Access to the justice Problems in Indian Judicial System and there solution
In the olden days Indian Judicial system was basedon the Principle of general Law. Every village of Indiawas divided in republic. Head of the republic wasknown as president of republic. Andhis functionwas to look after for the safety of republic andfor this purpose collecting revenue from the publicand providing justice to them. Later on thisrepublic was organized in groups and was calledRaja, Maharaja, Zamindar (Barron and Kings).
Their function was also to collect revenue from public ,to protect them from theives, Thugs,and tprovidejusticetothem.
AccordingtoIndianDharmashastra , decision of King was his religiousand moral duty. Pandit and Maulvi used to assisthim in the work of rendering justice. They awarethe King about the personal law of society. Thisjudicial system continued till the foreign attackin India. Later during the rule of foreignersretributive judicial system got started.
In whichMughals criminal penal system was continued forvery long time in India. There Judicial system washard and rigorous.
InwhichKisa(TitforTat),Diya(Indemnity),Had(CertainPunishment),Tajir(Discretionary)such
kind of punishment was given. During that time inthe matter of civil law, Hindu law based on Shastrafor Hindus, Shariyat Muslim personal law, based onQuran was implemented on muslim. But in penalmatter there was no discrimination.
There wascourts Kazi from Kazi only justice was provided .Raja-Maharaja fulfills the Justice by hanging thebell of justice outside their house. Muslim penal
law was enforced till 1858 but after the coming of
English in 1600 certain changes were made in that
law. The new laws made by English had various
faults. Kazi always have one's ray. It was human
treatment for women. Hence, after the failure
offirst revolution of 1858 the whole administration
of India camein the hands of King of England,
which lead the beginning of knew era for Judicial System of India. And in that time English kept the
foundation of present judicial system of India. In
this time several acts were made by English. Out of
which some acts are still in existence. By the time
no changes have been made with those acts.
FirsttimeEnglish did codification of law based on
evidence and there upon long procedure of law was
made. In penal matters one common penal law, Indian
penal code1860 was made by English which wasenforced for the people of India which is still in
existence. But in civil matters that old personal
law of judicial system was applicable. In 1908
Civil procedure was formed. In English judicial
system Munsif Magistrate used to deliver justice.
There was provision of appeal against their order
and judgment. The basic objective of English
judicial system was to collect revenue from there
people, to protect the state and trade. Thus, they
couldn't give proper attention towards the personal
law of India. Hence couldn't establishjudicial
system according to Indian culture. For keeping the
functions of administration in their hands,they
strengthened the power of police in judicial system
so that with the power and harassment of police
they could establish their empire.
It has been 60years of our freedom. In our constitution we guarantee to every person for social, economic and
political justice,liberty of thought and expression, equality of status and of opportunity But still we are unable to provide justice to our citizens. They are still fighting for social,economic and political justice before leaders and
government institutions. Even after getting the
right to information they are still struggling for
freedom of thought and expression. There is wall of
status and class differentiation at every level of
our society. There is a big nexus between rich and
poor.
The country is suffering from inequality,discrimination, and terrorism. Indian Judiciary isoften associated with inefficiency, corruption andineffectiveness. The article present a new approachby studying the judicial system as an operationprocess.Thestudydepictshowoperation
management can find application away from its
traditional manufacturing parade and how it can be
used to build a model that very closely simulates
real life flow of cases through the judiciary. Such
an approach can provide quantifiable solution with
a focus areas were they can be most effected.
There search generatedaseriesimplementable
suggestion that were tested using model for their
impact on the judiciary .Much has been talked about the delay in rendering justice in the Indian judiciary. As of
2007, there are over 30 millions cases pending in
the courts of India. Such is the extent of pendency
that high court of Delhi could take up to 466 years
to clear out its enormous backlog. In India on an
average it takes about 2.9 years to clear a civil
case, with a standard deviation of 2.5 years.
Pendency of cases not only indicated the in
efficiency of the judiciary, but also lead to huge
economic cost for the nation.
The delay in justicebeingserveddefeatsthepurposeof
theestablishmentof remedial system, causing the
citizen to lose faith in the system.A survey of existing literature about courtcongestion in India reveals that the problem isrecognized, but the approach to the issue has beendriven by macro-level data. The suggestions in
these studies include increasing number of judges,
increasing courtrooms, reducing frivolous cases,
inclusion of IT, etc. but the solutions are rather
qualitative and their impact has not been analyzed.
The movement of a case through the court can be
viewed as an operations process similar to pizza
making, that involves a series of processes at the
end of which an output (judgment) is delivered.
However, judicial processes are different in that
they may involve different processes for different
cases, a high variability at each process step and
may involve repetition of processes - all depending
on the complexity of the case. Hence, one can be
assured of a pizza being delivered in 30 minutes
but cannot be sure if justice would be delivered to
him even in 30 years!
To build a predictive simulation model whileincorporating this complexity, we limited the scope
to civil cases in lower courts, as they are more
process driven and form a bulk of the cases (over
90% of cases are filed in lower courts). Reasonable
assumptions, like steady state and judge being the
bottleneck in judicial systemwere made. Quality
of judgment was assumed constant, which would
create an inherent variability in the process and
hence it is assumed that no compromise on quality
would be entertained.The management of the court system should bemodernized by taking advantage of new technology.
While computers have invaded all fields of activity
in the country and modern technological advances
have radically altered the working in offices, the
judiciary has remained outside the mainstream of
this technological advancement. It is, therefore,
necessary that every High Court must have a
computerized system for keeping a catalogue of
pending cases, a computerized library index of its
decisions to avoid conflicting decisions, and
adequate number of word processors, photo-copying
machines and electronic typewriters, a computerized
micro-filming centre for maintenance of record and
a telex system connecting the Supreme Court with
otherCourts.
Thisisessentialforinter-communication
andinteractionamongdifferentcourts. Judges can help by strictly adhering to thehours of work, by exercising the caution andrestraint in allowing adjournments which are thebane of our present-day court proceedings, andrestricting oral arguments to the minimum by
writing clear an concise judgments and delivering
them promptly within a short periods after the
conclusion of the hearing. After the E-court
revolution and with the investment of crore of
rupeesmostofthecourtsarelancedwithfacilities like
computer, laptop, internet, videoconferencing and
has become hightech court.
The business of the courts should be so arranged asto avoid the situation of old cases getting olderand of new cases receiving priority. Lack of properlisting and proper notice of new cases and thegiven priority to old cases is a factor whichcontributes to the accumulation of arrears and tomaladministration of justices. Matters involving
common questions of law must be grouped and posted
together for hearing before the same Bench not only
to save the precious time of court but to avoid
conflicting decisions and ensure a uniformity in
approach leading to certainly and continuity in the
progressive development of law.
Members of the legal professions can and shouldalso help. They must discipline themselves in orderto be effective ministers of justice. The argumentsshould be prudent preparation before presentationin the court either in pleadings or the advocacy.There is a tendency in our country to rust to thecourt at the slightest provocation. If lawyerscould adopt a positive approach and strive to
arrive at reasonable out of court settlements, the
time and expense of the litigants would be saved to
a great extent and the inflow of cases into courts
would be reduced, thereby facilitating expeditious
disposal of pending cases.
There is something in the very nature of the officeof a judge and the function he performs thatdemands that he should be a person of highintegrity,whatevermaybethemoralnorms
prevailing in other walks of life. The judiciary
has neither the power of the purse not that of the
sword. Its most valuable asset in the confidence it
inspires and the respect it evokes for this
capacity to redress the wrongs of those knocking at
the door of the Courts and to keep the scales even
in any dispute between the rich and the poor, the
mighty and the weak, the State and the Citizens,
without fear or favor. This can only be ensured if
the judiciary is manned by persons who cannot be
lured by pecuniary or other temptations or by
rewards or undue power and authority. Once the
image of the judiciary is tarnished because of the
doing of some of its members and its credibility
goes down, the loss is not merely that of the
judiciary, the nation itself is deprived of the
most stabilizing element in the even flow of its
life.
To reforms the judical system it is necessary to
make different laws for the social, economic and
political evils like terrorism, cyber crime, cheque
bounce, match fixing, sedition, criminal crime and
political scams and also different laws for body,
property, state, public servant, public health, religion, marriage, service contract, women and
child, transport,distributive system, environment,
etc. in place of Indian penal code 1860. Today
different laws are applied for the same subject. So
it is necessary to include these different laws
made from the same subject under one regulation.
Special courts and judges should be appointed for
different offence. Period of limitation should be
fixed for the disposal of cases.But we must remember that the judicial system andlegal machinery do not work in isolation fromsociety. They are integral parts of the entiresocial and political system.
Their working depends
on the co-operation of other elements. We must have
a non-political, efficient, dedicated honest and
upright judiciary which must have a non-political,
efficient, dedicated, honest and upright judiciary
which must be aware of its responsibilities and
remain fearless. Only such persons should be
appointed as Judges, who enjoy the confidence and
trust of the nation. They must be allowed to
function in such a manner that the country is
assured of fair and equal justice along with the
achievement of political, social and economic
justice.
If judges with special acquaintance or competence
or those who have specialized in certain branches
of law are allotted cases under that particular
branch of law, the time taken by judges who are not
familiar with the branch, specially of it is a
specialized branch. Benches formed of competent
judges should be allowed to function for a
reasonablelengthoftimeandthejudgesconstituting the Bench should know well in advancewhen the Bench is to break, so that there may be nopart-heard cases left by the Bench after is itdismantled. This however requires discipline on thepart of judges themselves. They must sit in time.They must not absent themselves from the Court
simply because there are certain rights to have
some leave of absence. This is a matter on which
theinternaldisciplineofjudgesisveryessential.
They must realize that they hold a highand dignified position in society.Withtimeamountoffine,indemnity
andcompensation should be increased. You don't get
alcohol at ten rupees but according to section 510
of Indian penal code1860 causing annoyance in
public in state of intoxication there is provision
of fine of 10 rupees. Which is not appropriate with
time.
There is a very less provision of fine for
careless and negligent driving on public way. If
the provision for amount of fine is raised and
indemnity will be fixed then the quantity for claim
of compensation under Moter vehicle Act
can becontrolled.
Under Negotiable Instrument Act if the
person who issues cheque give the information of
issuing of the cheque to the bank then in this way
the flood of cases related with blank cheque,
forged cheque, back date cheque can be controlled.
It is necessary to amend in this law made in 1881.
In India sedition related various laws likePrevention of Seductive AssemblyAct of 1911 wasmade which is still in existence. Which was madefor the protection of English administration. Nowthey keeps no importance and they should berepealed.In the definition of sedition, terrorism,detection, criminal activities against the sate,act done for breaking the unity and integrity of
nation and match fixing etc should be included.
There are still many laws existing, which representour country as slave and which is not necessaryin present.In Bhopal Gas Tragedy thousands of people died butunfortunately we could not punish the wrong doers.This is a result of not reforming the judicial
system with time.
We can say that Indian judicialsystem is completely police penal system or policeharassment procedure. It is necessarytochangeinpoliceprocedure,the processinfilingFIR,methodsofinquiryinvestigation,search,
arrest,statement, bail etc. We all are very much aware of
it.
We are living in such a judicial system in
which the top investigative agency of our country
are working under political pressure. Hence
, weneed such a liberal investigative agency which will
work only under judicial system and not under the
political pressure
Article 39A of the Constitution of India providesfor equal justice and free legal aidThe Stateshall secure that the operation of the legal systempromotes justice, on a basis of equal opportunity,and shall, in particular, provide free legal aid,by suitable legislation or schemes or in any otherway, to ensure that opportunities for securing
justice are not denied to any citizen by reason of
economic or other disabilities. This Article also
emphasisesthatfreelegalserviceisaninalienable element of 'reasonable, fair and just'procedure for without it a person suffering fromeconomic or other disabilities would be deprived ofthe opportunity for securing justice.
The right to
free legal services is, therefore, clearly an
essential ingredient of 'reasonable, fair and just,
procedure for a person accused of an offence and it
must be held implicit in the guarantee of Article
21 of the Constitution. This is a constitutional
right of every accused person who is unable to
engage a lawyer and secure legal services on
account of reasons such as poverty, indigence or
incommunication situation and the State is under a
mandate to provide a lawyer to an accused person if
the circumstances of the case and the needs of
justice so required, provided of course the accused
person does not object to the provision of such
lawyer.
On the other hand, in the civil side, Order
XXXIII. R.18 of the Code of Civil Procedure 1908
provided that the state and central governments may
make supplementary provisions at it thinks fit for
providing free legal services to those who have
been permitted to sue as an indigent person. The
Legal Services Authorities Act, 1987 made drastic
changes in the field of legal services. It is an
Act to constitute legal services authorities to
provide free and competent legal services to the
weaker sections of the society to ensure that
opportunities for securing justice are not denied
to any citizen by reason of economic or other
disabilities, and to organize Lok Adalats to secure
that the operation of the legal system promotes
justice on a basis of equal opportunity.
Once an impression prevails that justice is a
purchasable commodity and those who administer it
can be tempted, the common man would be left with
no forum to look for redress of the grievances.
There is nothing which rankles in the human so such
as a brooding sense of injustice. We must remember
that in the final analysis the people are the
judges and that every trail is a trail of our
judiciary system also. Its strength and weakness,
itssuccessandfailure,itsutilityand
credibility, the respect would depend ultimately
upon the way it satisfies the hopes and aspirations
of the people in quest of justice.
The justice is costly in our judicial system. Hence
it is not easily accessable. Whereas justice should
reach the needy. The whole judicial system should
be free and impartial. For justice going to high
court and supreme court should not be like going to
pilgrimage for indigent.
The entire life the
applicant could not get justice due to poverty.
Even couldn't touch the door of the court. In order
to provide them free legal aid, a legal aid
authority is created in district level. But as its
function is limited only till district so the real
needy person are not able to receive the services
of free legal aid. Free legal aid is given to both
accused and the applicant. But the person who is
pleading for justice but not getting it due to
poverty these authorities does not even look at
them. Whereas in reality they have the right of
getting the free legal aid.
In our country the fees of the famous and trainedlawyers are equal to the fees of actors and
cricketers, that's why every person couldn't get
the lawyer of his choice. In order to make the
judicial system cheap, easily accessable, quick and
transparent it should be made free. It is essential
that government should give fees to lawyers
involved in civil and penal cases filed in the
court, and also should bear the expenses of the
court.
Members of the legal professions can and shouldalso help. They must discipline themselves in orderto be effective ministers of justice. The arguments
should be prudent preparation before presentation
in the court either in pleadings or the advocacy.
There is a tendency in our country to rust to the
court at the slightest provocation. If lawyers
could adopt a positive approach and strive to
arrive at reasonable out of court settlements, the
time and expense of the litigants would be saved to
a great extent and the inflow of cases into courts
would be reduced, thereby facilitating expeditious
disposal of pending cases.
To-day a large number of litigation in superior
courts is concerned with interim relief's and
interim orders. If we go by the number of interim
orders subsisting for years together without the
matter coming up for final hearing due to dilatory
tactics, one gets the impression that the majority
in the profession have come to regard interim
relief as final reliefs. The number of frivolous
and vexatious petitions being filed is increasing
by leaps and bounds. An overwhelming majority of
special leave petition filed in the Supreme Court
are dismissed and yet there are no sign of decrease
in filing such petitions. Frequently adjournments
are sough upsetting the schedule of work. The
responsibility to comply with the instructions of
delays. Lawyers frequently indulge in lengthy
arguments before the court. There is need to reduce
the quantum of oral arguments prepared with great
caution and precision. Judicial time can be saved
to a great extent and the settlement of cases
expedited.
In our judicial system our government fights oncriminalissuesfromthepublic.
InIndiagovernment lawyer representformore than
hundreds of cases from government. We are well
aware from their ability and capacity, In this way
government could not provide justice to parties by
forciblygiving government lawyer. It is
essential that the deceased should be allowed to
appoint a lawyer of choice and through him should
complete the whole pleading procedure. The fees of
the lawyer should be given by government. In this
relation section 24 and section 301 of Criminal
Procedure Code should be amended.
Other than this ,
after the registration of the complaint and after
filing of the FIR the accused should be allowed to
be heard and to defend himself on the concerned
matter according to the law. According to section
207 0f Criminal Procedure Codethe applicant
should be given a copy of charge sheet.
Similarly
after the registration of the complaint there is
provision of giving a copy of complaint only.
Whereas other than complaint letter under section
200 and 202 of Criminal Procedure Code
theprescribedstatementanddocumentrelatedto
complaint should be sent by summons before court.
Hence
a copy of charge sheet should be given to
the accused while presenting the charge sheet in
the court so that the accused should come to know
about the matters involved in the case.
In our country a criminal
matter goes for years.Applicant doesn't even come to know aboutwhatjudicial proceeding are going on against theaccused involved in the case. He is just presented
as a government witness. He goes to home after that
what happened in the matter, he is not to informed.
Hence a copy of charge sheet should be given to the
accused while presenting the charge sheet in the
court so that the accused should come to know about
the matters involved in the case. As he has been
given the facility of the appeal so after the
judgment he should be informed about the judgment,
So that he can appeal accordingly.
We present the
document related to accused, witness, bail along
with charge sheet but no document relating to their
identification. Consequently a lot of time is spent
on searching them. Hence it is necessary that there
photographs along with their statement, address,
profession, mobile no. should be prescribed.
Law is the bunch of rule . The courtsshould be
so arranged as to avoid the situation of old cases
getting older and of new cases receiving priority.
Lack of proper
listing and proper notice of newcases and the given priority to old cases is afactor which contributes to the accumulation ofarrears and to maladministration of justices.Matters involving common questions of law must begrouped and posted together for hearing before thesame Bench not only to save the precious time of
court but to avoid conflicting decisions and ensure
a uniformity in approach leading to certainly and
continuity in the progressive development of law.
Thus it is essential that every court should follow
the orders and judgment decided by the supreme
court and follow it as law according to Article 141
of Constitution of India.
The Constitution of India providesforaverydelicateprocessofconsultationbetweenthe
executive and the judiciary in the matter of
appointment of judges through Supreme Court and the
High Courts. A qualitative improvement in judicial
appointments can only be achieved of all theconstitutionalfunctionariesinvolvedinthe
consultative process strive to attract and find the
best talent of character and dedication. Extraneous
consideration such as caste, community, religion,
and politics must not prejudice the selection of
judges.
The problem of delay and the accumulation of huge
arrears of cases both in the lower-courts, the High
Courts, and the Supreme Court have assumed serious
dimensions and invited a lot of criticism of the
entire legal system. The causes of this delay are
many. There are lacunas within the law itself of
which clever lawyers take undue advantage and seek
adjournments on personal grounds, for the benefit
of their clients. Justice delayed is justice
denied. The flaws in the legal system give rise to
unlimited frivolous suits, the purpose being not to
seek redress but to cause harassment to the
opponent. This is one of the most important causes
of the accumulation of arrears. For the reformation
of the judicial procedure in the Indian judicial
system,
judicialtrainingorganizationandinvestigation center are started. Various trainingprogrames and refreshing courses are organized bythese institutions. Than too judicial officers areseen unawared from the new laws and procedure.Honesty and integrity of the Judges must be giventoo priority. The judges should not merely be
honest but also seem to be so. Beside being honest,
fearless and independent, they must also be learned
and wise. They must have sound legal knowledge, and
must also know how to apply that legal knowledge to
the cases before them. They must be able to
separate the grain of truth from the chaff of
falsehood. They must be firm and above suspicion so
that they may decide a case fearlessly and give
their judgment without fear or favor. They must
have a conscience so that they may tell themselves
at the end of each day that have done their best
according to the light that is within them.
The judicial system of our country is in the new
era. Time to time new rules regulation , laws,
ordinance, are creating and so old laws are being
amended.The Judiciary interprets laws enacted by the
legislature and dispenses justice according to
those laws. The judiciary must act independently
without fear or favor. The judges must be honest
and men of courage and integrity. However, it must
be remembered that the Indian legal system is a
legacy of our colonial rulers and with the passing
of time many evils have crept into it and it fails
to satisfy the aspiration of the people. Hence
there is urgent need of a complete overhaul of
judicial machinery.
This study is aimed at analyzing the judiciary as
an operations process, using operations management
concepts of process flow and system capacity, with
the objective of coming up with quantifiable and
implementable recommendations which lead to:
1.Reduction in case loads (reducing WIP), and
2.Quickermovementofcases(increasingthroughput) To generate viable recommendations for the judicial
system, we considered a two-pronged approach.
First, there was a need to increase the supply of
capacity. Second, the various methods to reduce the
inputs to the judiciary were explored. These
solutionscanbeanalogoustoreducingthe
inventory by increasing the available capacity of a
machine, and at the same time, reducing the demand
on it. Together, these methods should help rid the
system of the excess pendency and result in a
judiciary with a healthy, time-bound movement of
cases through it.
As indicated above, the pendency at a step is in
direct relation to the time taken by it. Certain
process steps have delays introduced due to
inefficiency caused by bureaucracy and bribery.
Certain other processes are governed by archaic
practices that lead to unnecessary time delays. To
speed up the process and reduce pendency, these
steps in the system could be modernized or even
outsourced. For example, using email to serve
summons or call witnesses will greatly reduce the
time taken at these process steps. Standardizing
the process of filing and making it computerized
should also improve court records and speed up the
system.
The process by which a case continues through the
system gave rise to an observation cases take much
more time in the hearing stage rather than the pre-
hearing or pre-admission stages. In addition, the
judge time spent is almost negligible in the pre-
admission stage, but very great in the hearing
stage. Hence, if the number of cases passing
through the admission process can be reduced, the
load on the system (both caseload and judge load)
will be greatly reduced.
By moving more cases out of the judicial process
into mediation or arbitration, the judiciary can
remove frivolous, simple or repetitive cases from
the system. If the number of cases passing though
the admission stage could decrease by 5%, the total
time saved for the judge per day would be 6%.
However, if this decrease in number of cases was
achieved at the determination of issues stage, only
a 4% reduction would be achieved. Hence a practice
of move out cases as early as possible should be
followed.
The new approach to view Indian Judiciary as an
operationsprocessrevealedthaOperations
Management can add significant value in areas far
away from manufacturing. Operational modeling of
court processes can provide valuable insights,
throw light on the bottlenecks, and suggest areas
of improvement.Such a study of the Indian Judiciary suggests thatthe system is not beyond redemption" and there ishope for improvement. Operationally, there are two
major problems the pendency of cases and the
overloading of judges. An analytical model can be
built to generate simulations which show where the
problem lies and how the problems can be resolved.
Suggestions for improvement can be tested for their
impact on such models. This study can be further
extended tocriminalcases,highercourts,
different geographies and other resources like
administrative staff and courtrooms.
In the olden days Indian Judicial system was basedon the Principle of general Law. Every village of Indiawas divided in republic. Head of the republic wasknown as president of republic. Andhis functionwas to look after for the safety of republic andfor this purpose collecting revenue from the publicand providing justice to them. Later on thisrepublic was organized in groups and was calledRaja, Maharaja, Zamindar (Barron and Kings).
Their function was also to collect revenue from public ,to protect them from theives, Thugs,and tprovidejusticetothem.
AccordingtoIndianDharmashastra , decision of King was his religiousand moral duty. Pandit and Maulvi used to assisthim in the work of rendering justice. They awarethe King about the personal law of society. Thisjudicial system continued till the foreign attackin India. Later during the rule of foreignersretributive judicial system got started.
In whichMughals criminal penal system was continued forvery long time in India. There Judicial system washard and rigorous.
InwhichKisa(TitforTat),Diya(Indemnity),Had(CertainPunishment),Tajir(Discretionary)such
kind of punishment was given. During that time inthe matter of civil law, Hindu law based on Shastrafor Hindus, Shariyat Muslim personal law, based onQuran was implemented on muslim. But in penalmatter there was no discrimination.
There wascourts Kazi from Kazi only justice was provided .Raja-Maharaja fulfills the Justice by hanging thebell of justice outside their house. Muslim penal
law was enforced till 1858 but after the coming of
English in 1600 certain changes were made in that
law. The new laws made by English had various
faults. Kazi always have one's ray. It was human
treatment for women. Hence, after the failure
offirst revolution of 1858 the whole administration
of India camein the hands of King of England,
which lead the beginning of knew era for Judicial System of India. And in that time English kept the
foundation of present judicial system of India. In
this time several acts were made by English. Out of
which some acts are still in existence. By the time
no changes have been made with those acts.
FirsttimeEnglish did codification of law based on
evidence and there upon long procedure of law was
made. In penal matters one common penal law, Indian
penal code1860 was made by English which wasenforced for the people of India which is still in
existence. But in civil matters that old personal
law of judicial system was applicable. In 1908
Civil procedure was formed. In English judicial
system Munsif Magistrate used to deliver justice.
There was provision of appeal against their order
and judgment. The basic objective of English
judicial system was to collect revenue from there
people, to protect the state and trade. Thus, they
couldn't give proper attention towards the personal
law of India. Hence couldn't establishjudicial
system according to Indian culture. For keeping the
functions of administration in their hands,they
strengthened the power of police in judicial system
so that with the power and harassment of police
they could establish their empire.
It has been 60years of our freedom. In our constitution we guarantee to every person for social, economic and
political justice,liberty of thought and expression, equality of status and of opportunity But still we are unable to provide justice to our citizens. They are still fighting for social,economic and political justice before leaders and
government institutions. Even after getting the
right to information they are still struggling for
freedom of thought and expression. There is wall of
status and class differentiation at every level of
our society. There is a big nexus between rich and
poor.
The country is suffering from inequality,discrimination, and terrorism. Indian Judiciary isoften associated with inefficiency, corruption andineffectiveness. The article present a new approachby studying the judicial system as an operationprocess.Thestudydepictshowoperation
management can find application away from its
traditional manufacturing parade and how it can be
used to build a model that very closely simulates
real life flow of cases through the judiciary. Such
an approach can provide quantifiable solution with
a focus areas were they can be most effected.
There search generatedaseriesimplementable
suggestion that were tested using model for their
impact on the judiciary .Much has been talked about the delay in rendering justice in the Indian judiciary. As of
2007, there are over 30 millions cases pending in
the courts of India. Such is the extent of pendency
that high court of Delhi could take up to 466 years
to clear out its enormous backlog. In India on an
average it takes about 2.9 years to clear a civil
case, with a standard deviation of 2.5 years.
Pendency of cases not only indicated the in
efficiency of the judiciary, but also lead to huge
economic cost for the nation.
The delay in justicebeingserveddefeatsthepurposeof
theestablishmentof remedial system, causing the
citizen to lose faith in the system.A survey of existing literature about courtcongestion in India reveals that the problem isrecognized, but the approach to the issue has beendriven by macro-level data. The suggestions in
these studies include increasing number of judges,
increasing courtrooms, reducing frivolous cases,
inclusion of IT, etc. but the solutions are rather
qualitative and their impact has not been analyzed.
The movement of a case through the court can be
viewed as an operations process similar to pizza
making, that involves a series of processes at the
end of which an output (judgment) is delivered.
However, judicial processes are different in that
they may involve different processes for different
cases, a high variability at each process step and
may involve repetition of processes - all depending
on the complexity of the case. Hence, one can be
assured of a pizza being delivered in 30 minutes
but cannot be sure if justice would be delivered to
him even in 30 years!
To build a predictive simulation model whileincorporating this complexity, we limited the scope
to civil cases in lower courts, as they are more
process driven and form a bulk of the cases (over
90% of cases are filed in lower courts). Reasonable
assumptions, like steady state and judge being the
bottleneck in judicial systemwere made. Quality
of judgment was assumed constant, which would
create an inherent variability in the process and
hence it is assumed that no compromise on quality
would be entertained.The management of the court system should bemodernized by taking advantage of new technology.
While computers have invaded all fields of activity
in the country and modern technological advances
have radically altered the working in offices, the
judiciary has remained outside the mainstream of
this technological advancement. It is, therefore,
necessary that every High Court must have a
computerized system for keeping a catalogue of
pending cases, a computerized library index of its
decisions to avoid conflicting decisions, and
adequate number of word processors, photo-copying
machines and electronic typewriters, a computerized
micro-filming centre for maintenance of record and
a telex system connecting the Supreme Court with
otherCourts.
Thisisessentialforinter-communication
andinteractionamongdifferentcourts. Judges can help by strictly adhering to thehours of work, by exercising the caution andrestraint in allowing adjournments which are thebane of our present-day court proceedings, andrestricting oral arguments to the minimum by
writing clear an concise judgments and delivering
them promptly within a short periods after the
conclusion of the hearing. After the E-court
revolution and with the investment of crore of
rupeesmostofthecourtsarelancedwithfacilities like
computer, laptop, internet, videoconferencing and
has become hightech court.
The business of the courts should be so arranged asto avoid the situation of old cases getting olderand of new cases receiving priority. Lack of properlisting and proper notice of new cases and thegiven priority to old cases is a factor whichcontributes to the accumulation of arrears and tomaladministration of justices. Matters involving
common questions of law must be grouped and posted
together for hearing before the same Bench not only
to save the precious time of court but to avoid
conflicting decisions and ensure a uniformity in
approach leading to certainly and continuity in the
progressive development of law.
Members of the legal professions can and shouldalso help. They must discipline themselves in orderto be effective ministers of justice. The argumentsshould be prudent preparation before presentationin the court either in pleadings or the advocacy.There is a tendency in our country to rust to thecourt at the slightest provocation. If lawyerscould adopt a positive approach and strive to
arrive at reasonable out of court settlements, the
time and expense of the litigants would be saved to
a great extent and the inflow of cases into courts
would be reduced, thereby facilitating expeditious
disposal of pending cases.
There is something in the very nature of the officeof a judge and the function he performs thatdemands that he should be a person of highintegrity,whatevermaybethemoralnorms
prevailing in other walks of life. The judiciary
has neither the power of the purse not that of the
sword. Its most valuable asset in the confidence it
inspires and the respect it evokes for this
capacity to redress the wrongs of those knocking at
the door of the Courts and to keep the scales even
in any dispute between the rich and the poor, the
mighty and the weak, the State and the Citizens,
without fear or favor. This can only be ensured if
the judiciary is manned by persons who cannot be
lured by pecuniary or other temptations or by
rewards or undue power and authority. Once the
image of the judiciary is tarnished because of the
doing of some of its members and its credibility
goes down, the loss is not merely that of the
judiciary, the nation itself is deprived of the
most stabilizing element in the even flow of its
life.
To reforms the judical system it is necessary to
make different laws for the social, economic and
political evils like terrorism, cyber crime, cheque
bounce, match fixing, sedition, criminal crime and
political scams and also different laws for body,
property, state, public servant, public health, religion, marriage, service contract, women and
child, transport,distributive system, environment,
etc. in place of Indian penal code 1860. Today
different laws are applied for the same subject. So
it is necessary to include these different laws
made from the same subject under one regulation.
Special courts and judges should be appointed for
different offence. Period of limitation should be
fixed for the disposal of cases.But we must remember that the judicial system andlegal machinery do not work in isolation fromsociety. They are integral parts of the entiresocial and political system.
Their working depends
on the co-operation of other elements. We must have
a non-political, efficient, dedicated honest and
upright judiciary which must have a non-political,
efficient, dedicated, honest and upright judiciary
which must be aware of its responsibilities and
remain fearless. Only such persons should be
appointed as Judges, who enjoy the confidence and
trust of the nation. They must be allowed to
function in such a manner that the country is
assured of fair and equal justice along with the
achievement of political, social and economic
justice.
If judges with special acquaintance or competence
or those who have specialized in certain branches
of law are allotted cases under that particular
branch of law, the time taken by judges who are not
familiar with the branch, specially of it is a
specialized branch. Benches formed of competent
judges should be allowed to function for a
reasonablelengthoftimeandthejudgesconstituting the Bench should know well in advancewhen the Bench is to break, so that there may be nopart-heard cases left by the Bench after is itdismantled. This however requires discipline on thepart of judges themselves. They must sit in time.They must not absent themselves from the Court
simply because there are certain rights to have
some leave of absence. This is a matter on which
theinternaldisciplineofjudgesisveryessential.
They must realize that they hold a highand dignified position in society.Withtimeamountoffine,indemnity
andcompensation should be increased. You don't get
alcohol at ten rupees but according to section 510
of Indian penal code1860 causing annoyance in
public in state of intoxication there is provision
of fine of 10 rupees. Which is not appropriate with
time.
There is a very less provision of fine for
careless and negligent driving on public way. If
the provision for amount of fine is raised and
indemnity will be fixed then the quantity for claim
of compensation under Moter vehicle Act
can becontrolled.
Under Negotiable Instrument Act if the
person who issues cheque give the information of
issuing of the cheque to the bank then in this way
the flood of cases related with blank cheque,
forged cheque, back date cheque can be controlled.
It is necessary to amend in this law made in 1881.
In India sedition related various laws likePrevention of Seductive AssemblyAct of 1911 wasmade which is still in existence. Which was madefor the protection of English administration. Nowthey keeps no importance and they should berepealed.In the definition of sedition, terrorism,detection, criminal activities against the sate,act done for breaking the unity and integrity of
nation and match fixing etc should be included.
There are still many laws existing, which representour country as slave and which is not necessaryin present.In Bhopal Gas Tragedy thousands of people died butunfortunately we could not punish the wrong doers.This is a result of not reforming the judicial
system with time.
We can say that Indian judicialsystem is completely police penal system or policeharassment procedure. It is necessarytochangeinpoliceprocedure,the processinfilingFIR,methodsofinquiryinvestigation,search,
arrest,statement, bail etc. We all are very much aware of
it.
We are living in such a judicial system in
which the top investigative agency of our country
are working under political pressure. Hence
, weneed such a liberal investigative agency which will
work only under judicial system and not under the
political pressure
Article 39A of the Constitution of India providesfor equal justice and free legal aidThe Stateshall secure that the operation of the legal systempromotes justice, on a basis of equal opportunity,and shall, in particular, provide free legal aid,by suitable legislation or schemes or in any otherway, to ensure that opportunities for securing
justice are not denied to any citizen by reason of
economic or other disabilities. This Article also
emphasisesthatfreelegalserviceisaninalienable element of 'reasonable, fair and just'procedure for without it a person suffering fromeconomic or other disabilities would be deprived ofthe opportunity for securing justice.
The right to
free legal services is, therefore, clearly an
essential ingredient of 'reasonable, fair and just,
procedure for a person accused of an offence and it
must be held implicit in the guarantee of Article
21 of the Constitution. This is a constitutional
right of every accused person who is unable to
engage a lawyer and secure legal services on
account of reasons such as poverty, indigence or
incommunication situation and the State is under a
mandate to provide a lawyer to an accused person if
the circumstances of the case and the needs of
justice so required, provided of course the accused
person does not object to the provision of such
lawyer.
On the other hand, in the civil side, Order
XXXIII. R.18 of the Code of Civil Procedure 1908
provided that the state and central governments may
make supplementary provisions at it thinks fit for
providing free legal services to those who have
been permitted to sue as an indigent person. The
Legal Services Authorities Act, 1987 made drastic
changes in the field of legal services. It is an
Act to constitute legal services authorities to
provide free and competent legal services to the
weaker sections of the society to ensure that
opportunities for securing justice are not denied
to any citizen by reason of economic or other
disabilities, and to organize Lok Adalats to secure
that the operation of the legal system promotes
justice on a basis of equal opportunity.
Once an impression prevails that justice is a
purchasable commodity and those who administer it
can be tempted, the common man would be left with
no forum to look for redress of the grievances.
There is nothing which rankles in the human so such
as a brooding sense of injustice. We must remember
that in the final analysis the people are the
judges and that every trail is a trail of our
judiciary system also. Its strength and weakness,
itssuccessandfailure,itsutilityand
credibility, the respect would depend ultimately
upon the way it satisfies the hopes and aspirations
of the people in quest of justice.
The justice is costly in our judicial system. Hence
it is not easily accessable. Whereas justice should
reach the needy. The whole judicial system should
be free and impartial. For justice going to high
court and supreme court should not be like going to
pilgrimage for indigent.
The entire life the
applicant could not get justice due to poverty.
Even couldn't touch the door of the court. In order
to provide them free legal aid, a legal aid
authority is created in district level. But as its
function is limited only till district so the real
needy person are not able to receive the services
of free legal aid. Free legal aid is given to both
accused and the applicant. But the person who is
pleading for justice but not getting it due to
poverty these authorities does not even look at
them. Whereas in reality they have the right of
getting the free legal aid.
In our country the fees of the famous and trainedlawyers are equal to the fees of actors and
cricketers, that's why every person couldn't get
the lawyer of his choice. In order to make the
judicial system cheap, easily accessable, quick and
transparent it should be made free. It is essential
that government should give fees to lawyers
involved in civil and penal cases filed in the
court, and also should bear the expenses of the
court.
Members of the legal professions can and shouldalso help. They must discipline themselves in orderto be effective ministers of justice. The arguments
should be prudent preparation before presentation
in the court either in pleadings or the advocacy.
There is a tendency in our country to rust to the
court at the slightest provocation. If lawyers
could adopt a positive approach and strive to
arrive at reasonable out of court settlements, the
time and expense of the litigants would be saved to
a great extent and the inflow of cases into courts
would be reduced, thereby facilitating expeditious
disposal of pending cases.
To-day a large number of litigation in superior
courts is concerned with interim relief's and
interim orders. If we go by the number of interim
orders subsisting for years together without the
matter coming up for final hearing due to dilatory
tactics, one gets the impression that the majority
in the profession have come to regard interim
relief as final reliefs. The number of frivolous
and vexatious petitions being filed is increasing
by leaps and bounds. An overwhelming majority of
special leave petition filed in the Supreme Court
are dismissed and yet there are no sign of decrease
in filing such petitions. Frequently adjournments
are sough upsetting the schedule of work. The
responsibility to comply with the instructions of
delays. Lawyers frequently indulge in lengthy
arguments before the court. There is need to reduce
the quantum of oral arguments prepared with great
caution and precision. Judicial time can be saved
to a great extent and the settlement of cases
expedited.
In our judicial system our government fights oncriminalissuesfromthepublic.
InIndiagovernment lawyer representformore than
hundreds of cases from government. We are well
aware from their ability and capacity, In this way
government could not provide justice to parties by
forciblygiving government lawyer. It is
essential that the deceased should be allowed to
appoint a lawyer of choice and through him should
complete the whole pleading procedure. The fees of
the lawyer should be given by government. In this
relation section 24 and section 301 of Criminal
Procedure Code should be amended.
Other than this ,
after the registration of the complaint and after
filing of the FIR the accused should be allowed to
be heard and to defend himself on the concerned
matter according to the law. According to section
207 0f Criminal Procedure Codethe applicant
should be given a copy of charge sheet.
Similarly
after the registration of the complaint there is
provision of giving a copy of complaint only.
Whereas other than complaint letter under section
200 and 202 of Criminal Procedure Code
theprescribedstatementanddocumentrelatedto
complaint should be sent by summons before court.
Hence
a copy of charge sheet should be given to
the accused while presenting the charge sheet in
the court so that the accused should come to know
about the matters involved in the case.
In our country a criminal
matter goes for years.Applicant doesn't even come to know aboutwhatjudicial proceeding are going on against theaccused involved in the case. He is just presented
as a government witness. He goes to home after that
what happened in the matter, he is not to informed.
Hence a copy of charge sheet should be given to the
accused while presenting the charge sheet in the
court so that the accused should come to know about
the matters involved in the case. As he has been
given the facility of the appeal so after the
judgment he should be informed about the judgment,
So that he can appeal accordingly.
We present the
document related to accused, witness, bail along
with charge sheet but no document relating to their
identification. Consequently a lot of time is spent
on searching them. Hence it is necessary that there
photographs along with their statement, address,
profession, mobile no. should be prescribed.
Law is the bunch of rule . The courtsshould be
so arranged as to avoid the situation of old cases
getting older and of new cases receiving priority.
Lack of proper
listing and proper notice of newcases and the given priority to old cases is afactor which contributes to the accumulation ofarrears and to maladministration of justices.Matters involving common questions of law must begrouped and posted together for hearing before thesame Bench not only to save the precious time of
court but to avoid conflicting decisions and ensure
a uniformity in approach leading to certainly and
continuity in the progressive development of law.
Thus it is essential that every court should follow
the orders and judgment decided by the supreme
court and follow it as law according to Article 141
of Constitution of India.
The Constitution of India providesforaverydelicateprocessofconsultationbetweenthe
executive and the judiciary in the matter of
appointment of judges through Supreme Court and the
High Courts. A qualitative improvement in judicial
appointments can only be achieved of all theconstitutionalfunctionariesinvolvedinthe
consultative process strive to attract and find the
best talent of character and dedication. Extraneous
consideration such as caste, community, religion,
and politics must not prejudice the selection of
judges.
The problem of delay and the accumulation of huge
arrears of cases both in the lower-courts, the High
Courts, and the Supreme Court have assumed serious
dimensions and invited a lot of criticism of the
entire legal system. The causes of this delay are
many. There are lacunas within the law itself of
which clever lawyers take undue advantage and seek
adjournments on personal grounds, for the benefit
of their clients. Justice delayed is justice
denied. The flaws in the legal system give rise to
unlimited frivolous suits, the purpose being not to
seek redress but to cause harassment to the
opponent. This is one of the most important causes
of the accumulation of arrears. For the reformation
of the judicial procedure in the Indian judicial
system,
judicialtrainingorganizationandinvestigation center are started. Various trainingprogrames and refreshing courses are organized bythese institutions. Than too judicial officers areseen unawared from the new laws and procedure.Honesty and integrity of the Judges must be giventoo priority. The judges should not merely be
honest but also seem to be so. Beside being honest,
fearless and independent, they must also be learned
and wise. They must have sound legal knowledge, and
must also know how to apply that legal knowledge to
the cases before them. They must be able to
separate the grain of truth from the chaff of
falsehood. They must be firm and above suspicion so
that they may decide a case fearlessly and give
their judgment without fear or favor. They must
have a conscience so that they may tell themselves
at the end of each day that have done their best
according to the light that is within them.
The judicial system of our country is in the new
era. Time to time new rules regulation , laws,
ordinance, are creating and so old laws are being
amended.The Judiciary interprets laws enacted by the
legislature and dispenses justice according to
those laws. The judiciary must act independently
without fear or favor. The judges must be honest
and men of courage and integrity. However, it must
be remembered that the Indian legal system is a
legacy of our colonial rulers and with the passing
of time many evils have crept into it and it fails
to satisfy the aspiration of the people. Hence
there is urgent need of a complete overhaul of
judicial machinery.
This study is aimed at analyzing the judiciary as
an operations process, using operations management
concepts of process flow and system capacity, with
the objective of coming up with quantifiable and
implementable recommendations which lead to:
1.Reduction in case loads (reducing WIP), and
2.Quickermovementofcases(increasingthroughput) To generate viable recommendations for the judicial
system, we considered a two-pronged approach.
First, there was a need to increase the supply of
capacity. Second, the various methods to reduce the
inputs to the judiciary were explored. These
solutionscanbeanalogoustoreducingthe
inventory by increasing the available capacity of a
machine, and at the same time, reducing the demand
on it. Together, these methods should help rid the
system of the excess pendency and result in a
judiciary with a healthy, time-bound movement of
cases through it.
As indicated above, the pendency at a step is in
direct relation to the time taken by it. Certain
process steps have delays introduced due to
inefficiency caused by bureaucracy and bribery.
Certain other processes are governed by archaic
practices that lead to unnecessary time delays. To
speed up the process and reduce pendency, these
steps in the system could be modernized or even
outsourced. For example, using email to serve
summons or call witnesses will greatly reduce the
time taken at these process steps. Standardizing
the process of filing and making it computerized
should also improve court records and speed up the
system.
The process by which a case continues through the
system gave rise to an observation cases take much
more time in the hearing stage rather than the pre-
hearing or pre-admission stages. In addition, the
judge time spent is almost negligible in the pre-
admission stage, but very great in the hearing
stage. Hence, if the number of cases passing
through the admission process can be reduced, the
load on the system (both caseload and judge load)
will be greatly reduced.
By moving more cases out of the judicial process
into mediation or arbitration, the judiciary can
remove frivolous, simple or repetitive cases from
the system. If the number of cases passing though
the admission stage could decrease by 5%, the total
time saved for the judge per day would be 6%.
However, if this decrease in number of cases was
achieved at the determination of issues stage, only
a 4% reduction would be achieved. Hence a practice
of move out cases as early as possible should be
followed.
The new approach to view Indian Judiciary as an
operationsprocessrevealedthaOperations
Management can add significant value in areas far
away from manufacturing. Operational modeling of
court processes can provide valuable insights,
throw light on the bottlenecks, and suggest areas
of improvement.Such a study of the Indian Judiciary suggests thatthe system is not beyond redemption" and there ishope for improvement. Operationally, there are two
major problems the pendency of cases and the
overloading of judges. An analytical model can be
built to generate simulations which show where the
problem lies and how the problems can be resolved.
Suggestions for improvement can be tested for their
impact on such models. This study can be further
extended tocriminalcases,highercourts,
different geographies and other resources like
administrative staff and courtrooms.
