TARGET UPSC TARGET UPSC The Lead You Need Sankalp Integrated Mains Program Day 02 Do you think an ‘All India Judicial Service’ could act as a panacea to solve the issues inherent in the Indian judiciary? Introduction The vision document titled ‘Strategy for New India @ 75’, released by the NITI Aayog, amongst other things, proposes a spate of judicial reforms. The think-tank has come out batting for the creation of an All-India Judicial Service (AUS), akin to the other central services like the IAS and the IPS. The 14th Report on Reform of Judicial Administration- alluded to the need for creating a separate all-India service for judicial officers. This report favoured an AUS to ensure that subordinate court judges are paid salaries and given perks at parity with government bureaucrats, thereby incentivising the option of the state judiciary as a viable career prospect. Stages of Evolution of AUS 1. 1* Mooted by the Law Commission in the 1950s: Where, the district judges will be recruited centrally through an all-India examination. They will then be allocated to each State along the lines of the AIS. 2. Then, The proposal for an All-India Judicial Service was first suggested in the Chief Justices’ Conference in 1961 as a way to remove any scope for judicial or executive intervention in the appointments to the judiciary in the High Courts and the Supreme Court in India, a. But opposed by some High Courts [PRenroll: hetpsi/targetupsc.in/courses _| [J] Contact: 8830115524TARGET UPSC 3. 42" Constitutional Amendment Act, to provide for an AUS under Article 312. a. Article 312 was amended to confer power on the Rajya Sabha to initiate the process for setting up an AUS, by passing a resolution supported by two-thirds majority in the upper house. 4, The proposal was again floated by the ruling UPA government in 2012. But opposed as some Judges thought of it as infringement of their rights. 5. Currently, on similar lines subordinate and district judges are recruited by High Courts on the basis of a common examination. Need for AUS 1. Promotion of AUS: It is an attempt to ensure that younger judges are promoted to the SC and HCs. a. In the existing system, recruits join as magistrates in the subordinate judiciary and take at least 10 years to become district judges. 2. Transparency: This is expected to ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession 3. Currently India’s legal infrastructure is facing various issues, particularly the lower judiciary. a. Atpresent India has just 13 judicial posts per million people, though the Law Commission had recommended 50 judges per million of the population, based on the ratio prevalent in the US previously. 4, Vacancies: Judiciary is suffering from massive vacancies across the nation and the scarcity is worsened in some states due to judicial absenteeism. a. The working judicial strength is 32 against the sanctioned strength of 34 5. High Pendency: As a consequence, the pendency is high with the number of cases about 2.8 crores. Some Facts 1. As of May 2022, over 4.7 crore cases are pending in courts across different levels of the judiciary. Of them, 87.4% are pending in subordinate courts, 12.4% in High Courts, while nearly 1,82,000 cases have been pending for over 30 years. 2. The Supreme Court's statistics show that 70,362 cases are pending with it as on April 1, 2022. 3. While 52,110 are admission matters, 18,522 are regular hearing cases [PRenroll: hetpsi/targetupsc.in/courses _| [J] Contact: 8830115524TARGET UPSC 4. The number of Constitution Bench cases (both main and connected matters) total 422. 6. Infrastructure inadequacies: like newly appointed judges does not have required court rooms; hence there is need of huge investment. Issues with AUS 1. Solving Vacancy issues a. The AUS is being proposed as a panacea to cure the chronic vacancy crisis plaguing the Indian subordinate judiciary b. Anall-india service potentially offers is a more streamlined and regularised recruitment process for the limited number of vacancies for district judges in the country. 2. Dichotomy Between Articles 233 and 312: As per Article 233, recruitment to subordinate judiciary is the prerogative of the State a. Thus, many states and high courts have opposed the idea on the ground that it would go against federalism. 3. Language Barrier: Since cases in lower courts are argued in local languages, there have been apprehensions as to how a person from north India can hold hearings in a southern state. Violates Basic Structure Doctrine a. Niti Aayog’s document rather ambitiously proposed an AUS to cover entry level civil judges, prosecutors and legal advisers to comprise the service (subordinate judges b. A sweeping mandate would require considerable amendments to the Constitution, especially with respect to the appointments process for the lower subordinate judiciary (thatis, all ranks below that of a district judge). c. Presently, the appointments to the subordinate judiciary are made under Articles 233 and 234 of the Constitution under State High Court Purview. d. These amendments, establishing a centralised appointments mechanism, may arguably be constitutionally untenable and vulnerable to being struck down as flagrant violations of the basic structure doctrine and judicial federalism. 5. Oversimplification: a. The idea of an AUS has been significantly contentious within the legal fraternity and other concerned stakeholders | ER enroll: https://targetupse.in/courses G contact: 8230115524TARGET UPSC b. The proposal for AUS was floated by the ruling UPA government in 2012 but the draft bill was shelved again after opposition from High Court Chief Justices who labelled this an infringement of their rights ¢. Taking into account local laws, practices and customs which vary widely across States and even training judges in this line would be a problem d, The need to ensure reservation for locally domiciled citizens, the central selection mechanisms will throw up grave concerns impugning their utility and legality as judicial reforms. Suggestions 1 Itis through an all-India judicial services examination conducted by the UPSC in order to maintain “high standards” in the judiciary. Addressing Judges to Population Ratio: India has about 21 judges per million people a. The Law Commission in its 120th Report recommended that the strength of judges per one million population may be increased from 10.5 to 50 judges per million population It may be more prudent to investigate the reasons and causes for the large number of vacancies in the poorly performing States. Bottoms-Up Approach in the recruitment to address issues like corruption and nepotism in the lower judiciary. Higher Representation of Marginalised Sections of Society: as Government can ensure the same through its affirmative policy. a. Only 10 women have become judges in the apex court. b. Overall, women judges account for only 11% of HC judges. Everybody onboard: AlJS is facing hurdles from the administrative block and also from High Courts, even though Supreme Court has asked for AUS twice. Therefore, AUS should be designed in a manner to remove its shortcomings and it can be an effective solution to the vacancy in Judiciary No Delays: Adequate judges can be made available only if they are recruited in large strength through AUS just like we see in case of IAS, IPS, IFS and other civil services. Hence there should be no more delay Skill Training: Moreover, after the selection, a Judicial service officer can be provided sufficient training to handle the job AUS is not a Panacea 1 Issue of local laws differences. [ER enroll: https://targetupsc.in/courses _| ] Contact: 8830115524TARGET UPSC 2. Mismanaged status of legal education in India: Except for a few national law schools, others do not prioritize the legal education too much. Law is taken as the last report who do not get into medicine, IITs etc. 3. _Unremunerative pay is a big issue: Despite an effort by the Supreme Court to ensure uniformity in pay scales across States in the All India Judges’ Association case, itis still very low. 4, Fewer Promotions: Judiciary has fewer avenues for growth, promotion and limited avenues for career advancement. 5. Low district judge representation in the High Courts, as less than a third of seats in the High Courts are filled by judges from the district cadre. The rest are appointed directly from the Bar. 6. Itwill be difficult for the less privileged background to enter the profession. 7. Again coaching institutes ete would flourish and education would be commercialized. 8. Against the Independence of Judiciary as some other body will have a control in appointment and integration of lower judiciary. Conclusion A meritocratic judiciary is the need of the hour which is possible with a competitive recruitment process. AUS should be designed in a manner to remove its shortcomings and it can be an effective solution to the vacancy in Judiciary. Despite the limitations, the establishment of AUS makes a strong case because, if Givil servants can learn the local language of the state they are posted in, even a judicial service officer can. Selected Judicial service officer can be provided sufficient training to handle the job. | ER enroll: https://targetupse.in/courses G contact: 8230115524TARGET UPSC Do you think that Online Dispute resolution (ODR) could be a promising Alternative Dispute Resolution mechanism that can promotes innovate ways to address legal disputes. Comment Introduction Alternative Dispute Resolution has become an integral part of the justice system in the current times since it involves rapid settlements and results in outcomes that are often favorable to both parties. Generally, ADR uses neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute. Itis a method which enables individuals and group to maintain co-operation, social order and provides opportunity to reduce hostility Online dispute resolution is a further extension of the same, and the only differentiation is that involves the utilization or assistance of technology to resolve the disputes. Retired justice AK Sikri-led committee on the action plan for online dispute resolution, set up by the NITI Aayog, has suggested in its report that the government builds up requisite infrastructure and sufficiently enhances capacity if it intends to mainstream ODR and make it broad-based in India. Alternative Dispute Resolution Mechanisms in India 1. Arbitration: The dispute is submitted to an arbitral tribunal which makes a decision (an “award’) on the dispute that is mostly binding on the parties. 2. Conei n: A non-binding procedure in which an impartial third party, the conciliator, assists the parties to a dispute in reaching a mutually satisfactory agreed settlement of the dispute. 3. Mediation: In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. 4. Negotiation: A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute 5. Lok Adalat: It roughly means “People’s court”. India has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is an improvement on that and is based on Gandhian principles. Advantages of ODR: | ER enroll: https://targetupse.in/courses G contact: 8230115524TARGET UPSC 1. The key advantages of establishment of Electronic Courts in India is bringing in a justice serving mechanism that is transparent, efficient, affordable, time saving, protects the interests of witnesses, reduces the backlog of pending cases and most importantly reduces the number of unscrupulous activities 2. Entire information related to a particular case would be available online. 3. Registered attorneys can file their case document directly from their home or office. They do not have to worry about postage, traffic congestion or messenger services. They can create a docket sheet and update it immediately, when the documents are filed 4, Easy Accessibility: With the help of internet, the documents of a case can be accessed easily from anywhere at any time. 5. E-courts would help in the computerization of workflow management in courts. & Will stop the misplacement of the records. 6. Witness Friendly: In many cases, the witnesses are not able to come to the court and make their statement as the other party is too strong and scares them of the consequences. Limitations of ODR: 1. E-courts in India is an endless and complicating process. a. The process of e-filing a documentis a difficult process. b. All the evidence cannot be produced in a digital format. 2. Lack of techno legal expertise: Without them electronic courts cannot be established in India. 3. Capital Expenditure involved: It involves the use of a lot of computers and infrastructures. In the long run, e-courts may face the issue of lack of funds. 4, Hacking: The possibility of e-Courts getting hacked cannot be denied. Measures needed 1. Well Defined & pre-decided framework: Will help in laying a roadmap & direction 2. Need of Effective Task Force: Consisting of judges, technologists, court administrators, skill developers and system analysts to draw up a blueprint for institutionalizing online access to justice. 3. Giving them teeth: They must be charged with the responsibility of establishing hardware, software and IT systems for courts; a. examining application of artificial intelligence benefiting from the data base generated through e-courts projects; b. establishing appropriate e-filing systems and procedures. | ER enroll: https://targetupse.in/courses G contact: 8230115524TARGET UPSC 4, Creating skill training and recognition for paralegals to understand the system better and trickle down its affects. The Blueprint could be followed by other states with provision of improvisation. 6. Need of Robust Security System: to make it safe from hackers. 7. User Friendly Ecosystem: which is simple and easily accessible by the common public will encourage litigants to use such facilities in India. Data Centre: Need dedicated efforts to maintain e-data. Suggestions 1. Balance between the protecting the rights and interests of its users while ensuring that over-regulation does not stifle innovation. 2. Need is to strengthen the ADR framework & ODR related amendments. 3. Need for an umbrella legislation for mediation, introduction of a data protection law, digitisation of legal processes like notarisation, and requiring mandatory pre- litigation mediation for pre-determined classes of cases. 4. Introducing guidelines or principles that, though presently voluntary, should be adopted in letter and spirit by ODR service providers. 5. The policy plan recommends that these service providers, which include technology platforms, ODR service centres and neutrals adopt design and ethical principles. Conclusion Government should take targeted initiatives like setting up legal tech hubs and tax incentives for the private sector to enable faster adoption of ODR. ODR exists at the cusp of these developments and is set to re-structure dispute resolution not just in India but in other nations that are looking at India for inspiration Mediation Bill 2021: Government of India has released a Draft Mediation Bill 2021 for promotion and strengthening of Alternative Dispute Resolution (ADR) mechanisms in India. Key features of the Mediation Bill, 2021 1. The Draft bill aims to enforce domestic and international mediation settlement agreements, provide for a body for the registration of mediators, encourage community mediation and make online mediation an acceptable and cost-effective process 7 Enroll: https://targetupsc.in/courses Gi contact: 8830115524TARGET UPSC 2. The draft Bill proposes for pre-litigation mediation and at the same time safeguards the interest of the litigants to approach the competent adjudicatory forums/courts in case an urgent relief is sought 3. The successful outcome of mediation in the form of Mediation Settlement Agreement (MSA) has been made enforceable by law. Since the Mediation Settlement Agreement is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds. 4. The mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure 5. The registration of Mediation Settlement Agreement has also been provided for with State/District/Taluk Legal Authorities within 90 days to ensure maintenance of authenticated records of the settlement so arrived 6. Itprovides for establishment of the Mediation Council of India 7._Italso provides for community mediation | ER enroll: https://targetupse.in/courses G contact: 8230115524