It is apparent that the judicial system (like every other system of this mango republiuc) needs to be completely overhauled to make it responsive to the citizen and the needs of a democracy. The judicial system needs special attention, because it is the final upholder of the constitution and democracy. To begin with, the selection process of the judges needss to be at least as rigrous as that of the IITs and IIMs. Only the most promising should be allowed. Then, we need to have system for psychological profiling of the judeges to ensure there are no pshycopaths, liars, weak kneed, non-independent, corrupt, morally and intectual feather weights. We need to train the judges that they are not master of the fate of individuals, but a servant of the laws, that is to say, where a law exists, they need to implement it to the letter and spirit, and keep in abayance their personal likes and dislikes. We need a system that rigrously scrutinises their performance / judgements vis-a-vis the laws of the land on a regular and sustained basis. And, finally, we need in place a system that ruthlessly boots the bad apples and rewards only those proven to deserve promotion.
I, however, differ with the view that we do not need more judges / courts. Anyone who has visited the lower courts, the consumer courts (even amazingly the National Commission), the high courts will easily be able to associate these "courts" with conditions prevailing in fish markets. It is shocking that these "courts" routinely have 20, 30, 40 even 50 matters listed for "hearing" evryday, with a maximum average allocatble time for "conducting" their hearings of maybe 3-5 minutes. There is simply no way that a judge, any judge no matter how brilliant, can deliver quality justice in 3 or 4 minutes. Even at the intoductory stage, many cases involve deep issues of law and fact that need to be properly read, understood and discussed before any fair and reasonable order can be passed by a judge. Compare the judicail proceeds of the civilised nations we get to see on various Tv programms. The judicial envoirnment is clean, peaceful and uncluttered. The hearings are patient and thorough. The judge is a no-nonsense task master. And what do we have here?!!! Since "independence" our population has increased 5 fold. So the number of judges should have gone up by a factor of 5, just to keep pace. If one allows for the many additional laws and the increased pace and complexity of modern life, the number of judges / courts should be at least 10, 20??? times more.
It does appear that Mr. Moily is not upto the job. He is too slow .... well behind the curve, when the country is facing the death thores and requires energetic and radical surgery and overhaul. His peacemeal approach, as in amending the laws and proccedures involving sex-related crimes, discloses lack of intellectual / comprehension capacity. Band-aids will not solve the disease.
But, somehow I am not at all hopeful. Our condition requires statesmen and stalwarts. What we have is pygmies.
--- On Tue, 12/29/09, Ravindran Major <majorravi@gmail.com> wrote:
From: Ravindran Major <majorravi@gmail.com>
Subject: [eGovINDIA] JUDICIAL REFORMS [4 Attachments]
To:
Date: Tuesday, December 29, 2009, 7:15 PM
Dear Mr Bhagvanji Raiyani While Mr Moily may be good in his intentions I am afraid he is spunkless and outright incompetant to fulfill his responsibilites. We already saw it in his move to exempt the judges from the RTI Act which was defeated in the Parliament. I also do not subscribe to the view that there is a need to increase the number of judges. Unless the issues of transparency, accountability and proces are resolved by increasng the numbr of judges we would only be creating more frankensteins to deals with. Today the courts have the least number of working days, least working hours per working day, least productive use of these minimum working hours (more than 60 percent of the time is wasted in a process called mustering where cases are just called to mark the presence of the parties involved and just adjourned, one of the most heinous crimes I can imagine in todays context where people are really charry of wasting even a second of their lives!). And coming to the judge-population ratio it is fraud being perpetuated by the judiciary. Adv Tulsi has rightly exposed this fraud in this presentation which is attached for your perusal. And then there are the umpteen quasi judicial bodies (each a law unto itself and a gross drain on the exchequer!) but whose numbers are not taken into into considerationwhle working out the judge-population ratio. Here is a case in brief about the consumer 'courts'. I had taken up three issues against the railways in a consumr complaint filed with the district forum here. The issues were: one, showing inflated distance on the ticket and charging for the inflated distance on the konkan route, two, exploting the consumers by insisting on him buying tickets from the starting station of the train to its destination while buying tatkal tickets (that is, if one was to buy a tatkal ticket to travel from Mumbai to Surat in a train originating at Mumbai and going to Jammu Tawi one had to buy a ticket from Mumbai to Jammu Tawi! This fortunately has been done away with by the present Railway Minister now) and thirdly, it was the right of the consumer to be trasported at superfast speed (55kmph on broad guage and 45kmph on meter gauge) if one was charged superfast charges. The district Forum took 8 months to issue orders and when the orders ame it was a shock. While maintaining that the issues were genuine grievances they dismissed the complaint saying that it was NOT in their jurisdiction! They were maganimous enough to direct me to approach the Railway Rates Tribunal under Sec 38 of the Indian Railway Act. I did that but the RRT promptly replied that it was NOT in their jurisdiction under Sec 37 of the IRA! I filed an appeal with the State Consumer Disputes Redressal Commission along with an application/ interim appeal to condone the delay. They even issued notice for hearing in both but one year later when they issued a three line order it stated that no application had been filed for condoning the delay! Scanned images of the notice and the order are attached. (The 'No representation' is also partly a fraud because the Commission has a camp sitting at Ernakulam (4 hours by bus from my place) one week every month and I had specifically requested for scheduling the hearings in my appeal/interim appeal during the camp sitting. But I was called to Thiruvananthapuram (overnight journey by train from my place!) on two different dates for the hearings (appeal first and interim appeal second!) which I had refused. So though I had not represented the real issue was I was NOT given the opportunity to represent.) I had taken up the up the issue of lie in the order with the National Commission stating specifically that I was not filing any appeal/revision but just complaining about the fraud perpetuated by the state commission and I was directed by the national commission to file a revision! And that is yet another FRAUD because whle considering the revision only the issues against the opposite parties (railways) will be considered and NOT the frauds perpetuated by the district forum and state commission. Copy of the fax I had sent to the president of the national commission and the union minister is also attached herewith for your perusal. The state of affairs of the information commissions, human rights commissions, women's commissions, SC/SC and minorities commissio ns are NO different. They are all avenues created to rehabilitate henchmen of the people in govt so that they can live in absolute luxury with NO responsibility/ accountability at the tax payers' cost. Signing off for now. regards n bw ravi
On Tue, Dec 29, 2009 at 12:21 PM, Forum for Fast Justice <fastjustice@ gmail.com> wrote:
JUDICIAL REFORMS
Hon'ble Moilyji,
We are forwarding herewith the suggestions of Hon'ble Justice Kamleshwar Nathji for your kind considerations together with our writeup on the subject circulated among thousands of our e-contacts.
I have carefully gone through the copy of the report of the 2nd Administrative Reforms Commission you gave me on 16th Jan. 2009.
Prepared under your Chairmanship, it meticulously covers almost everything on administration and something important on judiciary.
I intend to discuss some points with you from this report and some other important issues on judicial reforms.
Kindly give me the appointment on the date and time convenent to you.
With regards.
Bhagvanji Raiyani Chairman, Board of Trustees. 09820403912.
Respected Justice Kamleshwarnathji,
Thank you very much for your most valueable suggessions. I will soon forward them to the honble law minister and also to over a thousand of our e-contacts.
Bhagvanji.
On Sun, Dec 27, 2009 at 12:52 PM, Justice Kamleshwar Nath <justicekn@gmail. com> wrote: Dear Sri Raiyani, Greetings for a Happy New Year & Best Wishes for success in your remarkable efforts. You may consider the following as well: -
Effective control over enrolment and functioning of Advocates by reintroducing appropriate control over them by High Court in administrative side. -
Monitoring of & punishment (howsoever small) on State Officials who promote appeals/revisions to superior Courts without palpable and firm reason therefor. As you have put it, State is the biggest litigant in our country. -
Adopt ways and means to reduce institution of cases. This is possible in our country only if an effective system of Panchayati Adalats with greater powers is introduced. Now we have Constitutional mandate therefor, but who cares? -
Eliminate multiple tiers of Courts; High Court should become the last Court for all purposes except in matters of real question of interpretation of Constitution or of definite public importance. The Supreme Court and High Courts should learn to exercise self-restraint in admitting Petitions. Today, litigation in our Country is a 'Gamble', for nobody really knows what law may be laid down even in matters of little significance. -
Introduce 'Judicial Ombudsman', a concept which no judicial authority is prepared to touch with a pair of tongs. I have myself submitted a paper on this to Law Commission of India, besides forwarding it all top authorities in Judicial Establishment, including the Law Minister. Only the Chairman of Law Commission of India was kind enough to acknowledge receipt. There is no point in enlarging the list; you already have a long list. Since you are going to meet the Law Minister next month, you may place some of these points too which you feel like agreeing with. In any case do insist upon him to persuade the Govt. to pay proper heed to recommendations of Law Commission of India on important reforms. Wish you all the best. With regards, Yours sincerely, Kamleshwar Nath
From the Desk of : Justice Kamleshwar Nath -
| Retd. | : | Up-Lokayukta ( Karnataka ), Vice Chairman – C.A.T ( Allahabad ), Judge – High Court ( Lucknow & Allahabad ) | | Address | : | `Gunjan', C - 105, Niralanagar, Lucknow : 226 020. Uttar Pradesh, India | | Phone(s) | : | +91-522-2789033 & +91-522-4016459. Mobile : +91-9415010746 |
FORUM FOR FAST JUSTICE Trust Reg. No. E 24875 (M) ____________ _________ _________ _________ _________ _________ _________ _________ _________ 4,Kuber Bhuvan, Bajaj Road, Vile Parle (W), Mumbai – 400 056. Tel.: 22972942 Tel. Fax: 26148872, E-mail : fastjustice@ gmail.com Website : www.fastjustice. org
JUDICIAL REFORMS: INDISPENSIBLE FOR PROTECTION OF DEMOCRACY
"Dad, when the case will be over? Beta, when you reach my age".
This was the title of my article in Mumbai Samachar, a Gujarati daily which was published twice: on 16-12-1992 and again on 9-12-1994. I am excerpting a small part of that article (translation) as hereunder:
"A reporter asked Sharad Pawar 'why don't you file a defamation case against Khairnar who levels all sorts of allegations against you which may cause immense damage to your image?' Pawar replied 'The court will take many years to dispose of the case'.
If Sharad Pawar is scared of going to the court, what about a common man?
Delhi's Tihar Jail has the capacity of 2500 prisoners but there are over 8000 and majority of them are undertrials whose sentences, if pronounced soon after the arrests, would have been over long back but the hearings in their cases have not yet commenced.
Apart from Delhi, if the benches of the Supreme Court are setup in Mumbai, Madrass, Calcatta, Bhopal and Hyderabad, no litigant has to travel more then 800 km and the cases can be disposed of faster but does the government and MPs care for us, poor Janta?"
To-day after 17 years of publishing this article the situation has not improved but has far more aggravated.
Janhit Manch and other five NGOs together started an agitation in 2002 but it didn't proceed further. Again Janhit Manch revived it slowly in 2005. In March 2007 Shri Prashant Bhushan, Senior Supreme Court advocate who runs an NGO in the name of Campaign for Judicial Accountability and Reforms, organised with the support of Janhit Manch a two day convention in Delhi on this subject. In December 2007 Janhit Manch held a two days convention in Mumbai on judicial reforms which was addressed by activists and experts invited from across the country. The whole programme was sponsored by a trust set up by Shri K.M.Goenka.
I, in my personal capacity as well as through Forum For Fairness In Education and Janhit Manch both founded by me, have filed 93 PILs (Public Interest Litigations) in the Bombay High Court and Supreme Court. Most of them were researched, drafted, filed and argued by me and I am not a lawyer. I am convinced after the torturous and delatory experience of the court which led me to setup Forum For fast Justice (Forum), a trust in 2008. The Forum has a certificate for exemption u.s. 80-G of the I.T. Act, 1961. Now Janhit Manch is left with PILs, free legal counselling and holding seminars on issues of Public Interest.
Law Commission of India, during last 54 years prepared and published over 200 reports on Judicial and law reforms under the expert guidance of best jurists of the country but they are all gathering dust. That was the reason our Forum has launched SAVE JUDICIARY-SAVE JUDICIARY, a nationwide movement.
There are over 35 million cases pending in Indian Courts, some of them are over 30 years old. People have lost faith in judiciary as they feel it is waste of time and money to go to court. Politicians in thousands and lakhs of people are converted into criminals as there is no fear from courts. We need to take drastic steps before it is too late. Who will do this work? Advocates? There is not much hope, why? Read further.
I addressed about 1200 appeal letters, each time 300 to the eminent lawyers of the country. In 1996 from Forum For Fairness In Education to help arrest the malpractices in education, in 2002 from Janhit Manch for fighting in the courts for good governance on various issues, in 2008 from Forum For Fast Justice for pushing judicial reforms and again Oct.-Nov. 2009 for the same purpose.
I worte: The lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Sardar Patel, Dr.Rajendra Prasad, Chittaranjan Das, Mohammed Alli Jinnah, Bhulabhai Desai, Kanaiyalal Munshi and many more were in the forefront during independence movement. They were the lawyers with a mission. Likewise you owe an obligation to the nation for liberating the people from the clutches of mafias in education/malafide and irresponsible governance/saving judiciary from being collapsed.
A perception is being built among the people that majority of lawyers want to continue the current judicial system for their selfish ends. It is the time now for all of you to resurrect the image of lawyers fraternity".
Believe me, only two advocates replied in Dec. 2009.
Till lawyers are coming forward, we, the wellmeaning citizens will have to take the movement far and wide with all the force and resources at our command.
See the hopeless situation:
MEDIA ON JUDICIARY
(i) SC judges determined not to declare assets.- Hindustand Times dated 12-1-2009
(ii) Comeback Trail. (an undertrial tribal released from jail after 54 years) - The Sunday Express dated 22-1-2006.
(iii) HC raps state over consumer courts. Over 17,000 Cases Are Pending In Various Courts, Some Since 1990. - Times of India dated 13-11-2008.
(iv) 351 appointed HC judges sans collegium nod. - Times of India dated 7-1-2008.
(v) Murder over Rs.5, case drags on for22 years. - Times of India dated 2-5-2007.
(vi) India's first night court in Gujarat. - Times of India dated 5-11-2006.
(vii) Court delays trigger lynchings. - Mumbai Mirror dated 27-9-2007.
THE JUDGES ON JUDICIARY Our justice delivery system is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the judiciary but also by the legislature and the executive.
People had lost faith in the other two wings of the State much earlier. Unfortunately, the faith of a common main in the judiciary is also being eroded.
Justice S.B.Sinha, Judge, Supreme Court of India.
Even as the judges have wrested the power, wthout constitutional justification, to appoint their brethren in the dubious guise of independence of the judiciary.
Justice V.R.Krishna Iyer, Former Supreme Court Judge
If we want to save the nation, the democracy with lofty ideals, the judiciary must be saved.
Justice R.C.Lahoti, Former Chief Justice of India.
Upto 20% of judges in India are corrupt, Justice Bharucha, former CJ!
(i) Govt needs to set up more courts: CJI - Times of India dated 12-11-2008.
(ii) Handfull of judges corrupt: CJI - Hindustan Times dated 5-2-2007.
(iii) CJI: 10,000 courts needed. - Times of India dated 7-2-2009.
(iv) 38 million cases pending in India.77,000 Judges Needed To Clear The Backlog, Says CJI K.G.Balakrishnan. - Times of India dated 22-12-2007.
(v) Delhi HC will take 466 yrs to clear backlog: CJ. - DNA dated 14-2-2009.
(vi) At 175 yrs, it's India's oldest case. Calcutta HC - Times of India dated 10-11-2008.
(vii) 300 years to clear court backlog. CJ Orissa - Times of India dated 17-11-2008.
(viii) Delhi HC has under 5 mins. for a hearing. - Times of India dated 16-2-2009.
THE PIL IN SUPREME COURT: Writ Petition (Civil) 122 of 2008 The campaign has received its first boost in April 2008 when the Supreme Court ordered to issue notice to the Union Government to file its affidavit in a PIL (Public Interest Litigation) on Judicial Reforms filed jointly by Janhit Manch, Common Cause, Lok Sevak Sangh and Shri Ravi Goenka, an activist C.A. from Jaipur. This petition is the outcome of about a year's research and hard work by advocate Prashant Bhushan and his team of juniors. Shri Shanti Bhushan, his father, one of the seniormost lawyers of the Surpeme Court and the former law minister of india, also worked on this PIL. Subsequently all states were made party Respondents. We covered following and several other issues in the said PIL.
(i) S.C. Order not implemented: – That this Court had directed an increase in judges strength from an inadequate 10.5 per 10 lakh population to 50 judges per 10 lakh population, by April 2007, in a phased manner ('All India Judges' Association', Vs. Union of India (2002) 4SCC 247). No action.
(ii) Delay in filling up vacancies - this Court had directed that all existing vacancies in the subordinate courts at all levels should be filled up if possible by March 31, 2003 in all the States, however, even this direction is yet to be complied with. ('All India Judges' Association) .
(iii) Lack of commensurate infrastructure - this Court had directed that in order to have additional Judges, not only the posts have to be created, but infrastructure required in the form of additional courtrooms, buildings, staff etc., would also have to be made available. ('All India Judges' Association) . No action.
(iv) Lack of adequate importance given by the Government reflected in poor budgetary support - That during the 10thPlan (2002-2007), the allocation to the judiciary was Rs. 700 crores, which is .078 % of the total plan outlay of Rs. 8,93,183 crores. Such meager allocations are grossly inadequate to meet the requirements of the judiciary. While the expenditure on the judiciary by our country is so low, in Korea it is more than 0.20%, in Singapore it is 1.20%, in the U.K. it is 4.30% and in the U.S. it is 1.40%.
(v) THE PRAYERS:
(a) To implement the specific directions in the judgment in 'All India Judges
Association' (2002) 4 SCC 247:
(b) By increasing the strength of the judges from 10.5 per 10 lakh population to 50
judges per 10 lakh population in 5 years,
(c) By filling up all existing vacancies in the subordinate courts at all levels in all
the States in one year and By appointing as many ad hoc judges as may be
necessary to clear the backlog of cases;
(d) By putting in place / making available the required infrastructure in order to
accommodate all these judges.
JUDICIAL CORRUPTION The corruption in judiciary is less visible because of the lack of any system of accountability of the judiciary and because the media is unwilling to talk about it due to the fear of contempt.
One cannot even register an FIR against a judge taking bribes openly without the prior permission of the Chief Justice of India which is rarely been given.
GOVERNMENT : THE BIGGEST LITIGANT is common experience that a large number of cases with no merit are taken to the higher courts in appeal or revision by the government and this is done mechanically without proper scrutiny whenever the government suffers an adverse decision.
ALTERNATIVE DISPUTE RESOLUTION (ADR), Adjudication, Mediation or Conciliation, Court Attached ADR System and Court Ordered Arbitration. The ADR should be widely used.
AD-HOC JUDGES are provisions in the Constitution for the appointment of ad-hoc judges / retired judges. (Articles 127, 128 for the Supreme Court, Article 224-A for the High Courts) which are not being used presently. The principle should be that there should be no vacancy in these Courts at any given point of time.
JUDICIAL COMMISSION courts have rejected the judges' inquiry bill. The Law Commission has suggested to setup a Judicial Commission but the judiciary opposes that too. The Commission would consist of persons from the judiciary, the executive and the legislature, and their recommendations with regard to appointment of judges made binding on the President.
The present mechanism for appointment of judges of higher courts has become very dilatory and ineffective. The Supreme Court's judgement arrogating to itself the complete power of appointmet of judges has made the remedy worse than the disease. It is absurd to assume that in a democratic society any organ of state should perpetuate itself without any degree of accountability to the people as the ultimate sovereigns. Nowhere in the democratic world have the executive and legislature been made so utterly impotent in matters relating to judicial appointments as in India.
Therefore the Judicial Commission should be empowered to appoint and try an errant judge and upon the recommendations of the Judicial Commission the President should be empowered to remove the judge held guilty of high crimes and misdemeanars.
CHECK ON JUDICIARY IN OTHER COUNTRIES:
All the 50 states of U.S. Have ratified commission on judicial performance. The President's nominee for appointment as a judge has to go through the scrutiny and interview by senate committee.
Spain, Sweden and Finland have ombudsman systems which receive complaints against judges and have power to give decisions after holding proper hearing.
Canada has Canadian Judicial Council in place since 1971.
Judiciary in U.K. is fast and accountable, therefore no such system is required.
FORUM CARRIED THE FLAME, LIGHTED BY JANHIT MANCH.
A delegate in our convention held in Mumbai in December, 2007 asked me:
Judges Association of India could not get the Supreme Court order implemented for enhancing the judges strength form 10.50 judges to 50 judges per million population. How are you going to do that?
I replied: "Judges wan't come out openly in streets to enforce the order in their favour. If all other persuasive efforts for innovating and overhauling the judiciary fail, we will resort to Gandian means such as satyagraha, fasts, disbedience, non co-operation, contempt of court and courting arrests".
HUMBLE ACHIEVEMENT ON SAVE JUDICIARY-SAVE NATION MOVEMENT.
Just before last Parliamentary election in May 2009, we motivated about hundred citizens and NGOs to write separate letters to 33 political parties requesting them to make public commitment for judicial reforms in their respective manifestos. Seven of them did so including Congress and BJP. We personally met several of top leaders of parties for this purpose.
I met Rahul Gandhi at his Delhi residence on 16th Jan. 2009 and requested him to provide for judicial reforms in Congress Manifesto for ensuing Parliamentary elections, he immediately phoned to Shri Veerappa Moily, party's manifesto committee chairman and suggested to discuss the matter with me. Same afternoon I met Shri Moily at his residence with Kamalkant Jaswal and Promod Chawla, two Delhi activists and we discussed the issue at threadbare for 40 minutes. I handed over our Forum's brochure and other relevant material on the judicial reforms which he assured to go through carefully. Congress manifesto provided judicial reforms for pursual in right earnest.
Incidentally he became the Law Minister and again I met him on 27th June with five activists from Delhi and one from Chennai.
Shri Moily, himself a former Supreme Court Lawyer, Karnatak CM and the Chairman of the 2nd Administrative Reforms Commission enthusiastically went on announcing his plans for judicial reforms after assuming the office of Law Minister in June 2009. The whole nation read them with interest.
See the titles of his statements published in newspapers on 24-9-2009:
(a) Moily wants Woman Judge in SC: DNA.
(b) Moily Mission: Cut Case Life to 1 Yr. Times of India.
(c) Moily wants govt. to cut filing of cases: Times of India.
(d) 4 Law Schools of excellence on cards: Times of India.
Law minister's above referred announcements relate to 9 out of 19 of Forum's aims and objects, numerically reproduced from its trust deed as under:
(v) A system of monitoring of judges' assets, accountability and productivity to be evolved under special legislations.
(vi) To accelerate the wheels of judiciary so as to prevent social and political criminalization.
(viii) To introduce double shifts in courts, setting up more fast tract courts and strengthening the system of Alternative Disputes Resolution (ADR).
(ix) To invoke Article 224 & 224-A of the Constitution for the appointments of the additional, acting and the retired judges at the sittings of the High Courts.
(x) To increase the women judges and the judges from the backward classes without compromising the quality.
(xi) Aiming at fivefold increase in the number of judges and the courts for bringing down crores of pending cases to zero backlog level.
(xiv) To amend, overhaul or repeal the decades and century old statutes commensurate with the time.
(xv) Imparting quality education in the institutions of laws with their ambitious expansions, commensurate with the increase of courts, staff and judges.
(xvi) Offering attractive remuneration and incentives for attracting best and non corrupt legal talents to the judiciary.
We humbly believe that we have partly influenced the Law Minister. We will meet Shri Moily again in January 2010 with different set of proposals and continue to meet him in future also.
Thousands of brochures on judicial reforms separately addressed to the citizens, lawyers, MPs and Judges are being daily posted from Forum's office. Seminars on the subjects are being constantly organised on the subject across the country. It is a national movement. We are in the process of setting up Societies on judicial reforms in major cities and towns.
There is no better time than now to join this national campaign.
Bhagvanji Raiyani
Chairman & Managing Trustee,Forum For Fast Justice
09820403912
Trustees: Prakash Khatiwala, Kishan Goradia, Ramesh Kanakia, Hasmukh Parsana, Pravin
Dalal, Virendra Shah, Ashish Mehta and Omprakash Monga.
-- (Bhagvanji Raiyani) Chairman and Managing Trustee, Forum For Fast Justice. 09820403912 www.ubuntu.com www.openoffice. org http://www.janhitma nch.org/judicial delayssolutions. pdf COMPREHENSIVE Reforms for the Indian justice system --pg 16
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