Action Points

• At present, we have tens of thousands of Laws, some even from the 18th. Century, many of which contain provisions contradicting those in the others. It is thus necessary for the Judiciary to call on the Government to urgently take up the matter of nullifying the unnecessary laws and consolidating and simplifying the other Laws as required. Much of this has been done in the recent new Law codes, yet a lot more needs to be done.
• If ignorance of Law is not to be an excuse, then it becomes the responsibility of the Courts to ensure that the Legislators pass laws that can be easily understood by any reasonably educated individual and also, that the laws are easily accessible to the people in an affordable way. Authorized translations should also, be available in the local language. The India Code portal must certify to the accuracy of what is displayed thereon, with Application Programming Interface (API) facility to allow for independent innovators to build useful applications based on such information. Ofcourse, the responsibility for the functioning and validity of such Apps will remain that of the innovator and the user.
• We could follow international efforts to rewrite laws in simple, accessible formats in plain language and shorter sentences. Let the Courts interpret them in the relevant context from time to time to better convey the spirit and perhaps even improve on the letter of the Law. However, efforts to confuse the issue and call on laws, as written in the local language to be recognized as valid, is not correct and should be resisted. English is the language of our Constitution and the official language of our Country, hence, the final authorized version of any law or interpretation of the Constitution can only be in English.
• The Indian Judicial system has become victim to a log jam of over fifty million pending cases, many for over decades, all caused by matters of procedure. About half of these cases being those filed by Government Agencies, which find themselves unable to accept judgments against them. All which again take extraordinarily long years to be settled. This causes miscarriage of justice in many cases-as the adage goes-’Justice delayed is Justice denied’. The system needs a comprehensive review and new procedures need to be introduced to allow for cases to be settled in a quicker manner. Government Agencies should be held to even stricter limits of time allowed for appeals than for other litigants and also, not be allowed to go for more than one appeal. The Departmental officers and their lawyers should also, be held accountable and penalized for improperly or inadequately prepared or argued cases. Also, effective punishment must be imposed on the lawyers, police personnel, and witnesses for perjury, forgery and manipulation of evidence etc.
• Also, many of the criminal cases are for petty crimes, where the accused, denied bail or proper legal representation, have already spent more time in lock-up than would have been warranted, even if proved. A fixed time period for such cases to be heard must be laid down, in any case, say not more than 3 months or a third of the expected prison sentence applicable, if proved.
• Till fairly recent times, especially in criminal cases, a jury used to be called to decide on the guilt or innocence of the defendant. The Jury system was done away with as it was thought that objectivity was being lost in the sway of emotions of the jury members and also, that the single Judge could expedite the decision on the cases. In actual effect, the lack of a jury greatly reduced the necessity of hearing the case expeditiously. In both the types of cases, this allowed for knowledgeable lawyers well versed in the rules and regulations of the working of the Police and Judicial systems, to greatly ‘game’ the system and delay the cases till witnesses out of sheer frustration withdraw their testimony or did not turn up or the evidence was lost by the Police or Prosecutor or become so compromised as to be claimed as ineffective.
• Also, the lawyers now played on the knowledge of the finer and obscure points of Law and on the sheer volume of pending cases in that Court to keep claiming that the evidence was not sufficient, even if it otherwise would have met the criteria of being ‘beyond reasonable doubt’, and manage to get the Court to either further delay the matter or even accord an uncalled for ‘benefit of doubt’ to release the accused even by arguing for proof ‘beyond all doubt’ Proof of certainty is arguably not possible in all cases. The concept of ‘let two guilty men go free rather than one innocent be punished’ has been stretched into becoming an excuse for most criminals going free, in both types of cases.
• All this now calls for a re-consideration of the jury system, and/or for fixing a mutually acceptable time period to present and argue the case. The prosecutor must have ‘skin in the game’ and be made to risk his position in case he loses too many cases or comes to the Court not adequately prepared. So also, for the Police, they must be held responsible for properly collecting the evidence and the safe custody of all evidence and also, for recording statements properly, and even the defending counsels if they seek postponement for any reason more than say, twice, after both parties have mutually agreed upon a date with the Court other than in case of sudden serious illness or emergency preventing the appointment of another as replacement, or as one Judge had famously said – “When the Plaintiffs’ lawyer dies, or Respondents lawyer dies, without opportunity to appoint a replacement, or if the Judge himself dies.“
• Opportunity of appeals at two stages should be more than enough to deal with any infirmities in the earlier arguments presented in the Courts.
• Such steps will also, greatly reduce the opportunity for corruption in the entire justice system and increase the trust of the people therein.
• Also, in our adversarial system of Law, Judges take decisions based on the arguments presented by the Lawyers of both sides of an issue in Court. They are not expected to know all aspects of every issue. In most civil cases dealing with policies, the Petitioners are generally well prepared but unfortunately the lawyers representing the Government are not, as they are not as committed to, or knowledgeable enough about the issue, or have enough time to properly prepare for and present their side of the case to the Judges. Thus, we end up with biased judgements that need to be revised later. (See-Annexure) It is therefore necessary that the judicial system allow for the Judges to call for specialist advisors from the other stakeholders as ‘amicus curiae’ and give them adequate time to properly present the issues.
• Also, Court-room proceedings have traditionally been open – a protocol critical to ensuring the faith of the public. As Jeremy Bentham, jurist had said – “Publicity is the very soul of justice.“
• The world – wide open government movement today has evolved to include ‘open data’ as a core component. This has yet to be incorporated in our Courts. The administrative side of our judicial system, the bureaucrats, from process servers, to the staff responsible for record keeping, processing new filings, managing court-rooms, finance etc., all of whom perform critical supporting roles, should all be held to a standard charter of time-bound execution of duties.
• Selection of High Court and Supreme Court Judges must be made only on performance and merit-based criteria and calls for quotas should be resisted. If even over years of working in the field, the lawyer is unable to prove his/her competence to fellow jurists, then he/she clearly does not deserve the appointment. Preference may be accorded, for some time, to qualified women Judges, but only by deep selection duly relaxing only the seniority norms so as to increase the number of women Judges to at least 30 percent at any level. Once appointed, the performance of all Judges should be evaluated. If judgments are overturned in say, over one third of the cases in any given period, say three years, the Judge can be warned or even relieved of his/her position. Appropriate oversight and disciplinary mechanisms should also, be created and procedures laid down to deal with complaints and disciplinary matters.
• Also, Judges too need to be perceived as being like ‘Caesar’s wife’, above even any suspicion of any misdoing. A method of monitoring their, and thier family’s assets at regular intervals, suspending them on suspicion of any impropriety and removing them even in cases of reasonable doubt on their integrity must be laid down.
• The present impeachment process is not really practical and needs to be reconsidered, except perhaps for the Chief Justice of India.
• Also, some practical experience, say at least three years, in the functioning of the judicial system should be insisted upon while appointing judicial magistrates. Just passing the judicial service exam should not be the only criteria, though it should be a minimum essential requirement.
• The infrastructure of the Courts must also, be improved to allow for easy accessibility and proper functioning and comfort not only for the judges and staff and lawyers but also, for the litigants even as they wait their turn to be called. On-line and digital filing procedures and systems would greatly reduce the number of people that need to enter the Court premises.

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