The state of justice - II

By N. R. Madhava Menon

AMONG THE three branches of Government, it is only the Judiciary which seems to have no set goals or planning to achieve whatever targets in its assigned functions. Any organisation, management science tells us, will perform only if it has clear shared goals and specific time-bound plans to achieve them. The goals and plans of the judicial system, if available, are not known to the outside world. Judicial policies are supposed to be discussed in judicial conferences which the Chief Justice of India convenes annually involving all State Chief Justices. With most Chief Justices having relatively short tenures, policy development suffers. In the absence of efficient in-house implementation mechanisms, implementation and monitoring are often neglected. Judicial performance is, if at all, audited by judges themselves which leaves no scope for objective assessment under empirically- verified criteria. The annual administration of justice reports which the High Courts prepare and the monthly statements which judges of the State Judiciary submit speak very little about the real state of affairs.

Every system has certain limits of performance based on the capacity of each of its components. Too much of overload tends to result in under performance, quality deterioration, system breakdown and ultimate collapse. However, periodical review and maintenance, research and development are seldom employed in the judicial system. The result is lack of information on the health of the system, on its malfunctioning parts and on how re- arrangement can possibly help better performance.

Management of the judicial system is in very bad shape. The policy of every judge being an administrator and demanding his her time and attention for managing systems in every court has not been useful. Everyone is dissatisfied except the corrupt court staff and the parties and their lawyers who want to use the judicial process to buy time or delay justice. Computers wherever supplied are mostly lying idle. Senseless routinisation, repeated adjournments on silly grounds, extended call hours wasting judicial time, scant regard for the witnesses summoned, total confusion with too many cases scheduled for the same period, lack of punctuality and preparedness on the part of lawyers and judges have all become characteristic features of many subordinate courts in the country. The regret is that no one within the system seem to be concerned except in holding occasional meetings and seminars which invariably give the usual justification for the situation.

It is time court management is taken out of the control of judges and entrusted to trained administrators who are made accountable for the tasks of modernising, maintaining and showing performance at all levels of the judicial establishment. Judicial time should be devoted to judicial work only. Financial autonomy is necessary for improving efficiency and productivity in the Judiciary. But financial autonomy in the present state of the system may not be a wise step in the public interest. If administrative autonomy is not able to arrest the deterioration, giving financial autonomy also without revamping the administration can be potentially counter-productive. No one will dispute the need for more resources, for modernisation of infrastructure and court control of administration. But the onus is on the Judiciary to demonstrate that judges have determined to put the system back on the rails and will ensure optimum use of scarce resources diverted to them from equally pressing demands on public funds.

One aspect on which the Judiciary took the lead in expediting justice is the popularisation of Lok Adalats to resolve pending cases. Some courts in certain States have institutionalised their functioning within the regular judicial apparatus with great profit. In many other States, it has not picked up the speed as expected, largely because of the apathy of senior judges and the indifference of the High Courts concerned.

The Conciliation and Arbitration Act, the Family Courts Act and the newly-amended Civil Procedure Code have incorporated abundant provisions for judicial activism in pre-trial settlements and diversion of cases to alternate dispute resolution channels. Nevertheless, the same attitude and mindset which led to the present predicament in the judicial system is continuing at all levels. No one seems to be eager to exercise power under the new laws or to risk the displeasure of vested interests including a section of lawyers and ministerial staff. Financial resources could have been saved by diversion and settlements and put to more productive use.

The same attitude of indifference is discernible in another vital aspect of administration of justice, namely legal aid to the poor. A set of judicial statesmen in the 1970s and 1980s initiated a series of changes to promote access to justice through popularising a dynamic concept of legal aid. Two decades later, Parliament was persuaded to endorse the concept. The Legal Services Authority Act entrusted the power and responsibility to organise and administer legal aid to the judges themselves. Judges who have not been as imaginative as their predecessors who initiated the movement and those who felt bogged down with their daily routine in courts, have let the legal aid machinery stagnate without even being able to use the funds allocated for the purpose in some places. Poor people continue to suffer denial of access and feel alienated from the court system. The idea of Chief Justices or their nominees controlling the legal aid apparatus has not served its purpose and is operating, with some honourable exceptions, to the detriment of justice to the poor. If nothing is done in the near future, a stage will come when despite the good work of many judges, the legal aid administration may have to be saved from the control of judges.

The Indian Supreme Court has not proposed a plan for phased changes in the entire system. Even while celebrating 50 years of service to the nation, no vision statement for the future was forthcoming from the Apex Court. Occasional speeches of the Chief Justice at public functions have been more in the nature of reactions to statements and criticisms from outside, rather than reflections of an agenda for systematic reforms. If judges believe that judicial reforms are not part of their official duties, they should be prepared for changes from outside which may be worse than the disease.

Finally, a word about the legal profession which prides itself as the agent of justice delivery and upholder of good governance. Whatever their role in the past, today the public perception of lawyers is far removed from justice and fair play. There is increasing distrust against the profession and a feeling of helplessness while getting involved in the legal and judicial processes. Both tendencies are prejudicial to administration of justice through existing structures and processes.

The onus is on the legal profession to prove public perception wrong. It is the duty of the profession to initiate reforms rather than appear to be opposing them whenever proposed from outside. Between lawyers and judges, a movement has to begin for reforms from within if the system is to survive retaining its fundamentals. Indian humanity which gave so much to the Judiciary deserves a better deal from the lawyers and the judges.

(Concluded)

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