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The spotlight is again on the law !

April 26, 2016 | Blog, Uncategorized

The spotlight is again on the law :-

Last week the Prime Minister addressed the judiciary and promised that he would look into the long standing demand for augmenting the numbers of judges. In the US, while there are 108 judges to a million people, in India the system has to do with 12. There are today more than 3 crore cases going on in our courts, and at least ten percent or these more than ten years old. More than ninety per cent of these cases are languishing at the level of subordinate courts. And that is where, of the 20000 judges required, more than 5000 vacancies exist. In our High courts, 348 positions for judges are still to be filled.

The judiciary in India is indeed a proud institution that is respected by its citizens. India’s commitment to the rule of law is indeed what distinguishes it from most middle income countries and also from its neighbours. The World Justice Project places India fares high on democratic controls. India ranks 37 of the 97 countries surveyed around the world. It is first among five in South Asia, and second out of 23 lower-middle-income countries.

The Indian administrative and governance system is founded on the Rule of law.  Rule of law is one of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of the United States and India. Rule of Law is derived from the French phrase ‘la principe de legalite’ or the principle of legality which refers to a government based on principles of law and not of men. The law is superior to the ruler.

Yet the rule of law in India that is so clearly written out in the Constitution does not always exist in practice. When it comes to procedural effectiveness, India fares poorly. Each link in India’s rule of law supply chain, starting with legislators who draft the laws to the police who enforce them is problematic. Indeed, the supply chain, never strong to begin with, has become deeply broken threatening the rule of law. However belief in the value of law itself continues but could be under threat.

However, it is not only the problem with the number of judges that needs to be solved. There is also the question of infrastructure. For example the case of the nearly 3 lakh undertrials languishing in jails across the country. Of these 3000 have been behind bars without trial for more than five years. Section 436A of the Criminal Procedure Code was amended to give bail to undertrials who have spent more than half their possible sentence already behind bars. However, what is lacking is simple software that sends out timely alerts for all undertrials.

The concerns are several. In addition to filling vacancies, deploying software, training judicial staff and providing adequate space, what is also important is to understand the basic issue. That of retaining the independence of the legal system. It is also important to understand the need to take law reform seriously. It is also important to ensure that the police is taught to prevent crime and not just maintain law and order. When investors look at India, they will be worried about legal delays and difficulties in enforcing contracts. If an average case involving a corporate firm takes more than 12 years to settle, most industrialists will get discouraged.

By
Amir Ullah Khan
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