By Shailesh Gandhi
Former Central Information Commissioner.
There is considerable
talk of Judicial Accountability in the nation, but it does not address the key
parameter of time-bound justice. Two in three persons who are in prisons are
under trials, most of whom may not have committed any crime. Right to speedy
Justice which has been recognized by the supreme court as a fundamental right
is violated daily in the courts. Justice delayed is justice denied. I decided
to take a look at the issue by looking at the data with the objective of trying
to estimate the number of judges required to achieve this. Data has been taken
from the Court News in the tag Publications) on the supreme Court website for
twenty quarters from January 2009 to December 2013
I noted the new cases
instituted in each quarter, disposal and the pending cases in the Supreme
Court, High Court and the District & Subordinate Courts. Using simple
arithmetic it is possible to get the number of months (pendency in each Quarter by dividing the
pendency with the number of cases disposed ( rows 15, 35 and 56 in the excel
sheet). This shows that the average pendency should be 10, 31 and 18 months
from the Supreme Court to the Subordinate Courts. Most anecdotal perceptions
are that it takes much longer.
The average vacancies in
the three levels are 12% for the Supreme Court, 30% for the High Courts and 20%
for the Lower Courts. When citizens are suffering acutely because of the huge
delays in the judicial system, there can be no justification for such high
levels of sanctioned positions being vacant. The dates of retirement of judges
are known in advance and hence the selection process could start even six
months in advance, so that there may be no vacancy. If all positions had been
filled promptly, and these judges had disposed cases at the same rate as the
existing ones, the average pendency for the three courts would have been less
than 0 months for the lower courts and the Supreme Court (cell V20 and V61).
This would have been about 9 months in the High court (V40).
This indicates that if
the principle of First in First out (FIFO) could be strictly followed, and no
vacancies kept, this may be the time for a case to go through the Courts. This
would not be feasible completely; but there can be no justification for many
cases taking more than treble the average time in the Courts. The Courts should
lay down a discipline that almost no case could be allowed to languish for more
than double the average time taken for disposals. Presently the listing of
cases is being done by the judges, with partial resort to computers and no
human being can really do this exercise rationally, given the mass of data. It
would be sensible to devise a fair criterion and incorporate this in computer
software, which would list the cases and also give the dates for adjournments
based on a rational basis. This is essential if we are serious about Article 14
of our constitution which guarantees equality before law. Certain categories of
cases may be given priority, based on a criterion, not the individual or the
lawyer. As an example, it may be logical to have all bail applications decided
in a week, but then the poorest would also get bail in a week, not only Salman
Khan. Cases which must be taken up urgently would be decided by a
pre-determined category. This would result in removing much of the
arbitrariness, and also reduce the gross inequity based on money power. If FIFO
is accepted, all vacancies filled and the principle that 95% of all cases must
be disposed within treble the average time is accepted, the maximum time at the
three Courts would be 9 months, 21 months and 9 months. If the number of
sanctioned post for High Courts was increased by a small number, all these
Courts could deliver justice in less than 9 months. There may be a few
exceptional cases which may take longer. Some people argue that there is a big
difference in the nature of the cases. However, over a large number of courts
and cases, the large variations due to different cases would even out and can
be used to compare or find possible solutions. Besides the evaluation is based
on 20 Quarters over five years, and appears to show some consistency.
My suggestions based on
the above are given below:
1. Courts must accept the
discipline that over 95% of the cases will be settled in less than treble the
average pendency.
2. The listing of cases
should be done by a computer program, with judges having the discretion to
override it in only 5% cases for very urgent matters. Such a program should be
developed with the inputs and judges and lawyers. It is necessary to understand
that the present system is completely arbitrary and the principle of First In
First Out would be fairer than the current one. Besides in 5% cases the
judicial override could still function.
If
these are followed, most cases would be disposed in a court in less than a year
and justice and equity delivered in the courts.
No comments:
Post a Comment