Court vacancies, reforms: what chief ministers & judges must tackle when they meet this week

The chief justices-chief ministers’ conference is a rare forum where the executive and judiciary come together to talk about issues that matter to both.

Supreme Court of India | Manisha Mondal | ThePrint

At a joint conference of chief ministers and chief justices in April 2016, then-Chief Justice of India T.S. Thakur broke down while making an impassioned plea to address the issue of unfilled vacancies in the judiciary. Judicial reforms are not the responsibility of the judiciary alone – and the CM-CJ conferences, held intermittently since one of the earliest ones organised in 1993 under then-CJI M.N. Venkatachaliah, have highlighted it repeatedly. Both the judiciary and the executive need to play their parts well.

The chief justices-chief ministers’ conference is a rare forum where the executive and the judiciary from across the states come together to talk about issues that matter to both parties. While these conferences have adopted wide-ranging resolutions over the years, their monitoring has largely remained uneven. With the next CM-CJ conference scheduled for 29 August – 1 September, it’s time for the participants to contemplate reform recommendations that take a comprehensive look at the judicial system.

Have resolutions been implemented?

In the CM-CJ conference convened in 2009, the Chief Justices proposed a two-tiered mechanism, one each at the levels of the central and state governments, for the implementation of the resolutions passed at these joint conferences. But this permanent mechanism still eludes the judiciary. Based on information available on the websites of state-specific high courts, it has been found that Delhi, Meghalaya, Jammu and Kashmir, Sikkim, Punjab and Haryana, Manipur, and Gauhati have set up committees that monitor the implementation of the resolutions. What is not available are the deliberations/minutes of the meetings of these committees.

Systematic and consistent monitoring of the status of implementation of the resolutions will bring clarity in preparing the agenda, and avoid replication of resolutions in future conferences. Monitoring will also serve as a measure of accountability for these conferences and ensure, to some extent, that the resolutions adopted therein have some binding value.

For instance, the CM-CJ conferences have discussed certain subject matters repeatedly. Resolutions on their recommendations to establish new courts, improve infrastructure, increase the strength of judges in high courts as well as subordinate courts, strengthen the legal aid system, training of judicial officers, and for reforming the IT processes have also been passed and adopted. But among several issues that have not found any major mention in any of the conferences in the past years is the reform to the criminal justice system.

Recommending reforms

It appears that the potential of a forum as prominent as the CM-CJ conference is not being utilised sufficiently. This year’s conference should be used to deliberate progressive reform recommendations for the judiciary, which move beyond what has been oft-discussed. The conference should invite attention to the following:

Initiating pilot projects: Pilot projects for the subordinate judiciary, initiated by the high courts, can go a long way in embarking on evidence-based judicial reforms. Projects can be piloted in certain courts/court complexes for matters such as the implementation of case flow management systems, scientific calculation of the required strength of judicial and non-judicial staff, and using predictive tools in court management.

Enhancing institutional capacity: The judiciary, on many occasions, is faced with the shortage of human, technological, and financial resources. The conference should discuss ways to increase budgetary support for not merely enhancing infrastructure and operational expenditure, but also improving institutional capacity. To that end, budgeting practices should be strengthened to make it need-based and aligned with the vision for the judiciary. A permanent secretariat for overseeing judicial appointments, permanent offices in the Supreme Court and high courts for conducting research, and state-level IT teams for training court staff should be budgeted for.

Improved management of government litigation: It is well-known that the Union government and state governments are the biggest litigants in India, with 46 per cent of all cases pending in Indian courts naming the government as one of the parties (as of 2017). On the technological aspect, government departments should adopt information and communication technology-based workflows and tools for managing cases. At the same time, they should adopt a concerted policy of ‘minimum adjournments’, and also commit to timelines for filling vacancies in posts of government lawyers.

Improving investigation capacity: In previous editions of the conference, while there have been recommendations regarding electronic evidence and reform of the juvenile justice system, important issues concerning criminal investigation mechanisms have not been raised. To address that, the executive as well as the judiciary need to commit to timelines for the rollout of an Interoperable Criminal Justice System (ICJS) in the jurisdiction of each high court.

The ICJS is a system that enables the exchange of data between various pillars of the criminal justice system – the courts (particularly, subordinate courts), the police, prisons, prosecutors, and forensic labs for effective exchange of information during the investigation of crimes, and criminal trials. To kick-start a conversation around reforms in the criminal justice system, the conference can focus on two specific issues. First, the improvement of mechanisms for supply and use of forensic science laboratory reports (FSL) by the trial courts; second, improvement of prison management systems (PRISMS), which is an essential tool for gathering data on undertrials and convicts.

Envisioning judiciary as a platform: The moment is opportune for transforming the judiciary into a ‘platform’. This will envisage that the judiciary becomes natively digital and puts the citizen at the centre. All processes that do not require parties to be heard by/before a judge can be conducted digitally. All inputs, such as documents for filing before the court, evidence, etc, can be provided through a single digital point of access. In other words, it is worth discussing that litigants be able to invoke the jurisdiction of courts through online means.

Modernising tribunals: In the decades gone by, while the number of tribunals has mushroomed, so has the incidence of pendency before them. At the same time, tribunals also face concerns about the impartiality of the members and distribution of work across benches. There is an urgent need to radically transform the manner of functioning of tribunals. To that end, reforms concerning the impartial selection of members, uniformity in service conditions, better distribution of work between different benches, and use of updated technology for better access to justice should be considered.

One may argue that until reforms to the judiciary are systematically carried out, it should not matter whether suggestions for reforms repeat themselves or new ones do not come up for discussion at the CM-CJ conference. However, considering that a meeting of this level between the executive and the judiciary happens once in a couple (or more) of years, this opportunity should be used better, and tough questions on judicial reform should be asked (and answered). The CM-CJ conference should not go down the path of the Inter-State Council, which, despite being a constitutional body, has failed to become a vibrant forum discussing issues of federal importance.

The author is Research Associate at DAKSH, Bengaluru. She would like to thank Ms. Gunjan Rathore, intern at DAKSH for her research assistance. DAKSH has prepared a Note on Agenda for the Joint Conference of Chief Ministers of State and Chief Justices of the High Courts, which can be accessed on DAKSH’s website. Views are personal.