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Judicial Office as Public Service: Need for Cultural Research & Innovation

Krishan Mahajan is Additional Registrar, Centre for Research & Planning, Supreme Court of India; Fellow Columbia Law School, U.S.A. & Japan Foundation, Tokyo, Japan

There is a need to look at the judicial system in India on the basis of the fundamental rights of socio-economic justice in the context of fundamental right to culture given in Article 29 of the Constitution of India. This alone will make the judiciary into a Constitutional Institution of public service and take it out from the perennial controversy of arrears-s judge strength. The district courts which are the grass-root institution for formal justice need to be converted into social multipliers, public service centres and innovation centres rooted in the culture of the people within their respective territorial jurisdictions. The immediate need is for in situ research units located in the district courts themselves. For this leadership has to come from the High Courts which control and superintend the district courts and from the collegium of the Supreme Court. The question is whether judges at the commanding heights of the judiciary have the conscience and the will to do this?


  1. Introduction

The debate on the judiciary in India revolves around number of judges, infrastructure, introduction of technology, pendency, disposals, arrears and treating some of the court buildings as heritage buildings. The manner of appointment of judges and judicial conduct is an episodic topic involving shades of judicial independence.[i] The Supreme Court of India makes declarations that the access to justice is a fundamental right, without enforcing the same despite its specific enforcement duty under Article 32 of the Constitution of India.[ii]  Reports of the Law Commission of India and by the Supreme Court itself on many of these issues are aplenty.[iii] But the courts are not discussed as part of the overall local to national culture of dispute settlement that has always existed in India. A stark example of this is arbitration, wherein most of the business and family disputes are settled by the traditional indigenous mechanisms not covered by any statute or the formal legal system run in the English language.[iv] The contribution of this evolved indigenous system in preventing the formal systems from being engulfed by a gale of litigation is not even recognized. The result is that even statutory experiments like Gram Nyayalayas fail in their objective of delivering speedy and inexpensive justice to 72.2% rural citizens of India’s 6,38000 villages. The study by the Indian Law Institute (ILI) of the functioning of Gram Nyayalayas in Madhya Pradesh and Rajasthan concludes that the Gram Nyayalayas Act 2008, have not achieved any of the objectives of the Act.[v] The failure was due to lack of awareness of the law in the villages, the use of the normal district judiciary to discharge the functions under the Act and no proper transport, premises or staff for the urbanized judiciary and lawyers compelled to travel to the Gram Nyayalayas in the villages.

There is thus a need for cultural innovation and research concerning the courts and the judiciary for any meaningful debate of access to justice. Judicial independence does not mean shutting the judicial eye to the culture and the problems of the people in the territory where the formal court is. This must begin with the district courts, the admitted foundation of the formal Indian judicial system.

  1. Innovation

The minimum desiderata for excellence as a judge are integrity and competence.[vi] Without integrity every other attribute is washed out. Without competence, integrity itself comes under a cloud. But the extra input that needs to be worked upon for achieving excellence mandates innovation.  This is so because the world has progressed because of the unique human trait of doing things differently, in howsoever a small measure, to be better——in the quality, manner, pace and time in which the end product is delivered to satisfy the innate instinct for justice. This can be broadly summed up as a cultural way of looking at courts and justice or court management. The litmus test for this is the satisfaction of the litigants and all those participating in dispute resolution through the court or through statutory forums outside the court.

III. Valuing Litigants Time

Quality, pace, manner and time of delivery start with how a judge organizes his time? There is a unit of time expenditure of a judge’s activities within and outside the court.[vii] Any innovation concerning court time must necessarily start with the judge himself. This may require a shift in the thinking process. The shift is to consider your time in terms of the parties in the dispute resolution process. A judge, who considers their time to be valuable, will organize his time to add value to the party’s value of their time. This train of thought leads him to apply himself robustly to his case files. The judge is his own innovator. He finds new ways to master his files for each day before he goes to the court. This is innovating to increase his own competence vis-a-vis his files. Associating brilliant law students of local law schools, colleges or departments is one way of the many ways of travelling a different path to save time on a file. This bonding need not be limited to the law. If a case demands, then it can be extended to other departments of knowledge available locally.

  1. Courts as Social Multipliers

Educated trained youngsters become familiar with the courts and the legal education of senior students of law becomes vocationally relevant. A judge awakens to the need of areas of knowledge other than the law. Teachers and heads of institutions become involved with their students participating in the local courts work. The eternal judicial values of public service through the judicial office come to the fore, as the judicial office becomes an integrative local force. The judge also learns how to take the benefit for public good, of local institutions and people while safeguarding the independence and integrity of the office. The mandatory facility of an office at home, declared by the Supreme Court in the All India Judges Association case, will be used more fruitfully. Walking the last mile to judicial excellence starts with the judge and the case file itself. No electronic gadgetry yet exists to substitute the study and mastery of the case file. Hence the innovation of marrying the global public interest through courts with the local, becomes a multiplier. District courts then can have the District Gazette relevant to their work. Their libraries can reflect local culture. They become centres of training of legal translators of local language into English and vice-versa along with local legal education centres, to trigger local employment. All this could increase the legal business base of the local Bar.

  1. Courts as Public Service Centres

The interaction of the judge with the local institutions and ordinary people makes it possible to ensure transparency in the court’s functioning. The district court for the majority of the people is the ahlmad (the keeper of files) and the reader. These are difficult offices for the ordinary citizen to tackle. Their difficult and transactional attitude becomes less to the extent that the magistrate or the judge is a public person. People become confident about the court administration and getting their work concerning a case done by it. The court is perceived as a center of social or public service relevant to various kinds of suffering.

  1. Ongoing Court Research & Innovation

The foundation of such relevant innovation is constant study and research. Which step or process in each kind of case takes up the most time, why does that happen, what can be done to reduce it in consonance with legal and judicial standards, are questions that need to be constantly answered if the largest number in the largest number of grassroots courts are to be effectively and efficiently served by the law through the courts. These courts today are litigation and also, mediation, conciliation and negotiation centers. For how many litigants the court language is a stumbling block and the courts places of painful awe?

VII. In Situ Research Units

Law Commission reports concerning the district judiciary (unfortunately called by our Constitution as the Subordinate Courts) and Supreme Court judgments have never referred to the need and necessity of in situ research units in these courts. Instead a top down approach of management through National Court Management System, Supreme Court e-committee and a National Judicial Data Grid has been foisted without any consultation with the district judiciary. This necessitates reading Entry 11-A in the Concurrent List of the Constitution, “Administration of justice, constitution and organization of all courts, except the Supreme Court and the high court” together with Entry 65 in List II,” Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in List II.” A gap between jurisdiction and powers of district courts concerning subjects mentioned in List II, which concern all those resident in a State, and the administration of justice, constitution and organization of courts, creates large problems of infrastructure, judicial and staff strength not matching the jurisdiction and powers. Central Finance Commissions allocate funds for various infrastructure, evening and fast track courts, judicial training programmes through State Judicial Academies but none for in situ research units in the district courts themselves concerning the number, nature and time use of litigants in cases divided under each statute that is relevant to a case. Thus, financial planning for the courts by the Central Government is flawed right at the outset, in the absence of relevant litigation-litigant data from the subordinate courts concerning even the cases relating to the Union Government’s laws. We have never heard about the need of such research and planning cells from the Union Govt’s Department of Justice in the Union Ministry of Law &Justice. This makes the National Policy of Justice[viii] For all a mere hallucination.

VIII. Law-Development-Justice Gap

If the litigant -case method of burden on the district courts in terms of the ease of the litigant-case flow is researched in each district court and then juxtaposed against the chronic problems of district and development programmes on health, nutrition, education, and skills in terms of legal entitlements of the population under the jurisdiction of a district court, a meaningful profile of the law— development – justice gap would emerge. This gap would give the realistic measure of the number of courts, judges, staff and infrastructure facilities minimally necessary in the territory under each of the district courts of a district. The planning, funding and execution of a court programme for each district then is not divorced from the human development index of a district in terms of the vast array of Central and Government schemes to enable constitutional justice, mandated by the Directive Principles as “fundamental in the governance of the country.[ix]

For seventy years, we have denied development justice under such schemes through the district courts to our population which lives in the districts of India. Politicians in power in the last seventy years have achieved this dubious goal of denial[x] of development justice to Indians as mandated by the Directive Principles, the statutory laws and administrative schemes by the simple device of not enacting a law through Parliament under Article 32(3) to confer on the district judiciary the power to issue writs for violation of fundamental rights. Let this method of denial of fundamental rights to millions of Indians be not reinforced by denying them further access to district court justice even through the usual civil and criminal law. The district courts today have the jurisdiction and powers of the pre-independent British legal system to enforce law, minus independent India’s constitutional power to enforce justice based on fundamental rights. But the political – administrative management of “administration of justice” constitutional power through List III read with Article 246(2) continues to deny the district judiciary to do justice even according to statutory law.

The absence of the poor in the district courts in terms of their positive claims to entitlements to legal aid to push such claims of justice, speaks of the distance of the district courts from people in their territory who deserve development justice. This is so because the district judge is the head of legal aid in each district. The spasmodic rush for information every two years or so for the All India Chief Justices Conference in the Supreme Court, depending on what a Chief Justice of India desires, and that too limited to pendency, disposal, institution of cases extrapolated to HDI parameters for assessing judge strength only, is not administration of justice as required by the Constitution, which postulates social, economic and political justice. The All India Chief Justices Conference has never thought of having Development Justice Courts on its agenda. It has generally focused on the arrears – judge strength controversy.

  1. District Court as an Innovation Centre

The research unit within each district court will become the statistical collection and analysis unit of the existing dispute settlement mechanisms that people operate themselves, why they find these more comfortable than the court’s litigation cum ADR approach and the condition of the people under the district court’s jurisdiction especially of vulnerable and helpless sections of village or urban residents. The district court becomes the suo motu guardian of children, women and others under its innovation of ensuring justice to all those within its jurisdiction.   It also becomes the collector and protector of the cultures of dispute settlement and ways of life diversity, so as to give meaning to the neglected area of ‘custom or usage’, mentioned in Article 13(3) (a) of the Constitution of India.

  1. Two Conditions Precedent

But for such re-engineering of district courts as active deliverers of constitutional justice there is a need for a public sector in the legal profession and the right of citizens to be informed of their entitlements.

[a]. All India Lawyers Service

The justice delivery work of the district courts will require an organized body of lawyers to put up the cases for the court or for its ADR mechanisms of those denied their entitlements. The Union and State Governments either by themselves or jointly will have to set up an All India Lawyers Service selected on merit and meant to work as a dedicated task force in the delivery of entitlements.

[b]. Right to be Informed

To get the support of those who are entitled there is a need to implement the right to be informed. The government information unit in each district can be made responsible to ensure this right, failing which, members of the All India Lawyers Service can step in. This right to be informed is different from the right to know and the right to information, to the extent that these imply a knowledge on the part of the seeker of information as what he has a right to know or be informed about. Conceptually, the right to be informed is part of the right of access to justice. But the Supreme Court in any of its judgments on access to justice has not considered the right to be informed as the foundation of justice and democracy.

  1. Legislative, Administrative and Court Justice

As part of this access to justice the members of the All India Lawyers Service will have to first seek administrative justice from those administering the entitlement schemes in the district. Only after this, if necessary, they will resort to the court. A new corps of lawyers will be built up –— administrative justice lawyers for the tribal, the scheduled castes and the OBCs. Based on their field experience joined by the research studies of the district court research wing these lawyers can also seek legislative justice. This lawyering cum administrative and court justice has been the missing element of developmental justice for the last seventy years. It is strange that while creating constitutional consumers[xi] of goods and services, (that is those who do not pay at all or pay nothing compared to market rates for the goods and services provided under schemes and statutes) the managers of the Indian State did not configure these elements of justice delivery into the schemes and laws concerning entitlements of the deprived. The National Food Security Act, 2013 is a startling example of this configuration failure. The rule of law and the delivery of constitutional justice even under this statute are left to the whim, fancy and discretion of the government officials administering the Act, which covers about 70% of India’s population.

XII. Constitutional Consumers into Market Consumers

The work will be inter-disciplinary as entitlements cover a range of disciplines and institutions in a district, like, education, skills, health, land and agriculture as also local manufactures, marketing, bank/ government finance. The district judiciary becomes an integral part of the lives of people in each district in a pleasant and meaningful way, especially with the use of modern technology. Innovation becomes a positive cultural force for the creation of a constitutionally just society. It is this kind of innovation which will convert constitutional consumers into market consumers as they become physically and job-skills enabled. The economic growth engine then gets a kick start from the majority of the population that starts as a constitutional consumer. Otherwise the proposed All India Judicial Service will simply be only an addition to the existing judicial bureaucracy called the judiciary, which keeps on piling arrears and multiplying the declarations of fundamental rights without executing or enforcing them. A declaratory judicial bureaucracy is no different from the equally declaratory politico-administrative bureaucracy that declares the law through legislatures, subordinate legislation and schemes, without bothering for their implementation.

XIII. Judicial Leadership & Careers

Any such aforesaid plan to innovate the district judiciary into one of judicial service for constitutional consumers necessitates a leadership from the Chief Justices of high courts. This is so because under Art.227 a High Court superintends all the district courts. Under Article 235 control over district and subordinate courts is vested in High Courts. Under Article 227, High Courts have the power of ‘Superintendence’ over the subordinate judiciary. It is only the high court Chief Justices who can re-engineer the parameters of performance of the district judiciary and accordingly determine the work done for constitutional consumers in each district court as having a weightage which will make a significant difference to their career chances.

The most effective leadership for change in this direction can come from the Chief Justice of India and the Supreme Court. If the Supreme Court collegium were to take the performance record of a high court chief justice in the management of the district judiciary ‘s service to constitutional consumers in the State concerned, then high courts would possibly ensure the creation of research and statistical units in each district court as engines of service to constitutional consumers.

XIV. Law Innovation Centers & A Service Chain

Chief Justices of high courts are the chancellors for the National Law Universities in India. For most of them the Chief Justice of India is the Visitor. Hence these Chief Justices combined can create Law Innovation Centers in each of their respective Law Universities. Legal education will attain meaning as it serves as a resource base for providing trained manpower for each district and the constitutional justice at the district level increasingly becomes the focus of purposeful research in association with the research units of the district courts. Law students of national law universities will then probably not be heard muttering that after coming to the university through an all India competitive exam, they found that they had lost the reason to be there. The students would become gainers not losers as class room teaching is sharpened by ground reality of the districts. Since the entire network of legal aid is under the Chief Justice of India and the Chief Justices of High Courts, legal education, the judicial service and lawyering unite to serve the goal of constitutional justice to constitutional consumers in each district of India. The constitutional superintendence by the high courts of the district courts will make the high court’s auditors of constitutional consumers served in each district and in turn will make the Supreme Court as the supreme judicial monitoring agency of the entire service chain from the district to the Supreme Court. The question is whether the judges at the commanding heights of the judiciary have the conscience and the will to do this, given that they are wholly unaccountable in their extra-constitutional functions of legal aid, legal education, foreign trips and judicial administration?

References:

[i] S. P. Gupta vs UoI, AÍR 82 SC 192; Subhash vs UoI, A’1991 SC 631; Supreme Court Advocated on Record Association vs UoI, (1993) 4 SCC 441; In Re Presidential Reference, A’1999 SC 1; Supreme Court Judge V. Ramasawami’s Impeachment Motion in Parliament on May 10, 1993 after he was found guilty by the Statutory Committee of a sitting Judge of Supreme Court, Chief Justice of Bombay High Court and a Retired Judge of Supreme Court constituted under the Judges’ Inquiry Act. The motion failed due to abstention from the House by 205 Congress MPs.

[ii] All India Judges’ Association & Ors.  v. Union of India & Ors. (2002) 4 SCC 247; P. Ramachandra Rao v. State of Karnataka [JT 2002(4) SC 92]; Brij Mohan Lal v. Union of India & Ors. (2012) 6 SCC 502; Malik Mazhar Sultan & Anr.   v. Uttar Pradesh Public Service Commission & Ors., Appeal (C)No. 1867 of 2006, Order dated 04.01.2007; Imtiyaz Ahmad v. State of U.P. & Ors., (2012) 2 SCC 688. Anita Khushwa vs Pushpa Sadan 2016(7) SCALE 235.

[iii] 1924-1925: Civil Justice Committee Report (Justice Rankin Committee);1949: Chief Justice of Calcutta High Court’s Report;1952:  Judicial Reforms Committee, Uttar Pradesh;1958: 14th Report of the Law Commission of India on “Reform of Judicial Administration”, Vol.I;1972: Report of the High Court Arrears Committees; November, 1978: 77th Report of the law Commission of India on “Delay & Arrears in Trial Courts”;February, 1979: 78th Report of the Law Commission of India on “Congestion of Under-Trial prisoners in Jails.”;May 10, 1979: 79th Report of the Law Commission of India on  “Delay and Arrears in High Courts and other Appellate Courts”;1986: Satish Chandra Committee Report; July 1987: 120th Report of the Law Commission of India on “Manpower Planning in Judiciary: A Blueprint”;July 1987:121st Report of the Law Commission of India on “A New Forum for Judicial Appointments”;1988:124th Report of the Law Commission of India on “The High Court Arrears – A Fresh look”;1989-90: Report of The Arrears Committee (Three Chief Justices Committee : Kerala, Calcutta & Madras);November, 1999: First National Judicial Pay Commission Report, Vol. I;2001-02: Department Related Parliamentary Standing Committee on Home Affairs : 85th Report on “Law’s Delays: Arrears in Courts”;March 31, 2002: Report of the National Commission to Review the Working of the Constitution, Volume I;  March, 2003: Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs Report (Volume I);February, 2004: 189th Report of the Law Commission of India on  “Revision of Court Fees Structure”; July, 2014: 245th Report of the Law Commission of India on “Arrears and Backlog: Creating Additional Judicial (wo) manpower”; September, 2011: Report of the Working group for the 12th Five Year Plan (2012-2017) Department of Justice, Ministry of Law & Justice, Government of India; February, 2014: Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice: 67th Report on “Infrastructure Development and Strengthening of Subordinate Courts”; April, 2008: Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice: 27th Report on the Action Taken Replies on Law’s Delays: Arrears in Court, 2008, P.2-3.;2001-02: Department Related Parliamentary Standing Committee on Home Affairs: 85th Report on “Law’s Delays: Arrears in Courts”; May 2, 2012: Office Order for Establishment of National Court Management Systems, Appendix A of Action Plan; Resolutions Adopted in the Chief Justices’ Conference 2016, 2015, 2013, 2009.

[iv] Grain & vegetable merchants, Motion Pictures Association, Bullion and Diamond merchants, Textile manufacturers and wholesalers, Paper Merchants, Matrimonial Disputes among the Scheduled Castes and Scheduled Tribes.

[v] ILI New Delhi, A Study of Effectiveness of Gram Nyayalayas in MP and Rajasthan, initiated by Department of Justice, Ministry of Law, Government of India.

[vi] 1948 Universal Declaration of Human Rights; 1976: International Covenants on Civil & Political Rights and on Economic, Social and Cultural Rights. 1985: UN Basic Principles on the Independence of the Judiciary; 1992: All India Chief Justices Conference & Restatement of the Values of Judicial Life; 2002: The Bangalore Principles of Judicial Conduct as revised at the Round Table Meeting of Chief Justices at The Hague.2005: Code of Judicial Ethics, International Criminal Court;2005: Tarak Singh vs Jyoti Basu, (2005)1SCC201;2011: Thirteenth and Fourteenth Finance Commissions & Notification dated March 15,2011, Union Finance Ministry.

[vii] Daya Shankar vs H. Ct of Allahabad (1987) 3 SCC1: Judicial officers cannot have two standards, one in court and another outside the court.

[viii] National Mission for Delivery of Justice and Legal Reform- “Towards Timely Delivery of Justice for All’, Union Ministry of Law, promised to set up a Special Purpose Vehicle “to eliminate all arrears from the Indian judicial system by December 31, 2012 by treating all cases pending as on January 1, 2009” as arrears.

[ix] Article 37, Constitution of India

[x] Bihar Legal Support Society vs Chief Justice of India, (1986) 4 SCC 767 “…that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance or illiteracy. They are not aware of the rights and benefits conferred upon them…they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice”.

[xi] Mahajan K. ‘the Constitutional Consumer’, p. 1-7, in Global Consumerism; Opportunities and Challenges, eds. Prof. (Dr.) P.S. Jaswal & Ors., Rajiv Gandhi National University of Law, Punjab.

 

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