The Collegium Controversy

Supreme Court of India

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion?

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium (see box).

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

A closed-door affair without a formal and transparent system;

The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:

To seek a reconsideration of the three judgments before the Supreme Court.

A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on appointments

1 The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2 The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3 Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4 The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5 The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6 Recommendations by the CJI without [such compliance] are not binding upon the government.

7 The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8 The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9 The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .

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The High Court of Judicature at Madras at 150

High Court Madras

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As the Court, which has many firsts to its credit, enters its 150th year and celebrations are being planned in a big way, it is high time a social audit was done on its performance.

JUSTICE CHANDRU

August 15, which we celebrate as our country’s birthday, is also incidentally the birthday of the Madras High Court. It was born 85 years before India got its Independence. The Indian High Courts Act, 1861 passed by the British Parliament enabled the colonial government to establish High Courts of Judicature in India. It merged the earlier Supreme Courts functioning in the Presidency Towns along with Sadar Adalats and established High Courts in the three Presidential Towns of Bombay (Mumbai), Calcutta (Kolkata), and Madras (Chennai). The Act authorised Queen Victoria to issue letters patent under the great seal of the United Kingdom to erect and establish High Courts of judicatures.

The court at the time of its establishment was required to discharge cases with “justice, equity and good conscience.” Though the charter for the establishment of the High Court of Madras was issued on June 26, 1862, the Madras High Court was inaugurated on August 15, 1862. After its initial functioning at the present Chennai Collectorate, it moved to the present campus in 1892.

The High Court initially administered its jurisdiction only within the Presidency town. Its jurisdiction got extended to the entire Presidency subsequently. Being the High Court established by the Act of the British Parliament, it had the power to issue prerogative writs. The power to issue writ in the nature of habeas corpus was curtailed by Section 491 of the Cr.P.C. (1898). After the enactment of the Government of India Act, 1935, the power to issue habeas corpus writ was restored. Subsequent to the enactment of the Constitution (1950), the High Courts were recognised by the Constitution and the power to issue writs, orders or directions was conferred on it under Article 226. The power under Article 226 became a potent weapon in the hands of citizens as against acts of States to keep it under check. It was held to be part of the basic structure of the Constitution. No constitutional amendment can divest that power [L. Chandrakumar’s case – (1997)].

After the States Reorganisation, many parts of the Madras Presidency went away to form Andhra Pradesh, Karnataka, and Kerala. Those High Courts were called the Andhra Pradesh High Court, the Karnataka High Court, and the Kerala High Court, and named after those States. But the name of the Madras High Court remained unchanged notwithstanding Madras becoming Chennai. It is incongruous that even after the establishment of the Madurai Bench of the Madras High Court (2004), it is still called the Madras High Court. It is high time it was called the Tamil Nadu High Court.

Since 1892, many changes have taken place. The beach opposite to the High Court, popularly known as High Court Beach, disappeared thanks to Port Trust cornering the place. The Light House beaming its light over the city, which was housed within the High Court building, was closed. It is ironical to have facade lighting arrayed to see the old Light House in the evenings. But within the High Court, many things have remained unchanged: the Silver Mace bearers going in front of the judges to the Court, lawyers and others addressing judges as My Lords and Lordship and wearing colonial robes (black coat and gown). Even women judges are to be called My Lord and Her Lordship. Even after the Bar Council of India resolution No.58/2006, dated April 9, 2006, lawyers continue to address the court with honorifics such as My Lords. Strangely, though there is no law prescribing robes for the judges, they adorn the same attire and refuse to change the customary practice.

As the Court enters its 150th year and celebrations are being planned on a big scale, it is high time a social audit was done on its performance. The 150 years period will have to be necessarily split up into two parts, that is, the colonial and the post-colonial period. At the time of its establishment, judges were solely appointed by the Crown, two-thirds of the vacancies were to be filled up by English and Irish barristers and bureaucrats drawn from the covenanted civil services. Judges had to serve during Her Majesty’s pleasure. While the Government of India Act, 1935 provided some changes, it was only after the Constitution was adopted in 1950 that a constitutional framework for High Courts was evolved.

Any study on this institution must cover the functioning of the Court under the colonial government to know its role during the two World Wars and how far it had acquitted itself. There were instances when lawyers who participated in the freedom struggle were punished and had their names removed from the bar roll. The cases of detenues’ appeals during World War II were dealt with by British judges in a secret manner and records relating to appeals under the Public Safety Act are yet to be explored by historians.

Undoubtedly, the Madras High Court is the first in many respects. It is the first High Court whose judges have declared their assets and put it up at the official website. The judges have also adopted the “statement of values” evolved by the Supreme Court (1997). The judiciary here represents a wider cross section of society compared with many High Courts in India. The Madras High Court tops in the rate of disposal of cases in India. But the ever-increasing load of cases has created problems of space not only for lawyers and litigants, but also for the system of keeping records and maintaining them. The number of Tribunals created has taken away the powers of the High Court. The systematic deprivation of the High Court’s power is not conducive either to the independence of the judiciary or to the rule of law.

Even after 61 years of the Constitution, the High Court is still not allowed to have Tamil as the additional court language. Though the Court gave its consent in the year 2006, the presidential notification is nowhere in sight. The colonial practice of having a summer vacation and working 210 days in a year is clearly a huge waste of human resources. It is high time the courts functioned like any other public offices round the year. Being sentinels of justice, the doors of the courts should never remain closed. They can be operated in such a way that leave can be granted on a rotational basis to judges.

Work stoppages by lawyers are another evil that has crept in. Even after the Supreme Court’s judgment in Harish Uppal’s case (2003), the High Court continuously lost 30 to 40 days due to work stoppage by lawyers in the last few years.The role of lawyers is an essential adjunct for proper maintenance of the court system. Unbecoming scenes that are witnessed in courts are largely on account of lack of proper training in law and ethical values. The justice delivery system depends on the quality of the Bar. The improvement of legal education in the country must be taken up as a priority.

All stakeholders must ponder over the ills plaguing the justice delivery system and strive for a people-oriented justice delivery system. This is the imperative need of the time when the entire nation debates on the Judges’ Accountability Bill and vociferous cries are heard for inclusion of the higher judiciary under the Lok Pal‘s ambit. With mounting arrears and a huge backlog of cases, we are sitting over a volcano. The latest statistics given to the press by the High Court reveal that there are more than 400,000 civil cases and around 50,000 criminal cases pending for disposal.

In the words of the Supreme Court of India: “People in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the authorities concerned to do the needful in the matter urgently to ensure speedy disposal of cases if the people’s faith in the judiciary is to remain” (See: (2007) 11 SCC 37). The Supreme Court once again warned that “many people have started thinking that justice will not be done in the courts due to the delays in court proceedings. This is indeed an alarming state of affairs” (See: (2007) 14 SCC 452).

The top priority must be to find effective ways and means in bringing down the pendency so that people at large and litigants in particular are assured of a proper and prompt justice delivery system.

“To none shall we deny justice
To none shall we delay justice
To none shall we sell justice”

The ‘Magna Carta’ in which these words are found was repealed by an official Act of Parliament, yet it must reverberate in our zeal for justice and must not be forgotten in the year-long festivities to celebrate the High Court’s 150th year.

(Justice K. Chandru is a Judge of the Madras High Court.)

http://www.thehindu.com/opinion/lead/article2357419.ece?homepage=true

Campaign Mode Approach to Reduce Pendency in Courts

Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice  IN Calcutta on the campaign mode approach to reduce pendency in couts:

Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.”  He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread an then go out in search of doctors.

At a Joint Conference  of Chief Ministers and Chief Justices held on August 16, 2009, the Hon’ble Prime Minister observed :

Judicial review has breached unprecedented frontiers.  Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines, which generate surprise globally and concern at home.  The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.

The judiciary realised that one of the drawbacks of the justice delivery system was denial to the common man, of access to justice.  This truism was recognised by the judiciary and concern of the Courts in that behalf was reflected in Bihar Legal Support Society vs Chief Justice of India (1986 (4) SCC 767) where the Court said:

….that the weaker section of Indian Humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy.  They are not aware of the rights and benefits conferred upon them by the Constitution and the law.  On account o their socially and economically disadvantageous position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.

To quote from the figures compiled by the Supreme court, a total of 42,17,903 number of cases were pending in the High Courts as on 30th September, 2010 comprising of 33,36,256 Civil Cases and 8,81,647 Criminal cases.   In the Subordinate Courts, this figure was 2,79,53,070 comprising 78,56,456 Civil Cases and 2,00,96,614 Criminal cases.  It is estimated that in some of the subordinate courts over 30-40 percent of arrears relate to petty cases and out of the total pending cases, 9% of the cases were pending for 10 years and above and 24% cases were pending for 5-10 years in both, High Court and Subordinate Courts.  Alarmed with the increasing number of pending cases, a Vision Statement was adopted in the National Consultation on Strengthening Judicary towards Reducing Pendency and Delays held on October 24-25, 2009.  The Statement contained a roadmap for improving justice delivery and legal reforms and steps to reduce pendency in Courts from the present 15 years to 3 years by 2012.  In the backdrop of this, a campaign mode approach is being launched from today the 1st July, 2011 till 31st December, 2011 to reduce pendency.    It is also the endeavour to dispose of long pending cases pertaining to senior citizens, minors, disabled and other marginalized group.

Though the target may not be reached in 2012, ongoing efforts to reduce pendency need to be given greater momentum, in view of the various measures initiated by the Government in recent times and the substantial funding made available.

Government had, in 2007 envisaged a programme under    e-Courts Project for computerization of 12000 Courts with a cost of         Rs. 441.8 Crores.  However, with the pace of time, the Project cost has also increased and the Government has now approved a revised cost of Rs. 935 Crores for the computerization of 12000 Courts by March, 2012 and another 2249 Courts by March, 2014.  West Bengal is one of the high performing States wherein we are aiming to complete the connectivity by July-August this year, ahead of the targeted time.  Citizen centric services will be available through this project and a national arrears grid will come into being.

The Law Commission of India in their 230th Report have taken a serious note of the ever mounting arrears in the Courts and have suggested the following measures to reverse the trend:

(i)   Grant of adjournments must be guided strictly by the provisions of Order 17 of the Civil Procedure Code;

(ii)   Many cases are filed on similar points and one judgment can decide a large number of cases.  Such cases should be clubbed with the help of technology and used to dispose other such cases on a priority basis;  this will substantially reduce the arrears;

 (iii)  Judges must deliver judgments within a reasonable time and in that matter, the guidelines given by the apex court in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must be scrupulously observed, both in civil and criminal cases;

 (iv) Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour;

 (v)  Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes.  The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involved complicated questions of law or interpretation of Constitution;

 (vi)  Judgments must be clear and decisive and free from ambiguity and should not generate further litigation.  Lord Macaulay’s following statement made 150 years ago must be a guiding factor:

 “Our principle is simply this –

Uniformity when you can have it,

Diversity when you must have it,

In all cases, Certainty

 (vii)  Lawyers must not resort to strike under any circumstances and must follow the decision of the Constitution Bench of the Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India reported in (2003) 2 SCC 45;

 (viii)    Judges and Lawyers, both have to change their mindsets.  Unles the mental barriers to reforms are mellowed, all doses of external remedies are bound to fail.

One must remember Gandhiji’s words “If you want to change anything, you be the change.

 During the campaign for disposal of cases, following steps need to be taken:

(a)  All Session Trials are required to be dealt with by Fast Track Courts;

(b)  All cases where the offences are compoundable are required to be disposed of on priority basis;

(c)  All Magistrates need to be directed to dispose of the cases under Motor Vehicles Act on priority basis;

(d)  A special time-bound drive to be donducted to sispose of Summary Trials under Chapter XXI of Cr.PC by the District Judges and Judicial Magistrates;

(e)  District Judges and Chief Judicial Magistrates to take up applications for withdrawal of prosecution u/s 321 of Cr.PC on priority basis;

(f)  In Courts where criminal appeals have also been given in the cases of criminal revisions pending in any court in excess of twenty five in number to be withdrawn and transferred to courts where such appeals are below twenty five in numbers.

(g) Frame Case Flow Management Rules for the Subordinate Courts.  The Rules also provide to put the cases into three different tracks, specifying time limit for each track;

Some of the High Courts have already drawn up their plans for taking up the mission mode approach for reduction in the pendency.   Their plan consists of the following measures:

(a)   Instructed Magistrates to hold Courts in Jails for disposal of petty cases involving undertrial prisoners;

(b)   Constitute Committees at District level involving District Judge, Collector, Superintendents of Police and Jails etc. for discussing the issues relating to criminal justice system;

(c)   Notify case flow management rules;

(d)   Presiding Officers of Magisterial Courts are ordered to hold Courts on Saturdays, alternatively to dispose of petty cases under the Motor Vehicle Act, NI Act, Municipal laws and other such acts.;

(e)   District & Sessions Judges have been directed to rationalize the work load in different Courts;

 (f)     Set up Morning/Evening/Shift/Holiday Courts;

 (g)   Organise Mega Lok Adalats in each District and in the High Court during the financial year 2011-12;

 (h)   Incorporate new Rules for providing faster service of process, hearing on day to day basis, automatic termination of stay after the expiry of two months in cases seeking challenge/stay/transfer the lower court proceedings.

To facilitate the momentum for reduction in pendency, Government of India has made substantial funding.  Rs. 5000 Crores have been awarded by the 13th Finance Commission for utilisation during the next 5 years for improving the justice delivery system through setting up of morning/evening/shift courts, Lok Adalats, Mediation, etc.   Funds for infrastructural development have increased five fold in the current Budget to Rs. 500 Crores.

The Gram Nyayalayas Act, 2008 was enacted by the Government on 2nd October, 2009 to provide for establishment of Gram Nyayalayas at the grass root level to provide access to justice at the doorsteps of the citizens with a view to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities.  A sum of Rs. 150 Crores has been provided in the current financial year for starting the Gram Nyayalayas.  States like Madhya Pradesh, Maharashtra, Rajasthan and Orissa have already notified and operationalised them.  The Gram Nyayalayas have been envisages to grant relief to the litigants within six months of the registration of cases.

While Government of India is providing sufficient funds for speedy disposal of cases and reduction in the pendency, unless the vacancies are filled up, both in the Higher and Subordinate Judiciary, all efforts being made would not be able to bring about desired fruits.  I would, therefore, urge the Chief Justices to embark upon a plan to fill up as many vacancies in the High Court and the Subordinate Courts during this campaign mode approach for reduction in pendency.

I would like this opportunity to thank the Chief Justices and the State Governments in their approach for the Mis sion Mode Programme for Delivery of Justice and Legal Reforms which commenced on 26th January, 2010 with a view to reduce congestion in jails.   The leadership rendered by all the Chief Justices for realizing the goal and to take further steps in this regard, resulted in deciding cases of over 7.10 lakhs undertrials till 31.5.2011.  This must have brought cheers to as many families also.  I hope that the interest and the leadership shown for the cases of the undertrials by the Chief Justices and the State Governments would be carried forward during this campaign for reduction of overall pendency in the Courts which would help in mitigating the miseries of the litigants and their families.”

Advocates Training Scheme Inaugurated

Rajiv Gandhi Advocates  Training  Scheme  was inaugurated in the National Law University Delhi today.   Minister of Law & Justice Dr. M. Veerappa  MoilyChief Minister of Delhi Smt. Sheila Dikshit and the Chief Justice of Delhi High Court and Chancellor of National Law University Delhi Mr. Justice Dipak Misra were present on the occasion.

Presiding over the  function, the  Minister of Law & Justice said “Globalization of law includes global connections, global interdependence, global information, global finance, global governance and global rights. Legal profession in the 21st Century must focus on the rapid changes in legal education and the legal profession that are taking place throughout the world, the phenomenon that is often referred to as the globalization of legal profession.”

The primary purpose behind the development of the lawyers’ training program is to standardize the training of future generations of lawyers in the globalization era. Achieving this goal is critical to ensure that lawyers’ attain a minimum level of legal knowledge and advocacy skills before they take on the responsibilities associated with representing clients before the courts. Additionally, the training plan has been designed to increase public confidence in the legal system by setting clear ethical standards for the practice of law and training future lawyers about their ethical obligations to society and the role they play in promoting the integrity of the legal system as a whole. Training programme helps in enhancing following skills of the advocate trainees.

Builds better communications skills.

Develops hidden talent.

Ensures consistent quality.

Provides greater focus.

Produces more effective/productive efforts.

Clarifies the concept of marketing as a business process.

With respect to the roles of the justice system, the legal profession and the people in this Herculean effort at transformation, the justice system is expected to operate so as to eliminate injustice from society.  The Article 39-A of the Constitution of India mandates that the state shall provide “by suitable legislation or schemes or in any other way” to ensure that opportunities for seeking justice are not denied to any citizen “by reason economic or other disabilities”. It imposes a duty on the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity and in particular State shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.  Access to Justice is recognised as a fundamental right.  An effective justice delivery system requires that (i) justice be made available at the door step of people and (ii) we should have talented, dedicated and qualified legal professionals who serve at the grass root level. So far as providing justice at the doorstep is concerned, we have courts at the District and Taluka levels. Now, we also have ‘Gram Nyayalaya’ at village and intermediate level.  There is no dearth of talented and dedicated law graduates at grass root level but there is no motivation and encouragement for them to come forward and stay in legal profession at district, Taluka and village level.  Result is, despite their ability most of these young lawyers are not getting proper opportunity and exposure in the profession.  At the end, they become brief less lawyer.  There has been a far reaching cry to give proper professional training to the Advocates so that they not only become good lawyers but also are competent to compete with high profile law firms.

The Supreme Court in the case of State of Maharashtra Vs. Manubhai Pragaji Vashi, (1995) 5SCC 730 has observed that the need for a continuing and well-organised legal education, is absolutely essential reckoning the new trends in the world order, to need the ever-growing challenges.  The scheme envisages selection of 10 young practicing advocates from each state of India, every year for being imparted professional training.

 A preference shall be given to those candidates who belong to SC/ST, OBC, Woman and Physically Handicap. The National Law University, Delhi will implement the scheme at the national level by providing the Advocates one month training in its campus and the Advocates will be placed with a Senior/leading Advocate at their respective places for one month training.

This training programme will cover:

ADR Mechanism for settlement of Disputes;

Plea bargaining and its importance;

How to use Information Technology and Communication in court proceedings? Advantages of these tools in court proceedings;

Art of cross – examination;

How to present the case and argument before the Court?

Provisions contained in “Hague Convention on the Service abroad of Judicial & Extra Judicial Documents in Civil and Commercial Matters” – Mechanism of service of summons and other judicial documents issued by Indian court to persons residing in foreign territory and vice versa.

Effect and advantages of having Mutual Legal Assistance Treaty in civil and commercial matter; and in criminal matter, Extradition Treaty and Treaty on transfer of convicted persons with foreign countries.

Intellectual Property laws including ‘Competition Law’ – Their use, importance and relevance in modern day business;

Cyber Laws – How to deal with cyber crimes and related issues;

Specific legislations useful in day to day life viz. the Domestic Violence Act, 2005, the Protection of Child Rights Act, 2005, The Dowry Prohibition Act, 1963, Gram Nyayalaya Act, 2009 etc.

Lawyers can practise in all courts soon: Veerappa Moily

J VENKATESAN

Section 30 of Advocates Act will be notified 50 years after Act came into force

Fifty years after the Advocates Act, 1961, was enacted, the Centre has decided to notify Section 30 of this Act to enable advocates to practise as a matter of right in all courts, tribunals or any quasi-judicial authority.

This provision was not notified when the Act came into force.

Union Law Minister Veerappa Moily told The Hindu that the long-pending demands of the lawyers had been conceded, and he had passed appropriate orders for notifying this Section early next week.

Section 30 of the Advocates Act says: “Right of advocates to practice: Subject to the provisions of this Act, every advocate shall be entitled as of right to practise throughout the territories to which this Act extends; in all courts including the Supreme Court; before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.”

Mr. Moily said: “I traced the file relating to this provision. For some reasons this Section remained in the Statute without being notified. I decided to notify this Section and signed necessary orders. The notification is expected to be issued either on June 7 or 8.”

Expressing satisfaction over the progress in the implementation of ‘vision statement’ launched in October 2009, he said under the programme to be launched from July 1, about 40 per cent of the petty cases pending in various courts were to be disposed of in six months through Lok Adalats and morning/evening courts.

He said the 13th Finance Commission provided Rs. 5,000 crore for support to the judiciary and the first instalment of Rs. 1,000 crore had already been released for 2010-2011. The Finance Commission envisaged that all subordinate courts could have extended court hours by hiring retired judges or giving allowances to incumbent judges to dispose of petty cases.

Such courts, he said, were to be established at a cost of Rs. 3.5 lakh each and they were expected to dispose of 225 lakh minor cases annually. In addition Lok Adalats were expected to dispose of 15 lakh a year and by 2015, a total of 75 lakh cases would be disposed of by Lok Adalats.

Mr. Moily said he had written to the Chief Justices of various High Courts underlining the need for reducing the pendency of cases in courts from 15 to three years by 2012. He said he had asked the CJs to launch the campaign from July by fixing targets and types of cases for disposal.

He had suggested to them to follow summary procedure as allowed by law, plea bargaining and compounding of cases to reduce the caseload in courts.

On the progress in computerisation of courts, he said: “The government is implementing a Central sector scheme for computerisation of the District and subordinate courts [e-courts project] in the country and for upgradation of the Information and Communication Technology infrastructure of the Supreme Court and High Courts including video-conferencing facilities.”

National Legal E-Library

A representation of the Lion Capital of Ashoka...

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The ‘National Legal E-Library’ project of the Government is to be dedicated o the nation on 15 August 2011. Dr. M Veerappa Moily, the Minister of Law & Justice had proposed the need for the formulation of a ‘National Legal e-library’ for students and practitioners of Law on 6 December 2009, during his meeting with the vice chancellors of Law University and Colleges across India.

The scope of this program is creation and management of the ‘National Legal e-library’ for 933 schools in India, Bar Associations, Government Legal departments etc. and meet the needs of academic librarians, students, faculty and young practitioners. It aims to provide a practitioners view and a comprehensive understanding of core subject areas of law.

Technology tools that make the concept of E-Library indispensable:

EASY ACCESS : Campus wide access using IP Authentication.

RESULTS CLUSTERING : Familiarises new users with different classes of content by providing an instant, multi faceted analysis of distribution of hits in each result set.

FLEXIBLE DISPLAY AND OUTPUT OPTIONS : Inclusion of full featured tools that allow for printing, emailing and saving.

INTEROPERABILITY : Works with systems you use to manage your electronic holdings through e-journals systems, Article linking Federated search/Metasearch & Citation export to Reference Works.

SMARTINDEXING TECHNOLOGY : Helps users reach the information they need by applying controlled vocabulary terms for several different taxonomies.

POWERFUL SOURCE SELECTION : Identify sources by type, language, topic, geography and other facets.

The project is likely to be implemented in three phases. In the first phase two comprehensive research platforms will be implemented across all law schools in India. In the second phase the services of the comprehensive research platform will be extended to the entire practitioner universe. Further, e-filing and Practice Management will be extended for all the courts in India in this phase. The third phase focuses on sustained usability and development of a comprehensive education development platform. This phase aims at creating a robust system of legal skill enhancement and development.

Recent Initiatives of the Government for Justice Delivery and Legal Reforms

The Government is taking various initiatives to improve justice delivery system in the country and for improving justice delivery and legal reforms and steps to reduce pendency in courts from 15 to 3 years by 2012. These are as under:

National Mission for Justice Delivery and Legal Reforms: The Government has ‘in principle’ approved setting up of National Mission for Justice Delivery and Legal Reforms. The National Mission would help implementing the two major goals of

(i) increasing access by reducing delays and arrears in the system

(ii) enhancing accountability at all levels through structural changes and setting performance standards and facilitating enhancement of capacities for achieving such performance standards.

The Law Minister has on 28th April 2011 personally written to the Chief Justice of the Supreme Court and the High Courts on the launching of a campaign mode approach for pendency reduction and filling up of vacancies in Subordinate & High Courts. The campaign will be from June-December, 2011 and after a review, will be extended for another 6 months.

Judicial Standards and Accountability Bill, 2010: To bring about greater transparency and accountability in the higher judiciary, the Government has introduced a Bill in the Parliament to lay down judicial standards, to enable declaration of assets and liabilities by the Judges, and to establish a mechanism to enable investigation and follow-up action into complaints against judges. The Bill has been referred to the Standing Committee on 1st December, 2010 and is presently under its consideration.

13th Finance Commission grant: With the objective of improving justice delivery, the Thirteenth Finance Commission (TFC) has recommended a grant of Rs. 5000 crore to be utilized over a period of five years up to 2010-2015. An amount of Rs.1000 crore has been released to State Governments in the year 2010-11. This grant is aimed at providing support to improve judicial outcomes. Many States have already formulated State Litigation Policies as per the requirement for further release of TFC grant.

National Litigation Policy : The Government has already announced a National Litigation Policy effective from 1st July, 2010 to to reduce government litigation in Courts so that valuable court time would be spent in resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3 years.

ICT enablement of courts: The Government has implemented a central sector scheme for computerization of the District and Subordinate Courts (e-Courts project) in the country and for upgradation of the ICT infrastructure of the Supreme Court and the High Courts, at a cost of Rs. 935 crore for the first phase which will connect 14,249 courts in the country including video conferencing facilities.

Access to Justice for the marginalized section: Provision of legal aid enables the marginalized sections of the society in accessing justice. To strengthen Legal aid authorities a sum of Rs 200 crores had been provided under the TFC grants. The mission launched for release of under trial prisoners last year had appreciable results and is continuing. In the period 26 January 2010 to 31 May 2011, 562379 under trials have been released on bail, 77940 have been discharged, 68744 convicted, adding to a total of 709081 cases that have been disposed off. Software to trace cases of under trials by courts is also under consideration for integration into the e-courts software.

Gram Nyayalayas : The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram Nyayalayas, a new tier of courts, at the grass-root level for the purpose of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen. The Act came into force on 2 October 2009 and enables the State Governments to establish Gram Nyayalayas at Intermediate Panchayat levels.  The Central Government provides assistance to the State Governments for establishment of Gram Nyayalayas(Rs. 18 lakhs/court) and Rs. 3.20 lakhs per court per annum for the first 3 years towards recurring expenses. About 144 Gram Nyaylalays have been set up(notified) in the States of Madhya Pradesh (89), Rajasthan (45), Orissa (1), Maharashtra (9), till date of which 47 are operational – 40 in Madhya Pradesh, 1 in Orissa, and 6 in Maharashtra. Out of the budgeted Rs. 150 crores for Gram Nyayalayas, Rs. 20.92 crores have been disbursed to the 4 states which have notified the Nyayalayas.

Family Courts: The Government has pursued with the States the matter of setting up of Family Courts, providing 50% of the cost of construction and Rs 5 lakh annually. 211 such courts have been set up in 23 states.

Increase in the age of retirement of Judges of High Courts: The Government has introduced ‘the Constitution (One Hundred and Fourteenth) Amendment Bill, 2010’ in the Lok Sabha on 25th August, 2010 for increasing the age of retirement of Judges of the High Courts from 62 to 65 years. It aims at retaining the judges for three more years which would avoid occurrence of new vacancies on account of superannuation and result in continuance of judges to clear the backlog of cases in the High Courts. The Bill has been examined by the Department related Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice is to be slated for discussion in the Parliament.

Infrastructure Development at Subordinate courts: In the financial year 2011-12, the allocation for the Centrally Sponsored Scheme on Infrastructure Development has been increased 5 folds from Rs.100 crores to Rs. 500 crores.

Setting up of a Legal e-Library: The Government is finalizing the setting up a ‘National Legal e-library’ focusing on 933 law schools in India. ,It is expected to benefit the students and practitioners of Law. It is proposed to get operationalised on 15 August 2011.

Rajiv Gandhi Advocate’s Training Scheme: The Rajiv Gandhi Adhivakta Prashikshan Yojna to be launched on 27June 2011, will select about 10 practicing advocates from each state and impart a two-month long professional training by a National Law School/College – to them and encourage them to to serve the need of law professionals at the grass root level.

Creation of All India Judicial services: The proposed to set up an All India Judicial Service is awaiting Cabinet approval. This service is expected to attract the best of talent to the judiciary.

Comprehensive Electoral Reforms:

• The Government has held 6 Regional Consultation on Electoral Reforms. The seventh is scheduled on 12 June 2011 in Guwahati to be followed By the National Consultation in New Delhi on 2-3 July 2011. Following this, Comprehensive Amendments will be brought about to the Electoral System.

• The Government has also passed legislation and has enabled NRI Voting.

• The Maximum limits of Election Expenses have been increased for both Parliament and Assembly Elections.