Hyderabad: The outrage over the Hyderabad gang rape-murder has culminated in a suspicious encounter killing before the accused rapists could be proven guilty. The spate of crimes against women and children is a wakeup call for the justice system.
State governments and respective High Courts must come on board the Union Law Ministry’s plan to set up 1000 special courts to fast track nearly 1.67 lakh rape cases, of which a whopping 1.60 lakh are of child rape.
With law and order a state subject, the onus is on the state governments to respond proactively and for Center to loosen its pursue strings to fund such initiatives.
When growing frustration isn’t addressed for many years, people are bound to find solace in immediate, swift and instant solutions.
In a democracy when people eulogize mob justice, it is a sign of failure of administration.
Even after 7 years, the accused in Nirbhaya rape-murder case are still alive in jail. What type of justice delivery system are we having if the rape accused are not given punishment even after 7 years? This type of delays in justice delivery system is forcing the people to demand instant justice.
Accused in criminal cases are getting hearing after serving their sentence and in civil disputes, the parties are getting judgements after 2-3 generations. It is a serious problem. Wait for justice in India can be agonizingly long as the first tier of the country’s justice administration system, district courts, is burdened with over 30 million pending cases and this number is increasing.
More than two-thirds of the pending suits are criminal cases, showing a lack of effective prosecution and early disposal.
A large number of pendency of criminal cases is worrisome for two reasons. Firstly, it denies access to justice to a large number of victims of crime. Secondly, because of the slow progress of the criminal cases, a large number of undertrial prisoners continue to languish in jails, sometimes, they end up spending more time in jail as undertrials than the prescribed term of imprisonment for the crime they have been accused of committing.
The massive pendency of rape cases in courts is a real problem. However, setting up fast track courts tackles just one dimension of it.
Equally vexing is the low conviction rates in rape cases, which hovers around 32%. In short, every arm of the criminal justice delivery system is falling short: police are failing to investigate cases properly; prosecution is unable to win trails, and a shortage of judges result in cases piling up.
The centre is squarely to blame for the last issue, as an astonishing 38% of sanctioned posts for HC judges-410 of 1079 posts-are lying vacant.
On last Friday, Supreme Court pulled up the Center for sitting on names reiterated by the collegium for appointment as High Court judges. The settled position in law is that the centre cannot demur if the collegium reiterates names that the government had sent back with objections. The huge vacancies in High Courts are nothing short of a travesty of justice.
If Indian women are not to continue to fall victim to barbaric perpetrators, it is imperative that the various stakeholders –centre, state governments and judiciary-proceed urgently on a holistic revamp of the justice delivery system.
There are more than 3.5 crore cases pending in different courts of India. Many of these cases are pending for more than 10 years. Below are the approximate number of cases pending in Supreme Court, High Courts and District and Subordinate courts in India.
In which, Civil cases around 1.09 crore, Criminal cases around 2.28 crore, Writ petitions around 13.1 lakhs.
The average time taking in junior court to dispose of the case is taking around 3 to 4 years if the matter is carried to the High Court on an appeal the average time is about 10 years, if the matter is carried to Supreme Court the average time is about 10 year to dispose of a civil nature of the case.
In so far as the criminal case is concerned the average time in the lower court is two years and any appeal to the High Court and Supreme Court the average time is around 5 to 8 years. The reason behind is pending of lots of cases and lack of appointment of lower judiciary and lack of infrastructure facilities.
At least 5 crore cases are filed every year and judges dispose of only 2 crore cases.
The reasons being –
Increase in the awareness of rights by common man:
The recent socio-economic advances and the resultant awareness of legal rights, has given courage to common people to approach courts of law for justice.
New mechanisms (Eg: PIL) and new rights (Eg: RTI).
As government explicit made legislation for new rights like ‘Right to Information’ and ‘Right to Education’, aggrieved parties started to increasingly knock the doors of justice. Also, active judiciary has invented new devices like Public Interest Litigation which gave again resulted in more cases.
There are not enough judges:
There are not enough judges (only around 21,000). Current Judge to Population ratio is 10 to 1 million. The Law Commission report in 1987 recommends at least 50 to 1 million. Population has increased by over 25 crore since 1987. The Centre says the States should take the lead in increasing the number of judges and the States say Centre should take the lead. As this tug-of-war goes on, judges’ strength remains the same and litigants remain in jail.
More than half of the posts are vacant. There is a conflict between Judiciary and Executive regarding the appointment of Judges to the Supreme Court and various High Courts. Colonial legacies like paid long vacations – at a time when the number of judges is low, the appointed judges are taking long vacations, especially in High Courts.
There are not enough courts:
Indian judiciary has insufficient resources. Both Center and States are not interested in increasing spending with respect to the judiciary. Budgetary allocations for the whole judiciary are a pathetic 0.1% to 0.4% of the whole budget. India needs more courts and more benches. Modernization and computerization have not reached all courts.
There is too much litigation from the Government Side:
The government is the largest litigant in India, responsible for nearly half the pending cases. Many of them are actually cases of one department of the government suing another, leaving decision-making to the courts. Also, most of the cases, when the government files a case, it is seen that the government side fails to prove the point.
Low judicial quality in lower courts:
The Indian Judicial system has miserably failed to attract the best brains and talented students.
As the quality of judges in lower courts is not always up to the mark, appeals are filed against the decisions in higher courts, which again increases the number of cases.
Archaic Laws or Vague Drafting of Laws:
The archaic laws that fill up the statute books, faulty or vague drafting of laws and their multiple interpretations by various courts are also reasons for prolonged litigation. Some of these laws date back to 1880s. Somebody wants to do something, he is shown a law drafted in the last century and told to stop doing it.
Consequences of Pending Cases in Indian Courts:
The common man’s faith in the justice system is at an all-time low. Denies the poor man and under trial prisoners their due of justice.
Economic reforms remain only on paper without the speedier justice system.
Foreign investors are increasingly doubtful about the timely delivery of justice, which affects the success of programs like ‘Make in India’.
Judiciary is unable to handle the “avalanche” of litigation. Judiciary becomes overworked and lose its efficiency. Justice delayed is justice denied and Justice hurried is justice buried.
Solutions to the Problem of Pending Cases in Indian Courts:
The government needs to double the number of judges and create all India Judicial Service.
The number of judges (vacancies) should be immediately raised to at least 50,000 from the current 21,000.
There should be wide introspection through extensive discussions, debates and consultations to identify the root causes of delays in our justice delivery system and providing meaningful solutions to improve the justice delivery system in India.
Government rules, orders and regulations should be thorough and comprehensive after wide consultations with stakeholders to avoid unnecessary litigations.
The recent passage of The Supreme Court (Number of Judges) Amendment Bill, 2019 that increased the number of Judges in the Supreme Court from 31 to 34, including the Chief Justice of India, is a welcome step. Speedy Justice is not only a fundamental right but also a prerequisite of maintaining the rule of law and delivering good governance.
In its absence, the judicial system ends up serving the interests of the corrupt and the law-breakers.
Judicial reforms, if taken seriously, expeditious and effective justice can see the light of day and improve India’s standing in the reports of the World Bank and other institutions and organizations that study judicial processes.
