N.R. Madhava Menon
The 13th Finance Commission's recommendation to allocate Rs. 5,000 crore to improve the justice delivery system constitutes a landmark opportunity.
Never before in India's judicial history has the government come forward to invest a large sum, Rs.5,000 crore, to improve the justice delivery system. The 13th Finance Commission recommended this for the five-year period 2010-15. It is to the credit of Union Law Minister Veerappa Moily that the judiciary has at last received the attention it deserves, to be able to implement his Vision Plan of reducing the life-span of a case in the system to three years, a target to be achieved within a three-year period. Whether the judiciary, which historically has been reluctant to absorb changes, will rise to the occasion and implement the Plan now depends entirely on the judges and lawyers who operate the system.
How could the money be utilised in time and with good effect? Would the High Courts be a little proactive and get an action plan prepared in advance without waiting for instructions from the bureaucrats in Delhi? Since the Union government seems to have approved in principle the need to make investments in the judiciary to expedite justice delivery, one can expect more money being made available beyond 2015, if the judiciary is prepared to deliver, modifying in the process the systemic and processual ills that have been plaguing it for long.
There are six components to which the money is earmarked, all of which may not be equally relevant to all the States. Obviously the focus of the expenditure is on the trial courts where over 90 per cent of all arrears reside. However, the administrative and supervisory control exercised over them by the respective High Courts is so absolute that nothing much can happen without the Chief Justice and the portfolio judges in charge of the districts concerned allowing them the freedom to innovate and change. It is hoped that High Courts for once would welcome the initiatives from below and provide the leadership for the effective implementation of the plan even if they do not personally support the changes proposed. This may require amendment to the rules of the court: on an experimental basis this could be allowed in those districts where the plan is to be implemented. The causes of delay are not the same everywhere and a district-wise approach alone can be effective in the beginning. It is more so because the support of the Bar and court staff are critical for the success of the plan. This is easier to mobilise at the local level.
Half the money (about Rs.2,500 crore) is set apart to increase the number of courts operating during morning and evening hours, staffed either by regular judges on payment of additional compensation, or by re-employed retired judges. Andhra Pradesh, Gujarat and a few other States have already experimented successfully with courts working in shifts, and they will naturally have a headstart in being able to expand the scheme throughout the State with the Central funds now available. It is for the High Court to decide what type of cases should be referred to the shift courts. If they are assigned small cause matters or petty offences, both pending and current, the regular courts will be left with more serious matters requiring greater attention and more judicial time. Each State will thus be entitled to double the existing number of courts through the shift system, with no additional investment on physical infrastructure.
The High Courts will be well advised to act quickly to recruit the required number of judges and staff, invest in their training for the tasks assigned, work on the rules required to regulate their functioning, and put in place a monitoring cell in the High Court to coordinate and oversee implementation.
ADR centres in districts
Considering the potential of Section 89 of the Civil Procedure Code (CPC) for the settlement of cases without trial, a sum of Rs.850 crore is assigned. Of this, Rs.100 crore is to hold 10 mega-Lok Adalats per High Court each year, and five Lok Adalats a year in each judicial district of the States. As Lok Adalats are already part of the process of dispensing justice, its systematic expansion will not pose any serious problems.
The ADR centre, one in each district, is an innovative measure to address the problem of mounting arrears through the mechanisms of mediation, conciliation, arbitration and negotiated settlement as provided for in Section 89 CPC. There are mediation centres in some High Courts, but very few in the districts. An investment of Rs. 1 crore per district ADR centre is to be used to develop the physical infrastructure and training of mediators, conciliators and arbitrators. A sum of Rs.600 crore for physical infrastructure and Rs.150 crore for training that have been earmarked are attractive enough for the system to act swiftly for the effective implementation of these new judicial institutions at the taluk and district levels.
To augment the resources of the Legal Services Authority, an additional sum of Rs.200 crore over five years is earmarked. Again this sum is to be allocated to the States in proportion to the number of courts within their jurisdiction.
A sum of Rs.250 crore to provide additional support to train judicial officers, Rs.300 crore to equip State Judicial Academies with necessary infrastructure and another Rs.150 crore to train public prosecutors are recommended for the five-year period. A sum of Rs.15 crores per High Court to build infrastructure for judicial academies is provided.
The faculty and infrastructure now available in the Academies are inadequate. A cadre of judicial trainers has to be developed and the practice of deputing district judges temporarily to manage training programmes should end. There is need for trainers in the areas of information-communication technology, interpersonal relationships, court and case management, judicial administration, judicial statistics, judicial performance assessment, judicial planning and so on. At least a third of the faculty members of the judicial academies will need to come from outside ‘law', from management, social sciences, technology and public administration.
There is the need for a Dean of Academic Affairs in every judicial academy, who will not only develop and manage programmes but coordinate with other institutions in India and abroad to enhance the quality of training. There is the need for a research and publication cell in each academy.
The district judges are over-worked and have very poor professional support systems. They devote a considerable length of time on non-judicial work, to manage which they have neither the expertise nor the training. It is therefore a good initiative recommended by the Finance Commission to provide qualified court managers with degrees in management (such as MBA) or law to be employed to assist judges. In planning the docket, in mobilising the parties concerned and their witnesses, in coordinating the distribution of work, in monitoring progress and removing bottlenecks, in helping assess performance and providing liaison with the public under instructions from the judge, the court manager can give assistance to make a significant difference in judicial administration.
Heritage court buildings
There are courts at the trial and appellate levels that are over 100 years old: some of them date back to the East India Company. For the restoration and conservation of 150 such buildings, Rs.450 crore has been allotted. This will help tell the story of the noble traditions of Indian justice for future generations if it is coupled with setting up a museum containing oral history accounts from lawyers and judges associated with each court, and rare court documents from different periods.
The government has declared that the next 10 years would mark the “Decade of Innovation” in every sphere of life, and the next five years, a period for judicial reforms. In pursuance of this, the Law Minister announced a National Litigation Policy under which government litigation is to be regulated to avoid unnecessary cases being filed by public authorities. The Finance Commission advised the government to release the money for States under this package, seeking that States also announce a litigation policy on the lines of what the Union government has done.
The grants announced to the States and the High Courts are without the sort of conditionalities usually attached to Centrally-sponsored schemes. The release of yearly instalments is, of course, based on the utilisation of funds allotted to the six different components of the scheme. It is now up to the High Courts in consultation with the State governments to quickly prepare plans in their respective jurisdictions and start implementation within the next few months. The State Judicial Academies should be asked to do the preparatory work under the supervision of a committee of senior judges, if necessary seeking advice from consultants. The litigant public now has a right to demand from the judiciary quicker delivery of justice, planned elimination of arrears, and enhanced access to justice. The judiciary is indeed on trial on its commitment to timely justice. No more alibis would be acceptable to the public.
(Professor N.R. Madhava Menon is the Founder-Director of the National Judicial Academy, and a former member of the Law Commission of India.)