts is another major cause of delay. Civil
Procedure Code was amended in1999 and 2002 which specified timeframes for completion of various
procedural steps in civil proceedings. Prior to 1999, there was no limit on the
number of adjournments which the courts could grant. The 1999 Amendment fixed an
upper limit of three adjournments that courts could grant during the hearing of
a suit. In the case of Salem Advocate Bar
Association, T.N. v. Union of India30, the Supreme Court held that this
restriction did not limit the court’s power to grant more than three adjournments.31
The Supreme Court held that Order 17 does not forbid grant of adjournment where
the circumstances are beyond the control of the party. In such a case, there is
no restriction on the number of adjournments to be granted.32
Adjournments are sought for and granted by the Courts
as a routine matter. The advocates who are the most important aspect of justice
delivery system, have become responsible for triggering delay. They are not precise
and to the point. Many times they are not properly prepared. To impress their clients,
they indulge in lengthy oral arguments. They seek frequent adjournments on frivolous
grounds, which not only derails the judicial process but also makes it costlier
for the litigants. The lawyers take up more cases than they can manage which forces
them to take adjournments as more often than not they are busy in another court.
Resorting to frequent strikes by the lawyers also cripples the working of courts.
The Supreme Court has issued a circular tightening provisions
relating to circumstances under which lawyers may seek adjournment of cases and
imposed a bar on seeking two consecutive adjournments. The new guidelines also require
lawyers to get the consent of the opposing side before circulating a request for
an adjournment, prohibit two consecutive adjournments in a case and mandate that
the party seeking an adjournment will not only has to list a specific reason for
making the request but also indicate the total number of adjournments already sought
in the case.33 It is essential to ensure that an adjournment is only granted for sufficient cause. Seeking unnecessary
adjournment on non-existent grounds tends to interfere with the justice system and
often delay cases.
Legal Aid
Although the cost of litigation, the slowness of
the process, and its procedural complexity are usually mentioned as factors limiting
access to justice, but there is need that discussion on access to justice need to
move beyond these issues. The disadvantaged sections of the society face various
social injustices as they don’t have anyone to represent them before the court.
Through constitutional mandate and legislation a mechanism has been established
for free legal advice, assistance, or representation for those who because to their
financial condition or vulnerability are not able to access justice. Article 39A
of the Constitution of India provides for free legal aid to the poor and weaker
sections of the society and ensures justice for all. The Legal Services Authorities
Act was enacted in 1987 to establish a nationwide network for providing free
and expert legal services to the vulnerable sections of the society.
Although legal aid addresses legal costs barrier
to justice, but it is not without limitations. The legal assistance movement in
India is disorganized and lacks coordination in several areas. The goals that are
set and achieved differ greatly. Effective legal aid schemes require large numbers
of lawyers and ample funding. For a variety of reasons, lawyers don't participate
in pro bono work. Financial resources available are insufficient. The people are
illiterate and not aware about their rights. In the absence of awareness about rights
and remedies, they suffer in silence, are exploited and deprived of their rights
and benefits.
Addressing at a two-day regional conference on access
to legal aid by the National Legal Services Authority (NALSA), Justice S K Kaul said
“In the pursuit of justice, the importance of legal aid cannot be overstated as
it is the cornerstone that upholds the principles of fairness, equality and the
rule of law." He said while everyone should have access to a good lawyer our
attention is multifaceted to enable dispute resolution and effective governance
mechanisms at all levels.34 Efforts have been undertaken by government
to institutionalize pro bono culture. A technological platform called ‘Nyaya Bandhu’
has been created where advocates willing to devotee their time and services for
legal aid work can register. Nyaya Bandhu
Services are also accessible through on UMANG Platform. Pro Bono Panel of advocates
have been established in 21 High Courts at the State level. Beside this Pro Bono
Clubs have been launched in 69 select laws schools to infuse Pro Bono culture in
aspiring lawyers.35
Alternative Dispute Resolution (ADR) Mechanism
Litigation is expensive, lengthy and time consuming.
In our country where vast majority of population is poor and disadvantaged, there
is dire need for alternatives to litigation which are cheap and expeditious. Therefore,
Alternative Dispute Resolution (ADR) should be closely aligned with the formal court
system, and court-linked processes to dispose of many matters, thus alleviating
overburdened court rolls. ADR mechanisms are less adversarial and capable of providing
speedy redressal. These can provide a better alternate to the conservative methods
of resolving disputes, reducing judicial work load and dispensing timely justice
to citizens.
Enabling legal framework for resolution of disputes through Alternative
Dispute Resolution (ADR) has been provided in Civil Procedure Code, 1908. Section
89 CPC recognises, Arbitration, Conciliation, Mediation and Judicial Settlement
including settlement through Lok Adalat. It provides for the
court to refer a dispute for settlement by either of these modes, where it appears
that there exist elements of a settlement, which may be acceptable to the parties.
Lok Adalat is an important ADR Mechanism available to common
people. Provision for organising lok adalat for dispute resolution has been provided
under the Legal Services Authorities (LSA) Act, 1987. In lok adalats, the cases
pending in regular courts or at pre-litigation stage are settled amicably. An award
made by a Lok Adalat is final and binding on all parties. The cases disposed of
in Lok Adalats during 2021-23 36 are as under:-
|
Years |
Pre-litigation Cases |
Pending Cases |
Grand Total |
|
2021 |
72,06,294 |
55,81,743 |
1,27,88,037 |
|
2022 |
3,10,15,215 |
1,09,10,795 |
4,19,26,010 |
|
2023 (till Feb) |
1,75,98,095 |
30,25,724 |
2,06,23,819 |
|
Total |
5,58,19,604 |
1,95,18,262 |
7,53,37,866 |
Source: Government of India,
Ministry of Law and Justice
Enactment of Mediation Act, 2023
Mediation Act enacted on 14th September,
2023 provides the legal framework for mediation. The Act includes provisions relating
to voluntary pre-litigation mediation in civil or commercial matters before parties
move to a court or Tribunal. It also provides the matters which are not fit for
mediation, specifies a maximum period of 180 days for the process of mediation to
be completed; procedure for appointment of mediator and conduct of mediation; setting out requirements
of a mediation agreement; functions of Mediation Service Providers and Mediation
Institutes; allowing
parties to approach a mediation service provider, provision for online mediation
etc.
Amendments to Arbitration and Conciliation Act, 1996
To keep pace with current developments in the arbitration
landscape Arbitration and Conciliation Act, 1996 has been modified and amended in
years 2015, 2019 and 2021. The objective of the amendments is to make arbitration
a viable dispute resolution mechanism, the changes are enabled to ensure timely
conclusion of arbitration proceedings, minimizing judicial intervention in the arbitral
process and enforcement of arbitral awards. The Arbitration and Conciliation (Amendment)
Act, 2015 provided for expeditious, fast track and time bound arbitral proceedings,
neutrality of arbitrators and cost effective delivery mechanism. Arbitration and
Conciliation (Amendment) Act, 2019 was brought to give boost to institutional arbitration
and to reduce the share of ad-hoc arbitration in the country. This also provided
for the for establishment of the Arbitration Council of India for the purpose of
framing policies governing the grading of arbitral institutions and recognising
professional institutes' providing accreditation of arbitrators. The purpose of
establishing the Council is to minimize the roles of courts in arbitration matters.
Section 34 of the Act was amended through the Arbitration
and Conciliation (Amendment) Act, 2021, which provides for unconditional stay of
enforcement of arbitral awards where the underlying arbitration agreement, contracts
or making of the arbitral award are induced by fraud or corruption.
Amendment to the Commercial Courts Act, 2015
The Commercial Courts Act, 2015 was amended in the
year 2018 to provide for Pre-Institution Mediation and Settlement (PIMS) mechanism.
Under this mechanism, where a commercial dispute of specified value does not contemplate
any urgent interim relief, the parties have to first exhaust the mandatory remedy
of PIMS before approaching the Court. This is aimed at providing an opportunity
to the parties to resolve the commercial disputes through mediation.
India International Arbitration Centre Act, 2019
The Act to provides for the establishment of India
International Arbitration Centre. The Centre will be an independent, autonomous
and world class body for facilitating institutional arbitration. The Centre will
provide arbitration services in a cost effective manner for both domestic and international
commercial disputes.
Initiatives undertaken for Easy Access to Justice
Repeal
and Modification of Obsolete Laws
The
proliferation of rules and increase in population has resulted in a tremendous
increase
in the quantum of litigation. Many of these laws are old and outdated. The inclusion
of a provision making dishonouring of cheques, a criminal offence, in
Negotiable Instrument Act has resulted in millions of criminal complaints. The Legislature
has been sluggish to the demand for better laws. In 2014, the Government constituted
a Two-Member Committee to recognize the obsolete and redundant laws for repeal.
The Committee examined and identified 1824 obsolete Acts which including 229 State
Acts for repeal. The 229 State Acts were
forwarded to the respective State Governments for repeal, whereas the Central Acts
were taken up by the Legislative Department with the concerned Ministries/Departments
of the Government for review. So far 1486 obsolete and redundant laws have been
repealed by the Government of India since 2014.37 Besides this government
has also undertaken exercise of recognising the legal provisions which needed amendments
to ensure ease of doing business and living in the country. Parliament
passed a bill which seeks to promote ease of business by decriminalising minor offences
through amendments in 183 provisions of 42 Acts.38
In
an effort to decrease pendency and clear
the backlog in the courts, the Government has recently amended a number laws like
the which include Negotiable Instruments (Amendment) Act, 2018, the Commercial Courts
(Amendment) Act, 2018, the Specific Relief (Amendment) Act, 2018, the Arbitration
and Conciliation (Amendment) Act, 2019 and the Criminal Laws (Amendment) Act, 2018.39
New
Criminal Laws adopted
Till now the courts have been functioning under procedural
Laws which were old and outdated. The Code of Civil Procedure is more than a century
old. The Code of Criminal Procedure was more than 50 years old and was repeat of
previous Code which was a century old. The Evidence Act was enacted in the year
1872. These procedural laws were passed during the period when litigation was few
and new forms of crime have not evolved. Parliament has enacted the three new criminal
laws, Bharatiya Nagarik Suraksha Sanhita, 2023, Bharatiya Nyaya Sanhita, 2023, and
Bharatiya Sakshya Adhiniyam, 2023, effective from July 1, 2024. With these new laws,
India is gearing up for a significant overhaul of its legal framework. These Acts
repeal the British-era Indian Penal Code, the Code of Criminal Procedure, and the
Indian Evidence Act, respectively. The new laws overhaul the Indian criminal justice
system, ushering a new era. The three new criminal laws have replaced outdated colonial-era
statutes. The new laws will deliver justice through a victim centric approach, increasing
focus on national security and introducing digital/electronic evidence reviews.40
e-Court
There is a need for revamping the entire justice
system through adoption of technology and e-governance. Use of information and communication
technology is sina quo non for smooth
and accelerated case progression for disposal of cases within timeframe and ensuring
transparency in adjudicatory process. E-Courts primarily aims at paperless working
environment it makes record keeping, managing and searching voluminous record easier,
accurate and efficient saving both time and labour. Under the e-Courts Mission Mode
Project, district and subordinate courts are being computerized with proper WAN
connectivity, video conferencing facility, setting up of e-Sewa Kendras in the court
complexes and virtual courts etc.
As
on March 2023, 18,735 district and subordinate courts have been computerized. WAN
connectivity has been provided in 99.4 per cent court complexes. Video conferencing
facility has also been enabled between 3,240 court complexes and 1,272 related jails.
689 e-Sewa Kendras have been set up in court complexes. These Kendras facilitate
and assist lawyers and litigants in knowing case status, getting judgments/orders,
receiving court/case-related information, and efiling facilities. 21 virtual courts
have also been set up in 17 States/UTs. Till January 2023 these courts have handled
more than 2.53 crore cases and realized more than Rs. 359 crores in fines.41 the cabinet has approved in September 2023 Phase-III of e-Courts with a budgetary
allocation of Rs.7,210 crores September 2023. This aims
to bring greatest ease in justice delivery by moving towards digital, online and
paperless courts.42 Tele-Law programme has also been launched in 2017
to provide a dependable and efficient e-interface to enable the needy people seek
legal advice and consultation from empanelled lawyers through video conferencing,
telephone and chat facilities. These facilities are available at the Common Service
Centres (CSCs) situated in Gram Panchayat and through Tele-Law mobile application.
As on 30th November, 2023 legal advice for 60,23,222 cases had been enabled through
2.5 lakh CSCs under the aegis of Tele Law and Tele Law Mobile App.43
Fast Track Courts
To ensure protection and security of women and girl
child, the Government has ensured stringent punishment including death penalty for
perpetrators of rape by passing the Criminal Law (Amendment) Act, 2018. Incidents
of sexual offences and long-standing trials of accused mandated separated
devoted court machinery to provide immediate relief to the victims. Fast Track Special
Courts (FTSCs) are specially designed courts dedicated to ensure swift
administration of disposal better rate as compared to regular courts. The very objective
of these special courts is to expedite the disposal of cases and in turn reduce
the burden and backlog of cases. The government as a part of National Mission for
Safety of Women (NMSW) has taken up work of setting up of Fast Track Special Courts
(FTSCs) to ensure quick disposal of heinous crimes against women and children.
To provide speedy justice, the 14th Finance Commission
had recommended the setting up of 1800 Fast Track Courts (FTCs) during 2015-2020.
It also urged State Governments to utilize enhanced fiscal space available through
tax devolution (32% to 42%) for dealing with specific natured cases of atrocious
crimes, civil cases pertaining to women, children, senior citizens, other vulnerable
sections of society etc and property related cases pending above 5 years.44
The Government has established Fast Track Courts for dealing with cases of these
Ctegories of cases. Fast Track Courts are functional. Fast Track Special Courts
(FTSCs) for the speedy disposal of pending rape cases and crimes under POCSO Act
have also been set up rape. A total of 758 FTSCs including 412 exclusive POCSO (ePOCSO)
Courts have become functional in 30 States/UTs by October 2023.45
The Way Ahead
India is emerging as one of the world's emerging
economic powers and is driving towards modernization, the state institutions are
pushed to modernize and adapt to changing circumstances. Inspite of the impetus
to change, the judicial system continues to struggle in providing basic justice
services in effective manner. The private sector has become an important player
in the international economy. The challenge for the state to facilitate it, and
an efficient justice system is a crucial aspect to deal with the present challenge.
For the justice system to meet the expectations, the role of the advocates will
have to be transformed, efficient and effective alternatives to litigation will
have to be put in place, court processes need to be restructured, and public confidence
in the justice delivery system is to be built. At the same time, it needs to be
emphasized that this is not only quantity but also the quality of justice dispensed
which is equally important. So, the system not only has to gear up to enhance its
capacity to handle more matters but also to be efficient in delivering justice which
is effective.
The government has initiated several measures to
modify laws, reduce litigation by state agencies and encourage resolution of disputes
outside courts. But much still remains to be deserved. There are certain issues
which need to be addressed to build people’s confidence in the judicial institutions.
Some of these are:
1.
Need for greater harmony between
three wings of the state- The three arms of the State
cannot successfully serve the interests of people of our country unless they have a deeper understanding of one
another. Our Constitution clearly outlines the tasks and responsibilities of the
three wings. All the wings, however, share the same objective, which is to realize
the mandate of our Constitution. So for society to prosper, the people of India
need not only an independent and functional judiciary but also an efficient Legislature
and Executive. The three wings of the State have to work for maintaining
delicate inter-institutional balance, and for that it is the primarily responsibility
of the executive's obligation to make extra effort toward the same as it is the
most visible organ of the state.
2.
Building Transparency and Trust- Lack of
transparency, erosion of credibility and trust are also major problems faced by
Indian judiciary. The quality of justice and accountability are two major sectors
wherein the judiciary needs to work to regain citizen’s confidence. The judiciary
should be seen as a as a noble, moral, and incorruptible institution. People's trust
in the courts will be eroded if there is continuous discussion or debate about corruption
in the court system, even if the corruption is minimal. Corrupt practices should
be brought to light, rather than ignoring and sweeping it under the carpet. Transparency
is the key for success of the institution.
3.
Increasing Judicial Capacity- The government
has to work on the most contentious part of the administration of justice that is
adequate judges, staff and infrastructure. Appointment of new judges will help the swift dismissal
of cases. Government has promised
to double the number of courts and judges in the subordinate judiciary. However,
the total sanctioned strength of judicial officers in lower courts increased by
only about 25 per cent between 2014 and 2023. Due to such
disagreements, at present 29.71 per cent of positions in all High Court benches
are vacant.46 Government needs to implement a properly framed All India Judicial
Service to strengthen overall justice delivery system. This will ensure induction
of suitably qualified legal talent getting selected through a appropriate all-India
merit selection system. This will also ensure suitable representation to marginalized
and deprived sections of society addressing the issue of social inclusion.
In 2015, the Supreme Court has struck
down the National Commission for Judicial Appointments (NJAC) Act which provided
setting up of a National Judicial Commission for the appointment
of judges in higher judiciary, declaring it unconstitutional on the grounds of interfering
with the independence of the judiciary. A renewed version of this idea could help to appoint
more judges effectively.
4.
Building adequate Infrastructure- The physical
infrastructure of Indian courts has not changed significantly since the colonial
era. The government needs to invest in building infrastructure of the courts on overall scale and
increase the number of courtrooms, record rooms and other required infrastructure
like number of bathrooms, parking spaces, waiting rooms, etc. For this the budgetary
allocation for judicial system needs to be enhanced. Besides this IT infrastructure
of the courts needs to be further strengthened for a paperless future.
5.
Procedural
Reforms- The main problem with the current legal
system is lengthy, tardy, slow and highly technical procedures. As a result it often
takes years for matters to finish. The Indian judicial system needs to move more
quickly, avoiding postponements and arriving at speedy verdicts. The procedure presently
being followed needs to be reformed keeping in view the social and economic demands
to deliver speedy justice.
6.
Generate
awareness about rights and remedies- Knowledge of the laws not only helps
us desist from illegal acts, but also prevents us from becoming a victim of infringement of rights. Constraints among people like physical, legal, institutional, political,
cultural, technical, social, economic need to be examined and addressed. Programmes
for dissemination and legal awareness launched in order to generate awareness among
public about their rights and remedies available to them. It is only them the legal
reforms will enjoy widespread legitimacy.
Endnotes
1. Estelle Hurter. (2011). Access to justice: to dream the impossible dream?, The Comparative and International Law Journal of Southern Africa , Vol. 44, No. 3 (NOVEMBER 2011), : Institute of Foreign and Comparative Law pp. 408-427 at p.413.
2. OECD. (2024). Recommendation of the Council on Access to Justice and People-Centred Justice Systems, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0498#mainText.
3. Ibid.
4. United Nations Development Programme (UNDP). (2005). Programming for Justice: Access for All—A Practitioner’s Guide to Human Rights–Based Approach to Access to Justice, https://www.undp.org/asia-pacific/publications/programming-justice-access-all, accessed on July 15, 2024
5. Estelle Hurter. (2011). Access to justice: to dream the impossible dream?, The Comparative and International Law Journal of Southern Africa , Vol. 44, No. 3 (NOVEMBER 2011), : Institute of Foreign and Comparative Law pp. 408-427 at p.414-15.
6. Currie 'A national survey of the civil justice problems of low- and moderate-income Canadians: incidence and patterns.' (2006).3 International Journal of the Legal Profession at p.218.
7. Estelle Hurter. (2011). Access to justice: to dream the impossible dream? The Comparative
