Recommendations for the Overhaul of Existing Justice Dispensation Mechanism at the District Level.

Policy Paper

International Relations Scholastic Conclave

March 18, 2018

Recommendations for the overhaul of existing justice dispensation mechanism at the district level -

Author - Samriddha Sen1

Abstract : In a country as diverse, expansive and accommodative as this Republican Union of ours, the responsibility of being the principal caterers of justice rests on the shoulders of judicial institutions that serve its people at the grass-roots district level. While there is an increasingly momentous dialogue regarding contemporary issues of judicial malpractice, pendency of cases and an acute shortage of judicial manpower, which have collectively curbed the eďŹƒciency and validity of such an institution, there is rarely any academic, political or social discourse that intends to address the simultaneous dearth of legal education in the associated districts.

Economic destitution and socio-political disparities (in terms of gender, caste, religious and political aďŹƒliation) have polarized demographics and segregated the ability of the residents of such a district to access law enforcement institutions eectively for protection of civil rights and for seek-

1

B.A. L.L.B First Year, Dept. of Law, University of Calcutta.

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International Relations Scholastic Conclave ing remedies for any violations suffered. Socio-political partisanship which further entrenches conflict and volatility in such a district, serves only to deteriorate the existing condition. This policy draft intends to address such an issue with an unconventional modification of the existing judicial superintendence framework. This policy draft additionally refers to certain plausible hypotheticals to stress upon the actual functioning of the policy proposed.

Objective -

The primary focus and objective of this policy draft is to propose a procedural remedy to the existing lapses of legal awareness among the residents of districts and judicial services rendered by district level institutions, which lie beyond the purview of local panchayats. It additionally produces effort to negate any rhetorics of “judicial overreach” or any apparent violations of constitutional provisions, with appropriate citations of landmark cases and relevant constitutional directives.

Contents 1. Proposed Policy in comparative context of existing district-specific shortcomings.

2. Legal and procedural basis of such a policy proposition.

3. Theoretical outcome of proposed policy implementation.

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International Relations Scholastic Conclave 1.

Proposed Policy in comparative context of existing district-specific shortcomings -

1. Contemporary challenges faced by judicial institutions operating at the district level :

The practical realizations of a universal access to justice is one of the most “laudable objectives”2 of the Constitution which has been enshrined as an integral component of its Directive Principles of State Policy. However such principles face critical social, political, logistical and economic obstacles in the effort to equitably realize it. Ensuring equal access to justice, a constitutional mandate not just in terms of a fundamental right under Part Three, but additionally a good governance directive under Part Four of the Constitution, is fraught with multiple constraints - financial, spatial, qualitative and time.3 A Constitutional Bench of the Supreme Court in Transfer Petition (C) no. 1343 of 2008, 4 identi fied four aspects that constitute the essence of access to justice.

The four aspects are:

1. The State must provide an effective adjudicatory mechanism;

2

Hon. ex-CJI T.S. Thakur, Subordinate Courts of India: A Report On Access to Justice 2016.

3

Anita Kushwawa v. Pushap Sudan, dated 19.07.2016

4

Supra.

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International Relations Scholastic Conclave 2. The mechanism so provided must be reasonable accessible in terms of distance;

3. The process of adjudication must be speedy; and

4. The litigant’s access to the process must be affordable.

As per the directions of Article 39 of the Constitution, remedial measures have been enacted by a substantial majority of the States, through the legislative commissioning of non-profit statesanctioned Legal Aid Services and associative legal assistance schemes engineered to ensure equitable access to legal advisory and litigative services. Although the right to free legal aid or service is an essential fundamental right guaranteed by the Constitution, the effective functioning of such legal service and assistance schemes is inhibited by a multitude of problems ranging from demographic disparities, socially reinforced prejudice and discriminative apathy and antipathy, minimal funding and consequently lack of appropriate resource materials, manpower shortages and lack of consistently operative judicial oversight. Universal equitable access to justice forms the basis of reasonable, fair and just liberty under Article 21 of the Constitution of India, which says “ No person shall be deprived of his life or personal liberty except according to procedure established by law”5. In addition to such,

5

Hussainara Khatoon and Others vs. Home Secretary, State of Bihar, (1980) 1 SCC 81 at 89.

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International Relations Scholastic Conclave although annual Joint Conferences of the Chief Justices of the High Courts and the Chief Ministers of the Respective States have extensively fostered judicial-executive cooperation, the long term sub-administrative benefits of such in terms of ad hoc judicial appointments for struggling districts; funding for renovation, maintenance and construction of existing and new district courthouses and legal aid facilities; and cooperation between the district judiciary and elected panchayats for the enforcement of legal assistance schemes have been inconsequential. The concerns of the superintending judiciary in terms of the workload of the subordinate judiciary, judge strength and resources 6 have been institu tionally addressed by the constitution of a National Court Management System (NCMS) in the year 2012.7 The NCMS since its inception has pursued research and study on judicial arrears, infrastructure and planning 8. However despite the implementation of certain directives taken in the right direction, studies startlingly reveal that on a geographical average, one judge is available at a distance of 157 sq. kilometers9.

6

All India Judges Association v. Union of India & Ors., (1992) 1 SCC 119.

7

OďŹƒce order for the establishment of NCMS. See Appendix BB.

NCMS Policy and Action Plan (Index, Objectives, Background and Rationale etc.). Appendix CC. 8

9

Data as on 01.01. 2015, as per data provided by various High Courts.

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International Relations Scholastic Conclave Pendency of cases at the district level should not just be considered as an indicator of an overburdened judicial machinery but in addition as in indicator of economic prosperity and social and educational awareness. Therefore the effective functioning of judicial institutions at the subordinate level is a need of the hour. Speedy and qualitative disposal of cases at the district level would negate the transfer of such to an already overwhelmed superintendent judiciary by appeals. Over the course of years, both State Governments and the Supreme Court have enacted multiple legal provisions to enhance the functioning of the judiciary. These include the provisioning of Fast Track Courts10; adoption of Resolutions, such as “Number of Judicial Officers in the States to be doubled and Judge-population ratio of 50 per Million needs to be achieved” 11; recommendation of a Rate of Disposal Method 12; the acknowledgment of inadequate infrastructure to sustain and manage stationed and appointed judicial personnel13; propositions of alternative methodologies of addressing mass pendency of cas-

10

Eleventh Finance Commission.

Resolutions adopts at Chief Justices’ Conference: 2016, 2015, 2013 and 2009. In pursuant of the observations made by SC in All India Judges Association & Others. v. Union of India 7 Others, (2002) 4 SCC 247.

11

12

245th Law Commission of India Report (July, 2014).

Subordinate Judiciary works under severe deficiency of 5,018 court rooms. Existing 15,540 Court Halls are insufficient to cater the sanctioned strength of 20,558 Judicial Officers as on 31.12.2015, resulting in the judicial officers having to work under undesirable conditions - Subordinate Courts of India : A report on access to justice 2016.

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International Relations Scholastic Conclave es 14, among others. Despite the ongoing comprehensive administrative dialogue regarding the addressal of the most pressing issues faced by the judicial machinery, no concretely laid-out policy has been formulated or enacted and the existing reformative mandates fail to achieve any conclusive milestone.

2. Procedural policy proposed and its methodology : The most noticeable trend of discussions pertaining to the shortfalls of the contemporary judicial framework, engaged upon by administrators and academicians alike have remained strictly limited to either the technical fallacies of the framework or statutory interpretations of the laws governing the machinery and the latter’s institutional inadequacies in terms of manpower, infrastructure and case disposals. Rarely has any discourse occurred that intended to address the underlying causes of an extensive absence of quality legal education, social awareness and guidance policies and the impact of demographic attributes in the ability to access and dispense justice. Most analysts rule out cases involving the absence of social and legal awareness as responsibilities of irresponsible local administrations that exert undemocratic influence over regional populations by eectively exploiting

The SC Centre for Research and Planning proposed pendency redressal methods of HDI (Human Development Index) and Literacy in addition to the existing Demographic method to ascertain administrative attributes of a district - Subordinate Courts of India : A report on access to justice 2016.

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International Relations Scholastic Conclave the absence of fundamental knowledge of basic rights. Therefore this policy paper presents an unconventional judicial procedural enhancement which is laid down in the following points -

1. This policy paper recommends the appointment of a Judicial Appointee to every district concerned, under the direct supervision, authority and mandate of the High Court of the State under who’s jurisdiction the district entails.

2. The Judicial Appointee would be personally appointed to a specific district by the Chief Justice of the State in active consultation with the Chief Minister and the Law Minister of the State, in addition to a “District Judicial Appointment Committee” chaired by a minimum of 3 and maximum of 5 sitting High Court Judges. In order to ensure that the political independence of the appointee is safeguarded, the Chief Justice will be vested with the discretionary authority to nominate and appoint the Appointee without the explicit consent or assent of any member of the executive, however, with respect to democratic frameworks, the Chief Justice will be obliged to inform the Chief and Law Minsters of the State, by official circular, of any appointment made. The balancing mechanism to such a discretionary authority

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International Relations Scholastic Conclave wielded by the Chief Justice is countered by the provisioning of a vote-casting system within the functioning of the ‘District Judicial Appointment Committee�, where the nominee of the Chief Justice is only assented and subsequently appointed when the Appointee has secured absolute majority of the votes casted by the panelist Justices (2/3 in case of a 3 membered committee and 3/5 in case of a 5 membered committee; Chief Justice does not have the power to vote neither in favor nor in opposition to the nomination filed). The Justices, who are members of the aforementioned committee will be expected to conduct thorough analyses and investigations of the psychological profile and judicial career of the Appointee, to vet his/her credibility as an impartial authority figure of the law, before casting their votes in course of the appointment process.

3. The criteria for an individual to acquire a nomination as a Judicial District Appointee includes but not limited to an illustrious public or private litigative service for a continuous period of no less than 5 years before appointment and/or holding oďŹƒce as a district judge or magistrate of any district of a tenure no less than 7 years before appointment. The Chief Justice decides and chooses viable candidates as per

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International Relations Scholastic Conclave existing district vacancies and conducts an informal consultation session with the District Appointment Committee prior to filing the nomination.

4. The primary duties and responsibilities of the Appointee would be to oversee the transmission of legal knowledge and awareness among the residents of the district, maintaining oversight over local Legal Aid Services rendered by district authorities, actively assisting the local District Magistrate, District Judges and Judicial Officers in performance of their routine duties and act as a liaison between the High Court and the District Judicial Institutions. However, it has to be particularly noted that such Judicial Appointee would not enjoy a position of superintendence over the District Magistrate or any District Judge for that matter. The District Magistrate remains the primary figurehead of the district administration.

5.

Inclusive of the main duties discharged by the Appointee, would be the monthly submission of a “District Review Report” to any one of the High Court “District Resolution Committees” to which the Appointee will report to. Since the High Court enjoys the absolute authority to exercise ju-

Policy Paper

International Relations Scholastic Conclave risdiction over the State, it has the discretionary freedom to establish one or multiple “District Resolution Committees” either on a zonal (North, East, West, South etc.) or district basis in accordance with the geographical and/or demographical attributes of the concerning State and for administrative convenience. The District Resolution Committee would be chaired by 3 sitting High Court Justices in addition to the District’s Magistrate, a District Judge, a highranking Panchayat Official, the District Superintendent of Police and the Appointee for the district. Each of such Committees would annually submit their “Annual District Judicial Evaluation Reports for the State” to the Chief Justice for press release, publication and open access under Government portal websites. The “District Review Reports” drafted by the Appointee specifically highlight the current shortcomings pertaining to infrastructure and functioning of the District Judiciary, local law enforcement institutions and associated social awareness campaigns and reports these issues to the Committee for discussion. In accordance with the existing lapses in judicial administration of the district, the sitting Justices of the Committee instruct the Magistrate to resolve the situation, overcome any institutional hurdles in active coordination with the local panchayat and police.

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International Relations Scholastic Conclave Since any instructions relayed upon by the Committee is not strictly limited by scope, as advisory recommendations, but also legally binding in nature by virtue of administrative superintendence, the progress of the situation reported, shall be monitored by the Appointee and be subsequently reported to the Committee in the following month’s “District Review Report” submissions.

6. The Judicial Appointee would be circumstantially vested with the authority to investigate into and supervise upon local investigations initiated by the district administration.

7. The Judicial Appointee, at his discretion can initiate districtspecific enquiries and investigations involving legal disputes of local nature. However, if the subject of the enquiry and investigation involves matters of utmost importance or relevance having far reaching consequences on the institutions of the district, or exceeding the jurisdiction of the Appointee, the latter has to report the proceedings and details of such to the High Court pending transfer of responsibility or restoration of supervising authority.

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International Relations Scholastic Conclave 8. An additional component of the primary duties performed

by Judicial Appointees would be the convening of weekly “Legal Awareness Drives� in the stationed districts. The Judicial Appointee with the assistive cooperation of the District Magistrate and the Panchayat would conduct a districtfocused awareness campaign over the concluding days of the week (Friday-Saturday) at the sub-district (tehsil) and rural levels. The campaign would involve local residents engaging in informative dialogue with the Judicial Magistrate and the Appointee, with the latter directly advising distraught members of the local community as per their respective or common predicaments. The responsibility of making the local population aware of their fundamental inalienable social, economic and political rights rests proportionally higher upon the Appointee than other members of the district administration. Failure to cooperate with, and assist the Appointee in the discharge of his/her duties by any member of the local administration would tantamount to a violation of administrative protocol and would be consequently reprimanded.

9.

In order to further reinforce Judicial oversight over the Appointee with respect to accountability and transparency be-

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International Relations Scholastic Conclave tween the High Court and District Courts, quarterly inspections would be conducted by sitting High Court Justices, deputed to districts by the Chief Justice, to oversee and monitor the activities of the Appointee and performance reports of the District Administration.

2. Legal and procedural basis of the proposed policy :

This section of the policy paper clarifies certain preconceptions one may arrive at while analyzing the proposed policy. Certain arguments in favor of an overreaching superintendent judiciary mounting unwarranted interventions at the district level in direct transgression of federal principles of the Constitution, are negated through certain constitutional and judicial observations. The legal arguments validating the aforementioned policy are presented in the following points -

1. Power of Superintendence Over All Courts by the High Court15:

1. “Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

15

Article 227 of the Indian Constitution

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International Relations Scholastic Conclave 2. Without prejudice to the generality of the foregoing provisions, the High Court may -

1. Call for returns from such Courts;

2. Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

3. Prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.”

2. “Article 235 of the Constitution of India not only vests total and absolute control over the subordinate courts in the High Courts, but also enjoins a constitutional duty upon them to keep a constant vigil on the day to day functioning of these courts. There is no gainsaying that while it is imperative for the High Court to protect honest and upright judicial officers against motivated and concocted allegations, it is equally necessary for the High Court not to ignore or condone any dishonest deed on the part of any Judicial Officer. It is the Constitutional mandate that every High Court must ensure that the subordinate judiciary functions within its domain and administers justice according to law, uninfluenced by any extraneous considerations. The members of the subordinate judiciary are not only under the control but also under the case and custody of the High Court. Undoubtedly all the Judges of

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International Relations Scholastic Conclave the High Court, collectively and individually, share that responsibility.”16

3. “Superintendence power of High Court is both administrative and judicial. But, such power is to be exercised sparingly and only in appropriate cases to keep the subordinate courts within the bounds of their authority. Powers of superintendence cannot be exercised to influence subordinate judiciary to pass any order/ judgement in a particular matter.”17

4. As observed from Article 235 of the Indian Constitution, the Constitution has vested the control of the subordinate judiciary in the superintending High Court as a whole and not within its Chief Justice alone. Therefore it is the responsibility of every serving High Court Justice to take adequate interest and responsibility for the proper functioning of the institutions placed under its administrative control.

5. “Under Article 227, HC Has jurisdiction over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. It would be anomalous to suggest that a Tribunal over which HC has superintendence can ignore the law declared by 16

Registrar General, Patna High Court v. Pandey Gajendra Prasad & Ors. (2012) 6 SCC 357.

17

TGN Kumar v. State of Kerala, AIR 2011 SC 708.

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International Relations Scholastic Conclave that High Court. Though there is no specific provision just like in the case of the Supreme Court making the law law declared by the High Courts binding on subordinate courts, it is implied in the power of supervision. We therefore, hold that the law declared by the Highest Court in the State is binding on the authorities or Tribunals under its superintendence.”18

6. “To adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary, as, in such matters, the concerned Judge has no remedy in law to vindicate his position.”19

7. Control Over Subordinate Courts20 : “The control over District Courts and Courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court.”

8. “The strength of power is not displayed solely in cracking a whip on errors, mistakes or failures; the power should be so wielded as

East India Commercial Company Ltd., Calcutta v. Collector of Customs, Calcutta, AIR 1962 SC 1893.

18

19

Ishwari Prasad Misra v. Mohd. Isa, (1963) 3 SCR 722.

20

Article 235 of the Indian Constitution

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International Relations Scholastic Conclave to have propensity to prevent and to ensure exclusion of repetition, if committed, once innocently or unwittingly.”21

3. Theoretical outcome of such proposed policy implementation :

The next objective of the policy draft is to test its practical functioning in context of specific probable circumstances. The theoretical outcome of implementing the proposed policy with respect to such circumstances is presented in the following points -

1. Circumstance 1 - In the event of an outbreak of communal violence at the district concerned, the High Court through its appointee may not only emphatically stress upon the reinstatement of law and order directly to the afflicted district’s administration and command effective enforcement of Section 144 of the IPC, but in addition through the on-site assessments provided by the Appointee, have a comprehensive understanding of the situation and can accordingly instruct the State to deploy requisite law enforcement personnel. Under the existing framework, as it is evident that most State-level executives downplay the threats posed by mass rioting, by restricting me-

21

’K’ A Judicial Officer (In Re), 2001 3 SCC 54.

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International Relations Scholastic Conclave dia access and diverting reactionary law enforcement, High Courts have no credible source of information to conduct an appropriate assessment of the situation and therefore limiting their ability to instruct the State to take necessary action.

2. Circumstance 2 - In the plausible event of an administrative insubordination by either any member of the District Judiciary, Administration or even the Appointee, such an event is contained through a system of check and balance established through the membership of the District Magistrate, District Superintendent of Police, a high ranking Panchayat official and the Appointee in the High Court “District Resolution Committee”. In supposition of such an event, the presiding High Court Judges, under the guidance of the Chief Justice and the Law Minister, would conduct an independent internal investigation into the matter, while temporarily placing the Appointee for the district under administrative leave. Depending on the outcome and the findings of such an investigation, the individuals involved and found guilty would be terminated from their position, prosecuted under charges of the offense (if any) committed or transferred, subjective upon the veracity of the incident.

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International Relations Scholastic Conclave 3. Circumstance 3 - Hypothetically if by mail or by personal conversation, a distressed local citizen expresses pertinent or grave legal concerns faced by that particular individual or a demographic community as a whole, addressing to the Appointee or the Magistrate, with the view to obtain legal assistance or guideline, it is within the power of the Appointee to facilitate or personally act as a public prosecutor, representing the distressed individual/s in court, only after the ascertaining the legitimacy of the facts of the case, and it is certain beyond any reasonable doubt that the case involves a gross unwarranted violation of fundamental right/s of the individual/s, the Appointee is representing in court, or if the subject of the case involves an arbitrarily deliberate violation of public policy, either by an institution or by an authority figure.

1. Under the circumstances, if a judicially consequential case is presented before the District Judiciary, upon prior authorization of the High Court, the Judicial Appointee would be empowered with the capacity to make evidential depositions before the court pertaining to the facts and the matter of the case presented, in addition to advising the District Judge on the case, should the latter seek it.

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International Relations Scholastic Conclave Conclusion : The key to eliminating social, political and economic justice in India, is acknowledging and addressing these requirements categorically at the grass-roots level. This policy has been developed and formulated with the sole intention of addressing and alleviating a multitude of undiscussed problems plaguing sub-administrative judicial dispensation. The lack of realization of justice for a majority of the rural population and consequently, the greater part of the country, not only deprives people of their inalienable rights, this Republic was founded upon, but in addition fosters an ever existent precedent of judicial fallibility, which leads to the eruption of violence in forms of radicalism, insurgencies, public rioting and institutionalized instability through unaccountability of corruptive practices. One of the many reasons, the recommendation of a centralized judicial accountability and oversight mechanism under the direct supervision of the Supreme Court was discouraged, is because under the Constitution, Law and Order is a State subject, therefore primary responsibility is vested within the institutions of the State. This policy has been proposed with the sincerest belief that such an informal policy would assist legislators and policy makers to take definitive steps in developing and enacting concrete remedial measures to address the contemporary challenges facing the judiciary.

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