WHY focus on Rule of Law?
The foremost purpose of a Government is to maintain rule of law in society. While supremacy of law is guaranteed constitutionally, there are serious shortcomings in practice. Rule of law in the everyday lives of ordinary citizens means three things – maintenance of public order with uniform application of penal laws, fair and equitable settlement of disputes, and compliance with due process in protection of constitutional liberties. India’s appalling failure in rule of law is starkly reflected in three facts:
- Large pendency of cases and inordinate delays across all levels of judiciary.
- Criminal cases outnumbering civil cases, indicating that most civil disputes in a developing economy are not reaching the court.
- The lowest conviction rate among major economies.
Robust institutions of rule of law are the need of the hour. Increased alienation and loss of social controls in an urbanised society will lead to a rise in crime. With increased commercial activity, disputes are bound to rise in a growing economy. In the absence of an effective and speedy mechanism to resolve such disputes through courts, people are likely to resort to extra-judicial means fostering greater corruption,organised crime and violence.
HOW can we reform?
Reforms are required in all four pillars of Rule of Law.
Police
Custodial deaths, unsolved and shoddy investigations, and abuse of power have generated an atmosphere of fear and mistrust. However, the police operate under severe handicaps owing to institutional design. The following issues require attention –
- India has one of the lowest police to population ratios in the world. A massive effort is required by state governments to enhance strength and improve training to cater to specialisation, coordination with prosecution and judiciary, and upskilling in service.
- Political control of crime investigation has rendered the police ineffective, unaccountable and untrustworthy. An independent crime investigation wing, separate from law and order police, must be entrusted with investigation of all offences above a certain threshold.
- In order to improve public confidence in the police, community policing can be adopted. It has proven to not only enhance the general feeling of security but to also deter criminal activity.
- India’s forensic infrastructure is grossly inadequate leading to ineffective crime investigation. There is an urgent need to scale up forensic facilities nation-wide in a multi-tier framework, based on population, crime rate and the type of case load in a given area.
Prosecution
Prosecution in India is weak, overburdened and ineffective. There is no coordination between the police and the prosecution to ensure that there are no gaps in investigation and that the case is fit for trial. The following steps must be taken –
- Massive increase in the number of prosecutors by nearly 7.5 times to reach global norms.
- An independent District Attorney system where a DA, drawn from the judiciary, supervises all investigations and prosecutions in each district.
Procedural Laws
Many of the challenges in our justice system are rooted in outdated procedural laws. Both criminal and civil procedure need an overhaul. Some major changes required are –
- Criminal Procedural Reforms – based on the Malimath Committee Recommendations
Adoption of elements of an inquisitorial system, statements and confessions recorded by a police officer to be made admissible in court, perjury to be made a more serious offence, recognition of victim’s rights and adoption of summary procedures for offences below a certain threshold.
- Civil Procedure
Adoption of case management practices based on international experience and periodic revision of pecuniary jurisdictions.
Judiciary
With the lowest judge-to-population ratio among major countries, Indian courts are crumbling under the enormous weight of mounting cases. There is an urgent need to make justice speedy, accessible and inexpensive while also attracting the best talent into the judiciary. The following measures will address the challenges:
- Similar to Gram Nyayalayas, local courts should be established in urban areas to deal with small disputes and minor offences with simple procedures.
- All India Judicial Services should be introduced to attract the best legal talent into the judiciary.
- One-time drive to clear the backlog of cases in a fast track mode in both Trial Courts (assisted by local courts) and High Courts (Article 224A).
WHAT has FDR done so far?
FDR has made notable interventions towards improving the rule of law in the country. They include:
Gram Nyayalayas Act, 2008
FDR’s advocacy led to the enactment of the Act, providing for rural local courts for speedy justice.
The 99th Constitutional Amendment – National Judicial Appointments Commission
FDR’s research and advocacy led to bipartisan support for the Amendment, bringing in transparent and accountable appointment mechanisms to the higher judiciary.
Round Table on Judicial Transparency and Accountability, 2016
Organised in collaboration with the Administrative Staff College India, the roundtable focused on the need to ensure transparency and accountability in the judiciary.
Conference on Rule of Law, Indian Democracy at Work – 2nd Edition
The international conference covered comprehensive reform of the Indian Rule of Law institutions, involving in-depth discussion with relevant stakeholders.