Indianisation of the Legal System

In News

• At least two Supreme Court judges have in the past few months openly expressed the need to “Indianise” the legal system.

SC’s Views

• Chief Justice of India N.V. Ramana had called for the “Indianisation” of the legal system to provide greater access to justice to the poor as the “need of the hour”. 
• The need to adapt to the practical realities of our society and localise our justice delivery systems. For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court. Such cases should be avoided.

Need for ‘Indianisation’ of the Legal System

• Pendency of Cases:

Image Courtesy: PRS 

• Between 2010 and 2020, pendency across all courts grew by 2.8% annually.  As of September 15, 2021, over 4.5 crore cases were pending across all courts in India.  Of these, 87.6% cases were pending in subordinate courts and 12.3% in High Courts. 
• This implies that, if no new cases were to be filed, the time taken by courts to dispose of all the pending cases at the current disposal rate would be 1.3 years for the Supreme Court and three years each for High Courts and subordinate courts.

• Vacancies in the Courts:

Image Courtesy: PRS 

• There is a shortage of judges to decide cases.  As on September 1, 2021, the Supreme Court had one vacancy out of the sanctioned strength of 34 judges.  In the High Courts, 42% of the total sanctioned posts for judges were vacant (465 out of 1,098).  Five High Courts (Telangana, Patna, Rajasthan, Odisha, and Delhi) had more than 50% vacancies.  High Courts of Meghalaya and Manipur had no vacancies.

• Colonised System: 
  • Judicial thinking can not be allowed to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
  • Supreme Court judgments themselves show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence. 
  • The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution. The public interest litigation mechanism is truly Indian.
• Better connected with indian roots:
  • The highest judiciary has far from indulged in a “continued neglect” of the legal greats of ancient India. Several judgments since the 1980s refer to the works of Manu and Kautilya.
  • In the privacy judgment, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.
• Complex Judgements – moving away from ancient texts:
  • In its Joseph Shine judgment decriminalising adultery, the court refers to how “the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment”.
  • In the Sabarimala case, the court points to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
  • Practices which legitimise menstrual taboos, due to notions of ‘purity and pollution’, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere.
• Representation of Women in Higher Judiciary is very Low: 
  • The first-ever woman judge (Justice Fatheema Beevi) in the Supreme Court (SC) was appointed in 1989, 39 years after the apex court came into existence. Since then, only 10 women have become judges in the apex court.
  • In High Courts, women judges account for only 11%.
• Malimath Committee Report (2000) on reforms in the Criminal Justice System of India (CJS): 
  • The Committee suggested that a Schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.

Recent Improvements in Judicial System

• Virtual court system: The regular court proceedings in our Indian courts in such unprecedented times are either being adjourned or have been carried out virtually via videoconferencing. 
• eCourts portal: It is a one-stop solution for all stakeholders like the litigants, advocates, government agencies, police, and common citizens. 
  • Its benefits are as follows:
  • Bilingual:
    • This portal is designed in a way that uses multiple languages. 
  • User friendly:
    • With this portal, an individual can easily avail of such services with ease. One of the main objectives of this portal is to provide efficient and time-bound citizen-centric service. 
  • Single unified portal:
    • This portal is a consolidation of all the portals across the country.  
  • Quick delivery of court services: 
    • Case status, next hearing date, cause lists, orders, and judgments can be delivered quickly. 
• E-filing: E-filing, also known as electronic filing, is a facility that provides filing of cases through the internet. 
  • The system of e-filing has multiple advantages like:
    • It has proven to be effective in saving time, money, and travel for councils and clients.
    • Physical presence in the court is not mandatory.
    • The case files get digitized automatically. 
    • It has impacted the environment positively by reducing the paper footprint. 
• ePayment of court fees and fines:
  • Online payment can be made by the citizens using the portal. This will reduce the usage of stamps, cheques and cash. The ePayment portal is integrated with state-specific vendors like SBI ePay, GRAS, e-GRAS, JeGRAS, Himkosh, etc. 
• National Judicial Data Grid (NJDG):
  • The statistics of cases pending at the national, state, district and individual court level are now made accessible to the general public, researchers, academicians and the society at large. 
  • Any individual can access this information by visiting the National Judicial Data Grid portal. 
• National Service and Tracking of Electronic Process (NSTEP):
  • This is a mechanism that consists of a centralized process service tracking application and a mobile app for the bailiffs. 
  • This is used for quick delivery of summons, notices, processes and the reduction of unreasonable delays in process serving. 
• e-Sewa Kendra:
  • The e-Sewa Kendra is set up as a one-stop centre for accessing all the facilities provided under the eCourts Project. 
  • It has been set up in high courts and one in the district court of each state on a trial basis. 
  • With these centres, a litigant can acquire information on case status and get judgments and orders passed by the courts. 
• Interoperable Criminal Justice System (ICJS):
  • The Interoperable Criminal Justice System (ICJS) is an initiative of the e-Committee to transfer data and information between the different pillars of the criminal justice system, like courts, police, jails, juvenile homes and forensic science laboratories seamlessly, from one platform. 

Way Ahead

• Accessibility: The justice system needs to minimise procedural barriers so that accessing justice becomes simpler.
• Need for Reforms: 
  • There is no doubt that India’s justice delivery systems need improvement, and any debate on what needs to change is most welcome. 
  • The main focus should be on judicial reforms – improving court infrastructure and making available of court proceedings more easily to litigants.
• Transparency: Presently, there is no discernible method for listing up the cases. Matters should be treated in an egalitarian manner.
• Adaptation: There is an urgent need to adapt to practical realities of our society and localise the justice system.
• People-Friendly: Judicial overreach to the executive domain is antithetical to public interest. It is the role of civil society to make the courts accountable to the public and more people-friendly

Source: TH