Chapter # 37. Legal, Judicial and Police Reforms
- To ensure the safety and security of citizens and ensure access to effective legal systems and speedy delivery of justice.
Legal and judicial reforms are urgently needed to address the massive pendency and capacity issues in Indian courts, which impede access to justice.
Several archaic and defunct laws have already been repealed and many others are in the process of being weeded out. The recently announced umbrella scheme on “Modernisation of Police Forces” to strengthen law and order and modernize the police is a welcome stimulus. A part of police reform is intrinsically linked to legal/judicial reform, which would result in efficient criminal justice dispensation.
- The major challenge facing the judiciary is the huge backlog of over 2.7 crore pending cases. There are also significant capacity issues.
- Ease of doing business in India is severely constrained by the inability to enforce contracts or laws, lengthy and costly litigation and arbitration processes, and archaic legislations. Although we have the Arbitration Law of 1996, which is in tune with global principles, it has not yielded desired results in terms of lessening the pressure on courts. Nor have the alternative dispute resolution mechanisms been utilized adequately. The World Bank “Doing Business Report” 2018 ranks India at 164 in ‘Enforcing Contracts’; though an improvement of 8 positions, it is clearly not an acceptable situation.
- Police reform until recently had been stuck due to various reasons. Police/law and order is a state subject, falling under List II of the Seventh Schedule of the Constitution of India.
In a federal set up like ours, this makes policy reform a rather sticky issue. After accounting for vacant positions, there are only 137 police personnel per 100,000 citizens (17.3 lakh in all). The UN recommends 222 police personnel per 100,000 citizens.
- Legal reforms
- Create a repository of all existing central and state laws, rules and regulations
- The centre and state(s) need to create repositories of laws, rules, regulations and government orders.
- Alternatively, a three-tier repository system can be considered in line with the system of governance enshrined in the Constitution.
- Repeal redundant laws and introduce a new initiative to remove restrictive clauses in existing laws
- For the first time since independence, as many as 1,420 redundant laws have been repealed over the past four years. An identical process should be followed by all states.
- A new programme to repeal unnecessarily restrictive clauses and procedures in existing laws should be started. It will enhance both ease of living and ease of doing business indices.
- Consider the following changes in criminal justice and procedural laws
- Introduce changes to procedural laws in line with the principles and thinking behind the Commercial Division Bill.
- Change from the present litigant driven outlook to one led by an effective judiciary in line with global practice. To begin with, a review of the Code of Civil Procedure (CPC), 1908, may be considered.
o The Commercial Court, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, needs to be amended to provide for pre-institution mediation and settlement by using the services of agencies created under the Legal Services Authorities Act.
The amendment can be on the lines of the provisions of Section 89 of the CPC, under which Courts can refer disputes to one of the alternate dispute resolution mechanisms after a suit is filed. It is also necessary to fast track the consequential amendments in the respective provisions of the CPC once the Act has been amended.
- Reduce the criminalization of violations, and move towards compounding of minor offences:
o Sixty eight per cent of under-trials in jail are awaiting trial. The under-trial waiting time needs to be drastically reduced. It is also necessary to move towards community service and other non-imprisonment based punishments.
o It is necessary to re-examine the procedure for initiating criminal proceedings, arrest and bail. Summary proceedings and plea bargaining should be reorganized and implemented so that criminal cases can be settled in a time bound manner.
o Reform forensics and ballistics testing by outsourcing to accredited laboratories.
- Create a law-abiding society
- It is necessary to inculcate respect for the rule of law among citizens. The process should start at the school level and can be effected by mandatorily introducing innovative programmes with well thought out content and activities.
- Introduce incentive and sanction-based models of motivation to ensure that citizens abide by the law. The following measures may be considered:
o Prohibitive penalties should be imposed to check traffic violations, civic violations including littering in public, first time petty offenders, etc.
o Use of advanced technology is an essential pre-requisite to check these violations of the law; person-to-person direct interface should be minimized to eliminate corruption.
- If there is a resource constraint, then additional resources may be allocated for this critical purpose.
- A time line for implementation of necessary amendments should be stipulated. Such amendments should also have stipulated and binding time limits within which reports, such as ballistics and forensic reports, need to be submitted. Review and sunset clauses in legislations may also be considered.
- Continuing legal education in selected areas should be made mandatory for lawyers and judges and rules of professional conduct and ethics need to be drawn up and implemented.
- Greater sensitivity on the part of government officials to citizens’ needs can help reduce the number of litigations/disputes. This will require an attitudinal reorientation among government officials through sensitization programmes. Future prospects of employees can be made contingent on their successfully completing such programmes.
- New laws should be drafted in simple, plain language.
- Judicial reforms
- A study carried out by the Ministry of Finance found that it takes, on an average, almost 20 years for a property related dispute to be resolved, and that it would take 324 years just to clear the present backlog at the current rate of disposal. The huge backlog of pending cases is a critical logistical and efficiency issue. To tackle the issue, the following capacity building and sustainable solutions should be considered in consultation with the judiciary:
- Shift certain sections of the workload out of the regular court system to commercial courts, the commercial division and the commercial appellate division of High Courts for commercial disputes and the Criminal Judicial Magistrate for criminal cases at least in metropolitan areas to decongest courts.
- A mechanism may be considered whereby litigants in a commercial dispute must first be made to exhaust the remedy of pre-institution mediation and settlement. However, it should be ensured that such cases do not create one more stratum in litigation.
- The Arbitration and Conciliation Act, 1996, should be amended to make India a robust centre for institutional arbitration, both domestic and international. A new autonomous body, viz., the Arbitration Council of India, should be set up to grade arbitral institutions and accredit arbitrators to make the arbitration process cost effective and speedy, and to pre-empt the need for court intervention.
- Merge and rationalize tribunals to enhance efficiency. Appointments to tribunals must be streamlined either through a specialized agency or under the Department of Personnel and Training (DoPT).
- Judicial decisions need to take account of their economic and social impact, especially in cases pertaining to contract, labour, tax, corporate and constitutional issues as observed by the Supreme Court in a recent judicial decision.
- An all-India judicial services examination on a ranking basis can be considered to maintain high standards in the judiciary. The selection process may be entrusted to the Union Public Service Commission (UPSC) for a cadre of lower judiciary judges (first induction level), Indian Legal Service (both centre and states), prosecutors, legal advisors, and legal draftsmen. This will attract young and bright law graduates and help build a new cadre that can enhance accountability in the governance system.
- Continuing training may be introduced to ensure development of skills, ethics, knowledge and awareness of international best practices.
- Multi-faceted training faculty for judicial academies including reputed lawyers, successful NGOs and others, for holistic exposure may be considered.
- Training modules should be live streamed on an e-platform to make information easily accessible, and widely disseminated.
- Consider a performance index for judges and a separate state wise index for ease of getting justice.
- Introduce an administrative cadre in the judicial system to streamline processes. To maintain judicial independence, the cadre should report to the Chief Justice in each High Court.
- Prioritize court process automation and ICT enablement for electronic court and case management, including electronic management of court schedules and migration of all courts to the unified national court application software.
- Facilitate the availability and usage of video-conferencing facilities to assist in speedy access to justice and to minimize logistical issues. At present, even the available video conferencing facilities are not utilized optimally.
- Police reforms
With fiscal support to the states now being looked after under the umbrella scheme, the following reforms maybe considered:
- The Model Police Act of 2015 can serve as the basis for legislative reform as it modernizes the mandate of the police, puts in place a governance mechanism that insulates the police from political interference and provides for the measurement and tracking of police performance.
- A task force may be created under the Ministry of Home Affairs (MHA) to skill personnel and identify non-core functions that can be outsourced to save on staff.
- States should be encouraged to ensure greater representation of women in the police force. The MHA should come up with a policy to encourage greater participation of women to achieve a target share of 30 per cent women among new recruits.
- Launch a common nation-wide emergency contact number to attend to emergency security needs of citizens.
- Integrate the Lokpal and Prevention of Corruption Acts into police reforms to enhance accountability.
- Transfers/postings of police personnel should be made more transparent and the involvement of police in prosecution needs to be looked at more closely.
- It is important to consider introduction of remodelled training modules, refresher courses and continuing education for police personnel including live-streaming of training modules on e-platforms. A concept of certification of security personnel with identified skill sets may be considered with linkage to promotion and deployment.
- Introduce reform of the First Information Report (FIR) lodging mechanism, including introducing filing e-FIRs for minor offences. Besides, police challans, investigation reports, etc., should be made available through the online portal of each police station.
- A separate cadre for exclusively looking into cyber-crimes, cyber threats and fraud needs to be developed.
- A panel of experts in psychology, negotiation, language proficiency and training may be put together.
- A technology centre may be considered for benchmarking and identifying suitable technologies for the police under BPR&D in collaboration with IITs. A separate National Cyber Security Division may be considered to support and coordinate initiatives of state governments in handling cyber-crimes.
- A separate dashboard for interface with citizens for reporting and redressal of cyber crimes may be considered. Besides, big data analytics may be utilized in a big way. The Crime and Criminal Tracking Network and Systems project may be completed along with the launch of Phase 2 for linking of crime, prosecution, court and prison databases.