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Shailesh Gandhi: Is time-bound justice possible?

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Sajib Nandi

By Shailesh Gandhi in Moneylife.in on 18/06/2015

Is time-bound justice possible? - Moneylife

 

 

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 injustice. 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’ on the Supreme Court website for 20 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 (see file below). 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 3 months for the lower courts and the Supreme Court (see file below). This would have been about 7 months in the High Court.

 

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 double 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 double the average time is accepted, the maximum time at the three Courts would be 6 months, 14 months and 6 months. If the number of sanctioned posts 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 double 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 of 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.

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MANOJ B. PATEL

Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India—the world’s largest democracy, an ally of the United States, and a country with a judiciary that draws upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years—and sometimes decades—awaiting their day in court are not uncommon. Many Indian prisons are between 100% and 200% over capacity, where conditions are squalid and the weaker inmates face serious physical harm.

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Prasad GLN

We are outsiders, I do not think that they are not knowing the procedure how to dispose the cases much earlier. But, they are not willing. However, in those cases which they are willing, they are disposing the cases without seeing the merits, in their own interest on those cases.

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MANOJ B. PATEL

In our country, all the people who are detained on the category of under-trails should be released if no case can be brought against them by the state within six months. All the documentation, verification and pre-process should be outsourced and automated. Political parties should commit to a number of cases which will be dealt with or closed within a term. In the next election cycle the claims of better governance should be measured against the performance against the cases closed. Indians can learn a lesson or two from American 'Congressional budget office' (CBO), which is bipartisan and hence non-controversial in nature and both republican and democrats respect the reports of the CBO. Though the CBO comments on economic matters, India can use similar mechanism to setup a bipartisan, statutory office comprising of legal experts from all spectrums of public life to quantify, oversee and improve efficiency in legal systems in India.

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Sajib Nandi
In our country, all the people who are detained on the category of under-trails should be released if no case can be brought against them by the state within six months. All the documentation, verification and pre-process should be outsourced and automated. Political parties should commit to a number of cases which will be dealt with or closed within a term. In the next election cycle the claims of better governance should be measured against the performance against the cases closed. Indians can learn a lesson or two from American 'Congressional budget office' (CBO), which is bipartisan and hence non-controversial in nature and both republican and democrats respect the reports of the CBO. Though the CBO comments on economic matters, India can use similar mechanism to setup a bipartisan, statutory office comprising of legal experts from all spectrums of public life to quantify, oversee and improve efficiency in legal systems in India.

 

1) Good/ better governance does not exclusively include "performance against the cases closed". Never heard of an Indian citizen who voted for this consideration alone.

 

2) For the benefit of members, kindly elaborate on the idea of "bipartisan, statutory office comprising of legal experts from all spectrums of public life to quantify, oversee and improve efficiency in legal systems in India".

 

Our constitution mandates an Independent Judiciary which cannot be altered by whims and fancies of the political parties. Extrajudicial entities cannot quantify and oversee the legal system in India.

 

3) Bipartisan | Define Bipartisan at Dictionary.com

 

bipartisan

adjective

1. representing, characterized by, or including members from two parties or factions

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MANOJ B. PATEL
Good/ better governance does not exclusively include "performance against the cases closed".

This is a part of good governance.

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