By Shobhit Mathur
The Indian judicial system is failing. It is crumbling with the weight of more than 3 crore pending cases which are increasing each day. People of India are losing hope that justice will be delivered in time through the Indian courts. There have been several recommendations made by the law commission and researchers to fix the ailing system. However, these recommendations primarily address the supply side of the system, i.e. the courts and the judges.
Popular recommendations have been made to increase the number of judges to meet the demand for timely justice delivery. The demand side of the system, which includes the people approaching the courts for justice, has been ignored. While we add capacity on the supply side of the system, we need to reduce the demand as well. We need to explore ways to solve disputes before they enter the formal court system. This is a pragmatic way to build a long-term sustainable solution in the limited time we have. The pre-colonial model of village courts in India might show us a way.
Inadequacy of Current Approach
For several years, the most popular recommendation has been to increase the number of judges. In May 2016 the CJI TS Thakur suggested that 70,000 more judges are needed over the current 18,000 judges to tackle the pendency problem. Clearly, more judges imply more courts, more staff, more funds, and more lawyers, etc.
Even if we assume that this is indeed the fix to the system, we can see that it is not practical. 45% of the judicial posts in high courts are lying vacant today. Above this, there is a need for systemic reform on the supply side, not just increasing the judges. The archaic and inefficient procedures, the lack of affordable legal aid, and the complex laws do not inspire confidence in the justice seeker. Repeated travel to courts in district centres for hearings results in huge expenditure and loss of daily income.
Many genuine people choose to stay out of the system to avoid the hassle and the costs of justice.
Clearly, fixing the supply side alone will take its time and cost, which are both scarce.
Fixing the Demand Side
According to NJDG data, more than 7 lakh cases were filed in India’s district courts last month. It is time to think how some of these cases could be addressed before reaching the resource crunched formal court system. A parallel can be drawn from the local self-governance model of Panchayati Raj.
The idea of self-governance is that each village should take care of its own affairs; this is incomplete without a local judiciary. Just like the administration, the judiciary needs to be further decentralised and allow the villages to take care of the litigations locally. This is in consonance with the directive principle contained in Article 39A of the Indian Constitution which states that the State should take steps to provide opportunities for securing justice to all its citizens.
The village courts from the pre-colonial times have characteristics which offer a solution. These were informal courts which provided a fair and speedy resolution of village disputes at the local level. These courts were conducted in the open for everyone to participate, ran on low cost and focused on mediation and conciliation. Since the hearings were within the village in front of the community, it was easy to bring forth evidence and witnesses and difficult to perform perjury. Moreover, these hearings were conducted in the local language which made the process of justice delivery comprehensible to the last person. Many aspects of this institution can be revived today.
In 2009, the Panchayati Raj Ministry drafted the Nyaya Panchayats bill to revive this institution. However, the law ministry rejected the bill saying it is unconstitutional. The law ministry objected to members of the Nyaya Panchayat not having any legal background. Another common criticism of the Nyaya Panchayats is that villages are faction-ridden and poor and the oppressed will not get justice if the institution is captured by the elite. The draft bill has addressed both these concerns by elucidating how the panch will be elected and what (limited) types of cases the Nyaya Panchayat can decide upon.
The bill deserves to be debated and reconsidered as the institution it aims to resurrect has the needed features to solve the current judicial crisis. India needs forums where justice can be delivered with people’s participation at the local level. Sufficient oversight and checks and balances can be maintained to ensure their fair functioning.
The Path to Justice
The complex formal legal system in India cannot dispense justice quickly and at a low cost to the masses. The costs and time involved in seeking justice has made the system beyond the reach of many, especially rural India. There is a need to decentralise the justice delivery system and involve people in resolving their disputes at the local level. This is scalable at a low cost.
In this context, the Nyaya Panchayats need to be relooked and formally instituted. They would help in reducing the demand on the current system and play an important role in building an effective and agile judicial system – an urgent need of the day.
Shobhit Mathur is the Executive Director of Vision India Foundation. He is an alumnus of IIT Bombay, University of Washington and the Indian School of Business.
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