Even though justice is to be ensured to everybody as per constitution, on the ground it is hardly the case. For one, justice is accused-centric than victim-centric. The system we have adopted from British goes all out to protect the accused at the cost of victim. Even there accused from humbler backgrounds do not necessarily get justice and may suffer as under-trials for decades. Trials take too long. There are too many levels of appeals. At times the right verdicts of trail courts are over-turned by higher courts on technical grounds thereby letting the guilty escape. At times the investigation is so poor and wrong persons get arrested and right people are freed. Also it is overly expensive and time consuming for common people that they use it only as a last resort.
Justice system and processes are archaic and there is too much complexity in law. There is no point in one part of Governance system being overly complex that only slows things down. While countries like US have speedy trials act and UK finishes trials much faster, in India a person gets released on bail then charge-sheets take very long. Some of the people on bail may be child-molesters and they may again attack.
Charge sheets are thousands of pages for an incident that took half an hour. Trials are repeatedly adjourned.
A set of suggestions to improve justice delivery system are given below:
- Stiff penalty should be there for non-appearance in a court. Appearance should be mandated only if it is needed. Repeated non-appearance should lead to ex-parte judgments.
- Frivolous litigation should be avoided. Litigation should be continued only if there is cost justification.
- There should be opportunity for victim to be party to a trial, not just witness in case of criminal trials, if he feels prosecution is incompetent or compromised Victims of Mumbai bomb blast had to wait decades, even then there was lot of pressure from vested interests to give them even a semblance of closure.
- A good system is needed for performance management of judges that factors number of cases closed, quality and productivity of justice delivery.
- Colonial practices such as long summer vacations should be stopped.
- The fines for even crimes such as looting treasury are a pittance. Those who cause enormous financial loss to exchequer should also face enormous financial loss.
- There should generally be no more than two levels of appeal. Certain cases should start directly at high court level. This can prevent rich and famous prolonging trials as they can afford better lawyers.
- Inquiry commissions should be discontinued. There is no point in having commissions that run for decades.
- There could be judicial reform commissions and judicial accountability commissions which take a macro view.
- IT and high technology should be used and evidence recorded electronically. Government should outsource e-governance of courts to vendors than doing it at a snail’s pace using internal agencies.
- Courts should keep away from discretionary policy matters, unless there is malafide conduct and huge revenue loss. Courts should only intervene when Governments waste money like there is no tomorrow. Even then Courts should nudge executive and legislature to come up with solutions on their own rather than prescribe solutions.
- Courts should be watchful of misuse of laws vis-a-vis original intent. Right to set up minority education was given with the idea to protect culture and tradition of minorities but now used to run any institution even when only founder belongs to minority. In such a case why not extend this to all communities which may stop fight for quotas.
- All inter-government litigation should be done through mediation, while not taking away their rights to litigate.
- Legal services should be more accessible, thus reducing the role of informal bodies.
- There should be a single nation-wide number to report emergency/crime that has visibility to state, center and CVC.
- No trial should take more than 1 year in the first instance and not more than 3 years overall.
- There should be National Center for Serious Crimes spread across country that takes care of crimes against women and children, terrorism, sedition and financial frauds. This can also take up any surge crimes in selected areas.
- The laws have to be reviewed and simplified. Some of this is already ongoing.
- Ideally every Government department and groups of companies should have an Ombudsman, which can be used to resolve routine complaints.
- Corruption in judiciary and legal profession as well black-money in legal profession should be eliminated.
- There should be clear-cutmetrics for measuring judicial performance – Turn Around Time for cases (# of cases resolved), Average resolution time, maximum resolution time, Average Number of adjournments, Average delay due to adjournment, % of valid adjournments, % of Valid interventions by a higher court, Affinity ratio towards technicality via-a-vis justice, affinity ratio towards accused, affinity ratio towards victims. Outcome analysis of
judgement towards victim, accused, broader society and so on. Also % of frivolous cases entertained can be yet another metric. Did an intervention just help delay the cause of justice or serve the justice. % of judgments that encroached on executive domain. % of encroachments that was necessary. % of judgments that are whimsical, consistency across judgments, % of cases where bail granted served justice versus indulged on accused. % of judgments that introduced clarity vs ambiguity. Outlier judgments pointing to corruption. Judgments outside norms. Judgment consistency across defence lawyers. All the metrics should be for internal use only, at least to start-with.
- We should explore application of quality management processes to justice delivery. Processes similar to Capability Maturity Model and Kaizen should be evaluated. Ideas of Deming are applicable to every sector.
- The quality of prosecution lawyers should be significantly enhanced.
- Anybody who gets released on technicality should continually be monitored. This is to be done for rapists child molesters, serial criminals.
- Ideally there should be 3 resolutions in every case : Guilty, Not Guilty, Possibly Guilty, but not adequate evidence. In cases guilt is inadequately established, the appeal process should further the course of justice.
- There needs to be better governance of judicial system towards optimization and purposeful execution. Higher courts should intervene only on merit.
- A court should not take upon itself systemic issues in the context of individual case such as rights of CBI, UGC vs AICTE, MCI vs CBI, where the individual case may get clouded. Instead these kinds of issues should be handled by appropriately designated and empowered benches.
- If multiple cases point to need for streamlined interpretation and need to fill the gaps, it should be done by a body of judges.
- If at all courts want to lay down a law it is better done by a panel of judges by looking at broader picture, instead of using a specific case as the context. C
- Courts should be driven by clearly laid down laws than precedents.
- All policy matters to the extent possible should be left to executive for which executive should regain the trust and show by action.
- Executive should regain public interest so that people approach executive first in the matters of public interest and courts only as a matter of last resort
- All matters of laying down the law should be left to legislature or body of judges rather than individual judges who stumble upon an issue in the context of a case..
- Authorization matrix among courts should be done so that adjudication happens fast and laws are interpreted/revised/redefined consistently.
- There should be a balance between different pillars of democracy. It may be worthwhile to have civil society as fifth pillar of democracy that can serve as the conscience of the nation.
In summary the entire system of justice delivery should be re-engineered with right enablers in executive.