Double Decking the Judiciary

Conundrum in the Indian judiciary is very often discussed in the society paying little attention about its infrastructure and strength of Judges etc., which are the basic requirements in the process of dispensing justice. Fact remains that less than 13000 Judges and judicial officers are handling more than 3 crores of cases in India. Precisely 41,581 cases in the Supreme Court; 36,54,853 cases in the High Courts and 2,50,79,618 cases in district judiciary were pending as on 31st December, 2006. With the limited manpower the judiciary has been able to maintain the rising graph of disposal. Against the total disposal of 1,35,88,509 cases in the year 2001, the judiciary had decided 1,76,48,152 cases in the year 2006. In this way the disposal rate has increased nearly by 30%, in these successive years. Despite maintaining healthy trend and rate of disposal the judiciary cannot remain content so long the justice delivery system fail to respond quickly to the cries of poor litigants. To fulfil the cherished dream of millions of people to get cheap and speedy justice both the Government and the judiciary have to take certain special measures, and one such innovative idea could be the introduction of second shift in the Courts.  While assessing the performance of the judiciary people should also consider the Judge-population ratio. The population of the country is more than 120 crores. In this way the Judges ratio is less than 13 per 10 Lac of population. In U. S. A. Judges strength is 107; in U. K. it is 50.9; in Australia it is 41.6 and Canada in the Judge ratio is 75.2 per one million population. In view of this gross disparity the Supreme Court of India had advised the Government to at least increase the Judges strength to 50 per million population in stages. This direction was given in the case of All India Judges Association v. Union of India 2002 AIR SCW 1706. This has been reiterated in the case of Brijmohan Lal v. Union of India (AIR 2002 SC 2096).  In response to the call of the Apex Court of the country, the Govt. of India constituted 1748 Fast Track Courts in the year 2001. Further increase of ad-hoc Courts at lower level is in the pipeline. However, the directions of the Supreme Court have not been accepted in toto. Be that as it may, both the legislature and the judiciary are seriously pondering over the issue and various strategies are being adopted to tame the increasing pendency of cases in Courts.  With a view to advance the cause of justice one unique method was adopted in the year 1981 to settle petty cases by way of conciliation in Lok Adaltas. This practice of resolving disputes without following the established norms has been legalized by way of enacting the Legal Services Authority Act, 1987. To boost the movement of Lok Adalats, the Act has further been amended in the year 2002 introducing the concept of Permanent Lok Adalat for public utility services.  Other noticeable steps are amendment of Code of Civil Procedure in the year 2001, tightening loose ends of the law and amendments in the Code of Criminal Procedure. The latest amendment of Cr. P. C. has introduced the concept of Plea Bargain in criminal trials. I have already discussed certain fundamental deficiencies of plea bargain chapter (when it was in the Bill form) in my article “Speedy and Visible Justice” (2004 Cri LJ (Journal) 169). I am still sanguine about any drastic change in the situation if the concept of plea bargain is not liberalized further. Broadly, ousting the offences against women and children altogether from the arena of plea bargaining chapter does not appear to be a good idea. Because of this cap the women and child victims of minor offences are not permitted to compound the offences against payment of pecuniary compensation. Had there been no such restriction in the plea bargain chapter, good number of cases could have been settled and victims also would have been benefited. In other words, the new provision is against the spirit of time tested compounding provisions in the Cr. P. C. The, second significant drawback in the chapter is keeping the scope for awarding substantive sentences for certain offences. In a country where final conviction rate if below 10% there will be few takers of the so-called lucrative and incentive provision of plea bargaining, if the permissible bargain includes prison sentence. Sans these shortcomings, there does not appear to be any justification to examine the accused applicant in camera.  Having said so, it is an admitted position that the justice delivery system is under active attention of the Govt. Physical changes in the system in the form of increasing the number of Courts and indirect attempts by way of amendments of procedural laws have already been undertaken. Despite these measures the graph of judicial arrears is not showing any perceptible sign of decline. The reasons are multifarious. Litigation is increasing vis-a-vis the population. Every new law brings millions of new cases. For instance, a single amendment in the Negotiable Instruments Act, making dishonour of cheques a criminal offence resulted in the institution of thousands of cases per year. As on 31-12-2005 as many as 16,66,873 cases under section 138 of the N.I . Act were pending in Magisterial Courts. Since stereotyped ideas are not working to the satisfaction, time has come to explore some unique innovations. One such alternative solution, being discussed below may give succour not only to the judiciary but may also bring a revolution in the country itself.  In the Justice Sobhag Mal Jain Memorial Lecture, held in the year 2005, the then Hon’ble Chief Justice of India Shri Y. K. Sabharwal has given several tips to improve the justice delivery system. One of the suggestions is that evening shift system should be introduced in the Courts. This view was also echoed earlier by the then Law Minister, GOI, Shri Ram Jethmalani. However, the aforesaid brilliant idea has not been given due attention so far. The particular suggestion of the Hon’ble Chief Justice of India is extracted below :  “Establishment of additional Courts at any level involves enormous expenditure capital as well as recurring. Appointment of wholetime staff-judicial and administrative for new Courts involves considerable recurring expenditure. On the other hand, if the existing Courts could be made to function in two shifts, with the same infrastructure, utilizing the services of retired judges and judicial officers, reputed for their integrity and ability, who are physically and mentally fit, it would ease the situation considerably and provide immense relief to the litigants. The accumulated arrears can be liquidated quickly and smoothly.  Shift system has been in vogue in industrial establishments since long. It was introduced in educational qualifications (sic institutions) to cope up with increased demand. It is high time to introduce it in Courts as well”  India is the second largely populated country in the world. An alarming population is jobless. Considering the gravity of the situation and to keep the people of the country above the poverty line the Govt. of India has enacted National Rural Employment Guarantee Act in the year 2005. However, the Government has not given a serious thought over the suggestion of introducing second shift in its offices and Courts. I go one step further. I propose introducing two shifts working in all the Govt. departments. This can be done by engaging people on contract basis. The second shift need not be for equal duration. It may be restricted to four hours. It has been noticed that housewife culture in India is very common and the culture is not likely to change in the near future. The reason is not only less literacy rate among women but the Indian culture gives equal priority to foster children and care to old aged parents at home by female persons. Hence, home making is considered to be an equally important role of Indian women.  Amidst this scenario, introduction of short duration shift in the existing system may bring a smile to those women, who can afford sparing few hours from their home and earn something for themselves and their families, other than those who can engage themselves in full-time jobs. This will not only give the opportunity to the literate women to utilize their education and demonstrate their skills and abilities but will also encourage females to get them educated, more particularly with professional courses.  Coming back to the judicial system, the Govt. can engage retired judicial officers, who are found to be physically fit and known for their integrity, honesty and work culture in the past. However, we may not find adequate number of such officers. Besides this, the concept of re-employment at large scale may not be accepted by the society without grain of salt. Hence, I advocate the idea of recruiting competent and talented lawyers for such part-time job on contractual basis. The extension of time of existing Courts can be done basically on the same pattern under which Fast Track Courts have been constituted. The following formula can be adopted.  Lawyers may be initially recruited for a term of 5 years or so on fixed pay basis after this period there may be option to both sides to opt /recruit for regular job or to terminate the contract. The preliminary /procedural works like registration of cases, maintenance of registers etc. can be done in the regular office. Hence, skeleton staff, which can also be recruited on fixed pay basis (in the same pattern of FTC Courts), can run these extra shifts. Initially, the pilot project of extra shift by way of extension of Court hours may be confined to Courts situated at State headquarters and metro cities, considering the fact that in cities transport facility is available till late hours. The second shift need not be of 6 hours. Its working may be limited to 4 hours due to electricity and communication problem. We may also suitably advance the prevailing working time of Courts to adjust the working hours of the evening shift. In addition to Court work, Judges and staff of such evening shift Courts may also be engaged for holding Lok Adalats and arbitration/mediation proceedings. Hon’ble CJI has already referred about the use of infrastructure of existing Courts. This will not give extra load on the Government exchequer. Having seen multifacet benefits of two shifts working, both the Central as well as State Governments should lose no time on introducing short duration second shifts in Courts and other offices. It is learnt that Gujarat High Court has already taken a lead in this regard, followed by Madras and a few other High Courts. Although these evening Courts are confined to petty cases, but the initiative is laudable. This step will not only tame the galloping rate of unemployment, but will also give speedy justice and other reliefs to millions of consumers of law. Â

Author Name: Hon’ble Justice B. D. Agarwal