Difficulties faces by the Indian Judicial System and Judiciary
India is a country with diverse cultures. It not only has a long tradition of caste legal system represented by the Code of Manu, but also has been invaded and influenced by Western legal culture for a long time. Western concepts of constitutionalism, human rights, democracy, and the rule of law are profound. Rooted in Indian rule of law and reality. India has bred its own splendid Hindu legal culture in its long history. It once spread to East Asia, Southeast Asia and other places with her religion. At that time, the “Indian legal system” occupied a place in the three major oriental legal cultures.
After becoming a British colony in modern times, British rulers transplanted a large number of European political and legal models. India realized the integration of the two in the constant conflict between foreign rule of law culture and local law, and finally formed the unique rule of law in India. mode. However, the inefficiency of justice in India today is unimaginable as a foreigner.
What is the problem of Case backlog, cry for addendum in Indian Judiciary?
According to a report by The Times of India in April this year, the Chief Justice of the Supreme Court of India TS Thakur choked on several occasions at a meeting attended by Prime Minister Modi, calling for the hiring of more judges to resolve the long-stacked cases.
India There are currently 30 million cases pending in the courts, and there is a serious shortage of judge resources, especially the judges in the basic courts.
There are 21,000 judges in courts across India. 30 years ago, the government’s Law Committee recommended that at least the number of cases in India is required. 40,000 judges.
There are 380,000 pending cases in the High Court alone, and 60,000 in the Supreme Court. Judge VV Rao of Andhra Pradesh believes that it will take at least 320 years to complete more than 30 million cases at the current rate.
Is judicial budget Insufficient in Indian Judiciary?
The state and central governments blame each other for their judicial efficiency in handling these rapidly increasing cases. This is not the first time the Chief Justice has talked about the government’s indifference to the judiciary.
The government believes that the judiciary is a department that is not economically effective among many departments, and the budget for the judiciary is not even as good as the national budget 0.5%. Normally, at least 0.11% of the fiscal budget is needed for legal and judicial construction during 2014-2015.
According to the opinions of the Legal Committee and the Standing Committee of the Parliament, there should be at least 50 judges for 1 million people, while India’s current situation is only 30.
Cases are skyrocketing and infrastructure is scarce
India’s judicial system is one of the largest in the world. The number of judges has increased by 6 times in the past 30 years, but it is still weak in the case of a 12-fold increase in the number of cases.
The serious lack of court infrastructure construction is also one of the reasons. In addition to the insufficient number of judges in the basic courts, most of the court office buildings are rented buildings. The application for nearly 7,000 court office buildings is pending processing by the state government.
Is there no strict trial limit in the Indian Court System?
India’s court system is incompatible with the rule of law from time to time: litigation procedures are particularly delayed, and it is not surprising that a case has not been closed after 40 years.
The main reason is that the Indian judicial process does not strictly limit the trial limits of judges. In addition, the number of judges is small. Judges go to work at 10 o’clock and leave work at 4 o’clock every day.
There is also lunch time in between, and Indian holidays are too numerous. Seriously squeezed. People’s low tolerance and economic conditions also determine the disparity between the plaintiff and the defendant.
The rich party can allow the case to continue to plead, appeal, and send back for retrial to extend the litigation process indefinitely. Even in criminal cases, criminals can cause problems.
The lengthy trial process and evasion of sanctions are often at a disadvantage compared to poor people who have no time to attend courts and various debate meetings.
In contrast, China’s Civil Procedure Law and Criminal Procedure Law both stipulate corresponding trial limits. In general civil cases, the trial period of the first instance judge shall not exceed 6 months, and the second instance shall not exceed 3 months.
The approval procedure of higher authorities is required to limit the limit, and it is even more difficult to apply for extension of the criminal case limit.
Chinese judges have the right to decide on a written trial of the second instance, which greatly shortens the trial time and is not an easy task to initiate a retrial.
Has Lawyers’ deliberate delay become commonplace in India?
In Indian courts, often a small issue requires at least one hour of endless debate, and a small application requires six months of approval.
In the courtroom you will see a scene like this: One party is talking, the other is drowsy, and the judge looks tired. If in a Chinese court, one party’s lawyer gets too long and digresses, the judge will immediately pick it back.
The Chinese judges will set out the main points and key points of the dispute, so that the lawyers of both parties can focus on improving the efficiency of the trial. 90% of first-instance cases can be settled in a single round of trial in China.
In India, the real situation is like this. It is not that the judge does not want to close the case, but the lawyers representing both parties. Some lawyers are often poor in work ability and lack professional ethics.
There are many perjuryers, because Indian law does not have strict disciplinary measures against lawyers for these deliberate delays.
If a lawyer does not want to close the case, there are endless reasons. Arbitrary reasons such as attending a cousin’s wedding can delay the hearing of the judge. The next hearing may be half a year or a year later.
In contrast to the relationship between Chinese judges and lawyers, unless the lawyer has definite evidence to prove that he is ill or fails to appear in court due to force majeure, the judge will strictly make a default judgment, and traffic jams cannot be a reason for the lawyer to be late.
In addition, a small case in India is often divided into many parts to be tried separately, and the execution of the judgment is not serious. The integrity of the judge has also become a major problem in the Indian judiciary.
The most prominent problem is the inability of the court to deal with it. Disputes in court.
The Indian courts are divided into three levels:
- District Courts
- High Courts
- Supreme court
Unlike China’s second-instance final instance, India’s trial-level system is a third-instance final instance system.
The basic courts hear facts, procedures, and legal issues, while the High Court and the Supreme Court only decide procedures and legal issues.
The appeal time varies from one month to three months depending on the case. You can apply for an extension of the appeal period with simple reasons.
Even if it is delayed by one month, the court will accept it as long as a suitable reason is given. This is to a certain extent. The proceedings have been extended.
If there is no appeal within 15 days except for the cause of force majeure, the right to appeal will be lost.
At present, the Indian government is also aware of the inefficiency of the courts and the conflict of social values. It is also committed to improving judicial efficiency in large cities.
Judges have gradually begun to put pressure on lawyers’ deliberate delays and adopt fines to reduce such behaviors. It ranges from tens of thousands of rupees to a few pulls.
What are People’s Court (Lok Adalats)?
The efficiency of Indian courts in handling cases has long aroused public outrage from the people of the country. In 2010, in order to solve the problem of slow case handling, the Indian government took full advantage of the “People’s Courts” established in 1987 in accordance with the Legal Service Act.
Judges completed more than 100,000 cases in one day, and these judges quickly resolved these old cases at a rate of 10,000 cases per hour.
The public outrage caused by the backlog has forced the government to take a sharp cut to the chaos.
“People’s courts” accept cases that have been accumulated by courts within their own jurisdiction over a long period of time and can be resolved through mediation and compromise.
The “people’s court” is composed of three members. The judge of the court or the retired judge is the presiding judge, and the other two members are generally lawyers and social workers. There is no need to pay litigation fees.
If the parties have already paid litigation fees in regular courts, However, in the case of a “people’s court”, the paid litigation fees will be refunded.
The advantage of the “People’s Court” in fast decision making is also destined to be unable to strictly abide by the relevant provisions of the Procedure Law and the Evidence Act.
The prerequisite for submitting the dispute to the “People’s Court” is that the parties to the dispute agree to reach a final settlement. The judgment of the court is binding on both parties and can be executed through legal procedures.
At that time, people were not allowed to appeal against the court’s judgment, that is, the first instance is final. The court is particularly efficient in adjudicating and enforcing property disputes.
Cases such as inheritance disputes, damage compensation, and divorce can be resolved quickly in the court.
At present, the number of lawsuits in India has doubled, and the court system is also under tremendous pressure. If there is a mechanism to make advance rulings before going to the courts, many cases can be resolved before the courts initiate litigation, and the burden on the courts will be greatly reduced.
Except for some criminal cases that cannot be resolved through mediation, almost all cases can be handled in “people’s courts.” If both parties involved in the case are unwilling to endure the torment of the long trial process, then the case can be submitted to the “people’s court” for quick resolution.
Although the “people’s court” has received a lot of criticism for its way of adjudicating cases, it did play a role in resolving backlog cases.
What is SAT (Securities Appellate Tribunal)?
In addition to talking about people’s courts that can quickly resolve disputes, investing in the Indian securities market has also become a hot spot for foreign investors this year. How to protect the rights and interests of investors has also become an issue of concern to everyone.
After independence, India’s Bombay Stock Exchange (BSE) became the oldest stock exchange in Asia. Since British rulers and Indian businessmen introduced joint-stock companies into India, this form of company raised capital and resources while diversifying risks more widely to the capital market.
However, in terms of operating companies and corporate governance, these entrepreneurs have not changed their previous thinking of running a sole proprietorship or partnership with the company and regard the company as their own property. Corporate governance as a foreign concept has been localized in India for a long time.
In 1991, the Indian government issued a series of reform measures in response to the financial crisis to promote a free economy. This series of measures not only brought more business opportunities, but also updated the corporate governance model.
In order to further promote the development of the capital market, the Central Government of India reformed the SEBI (Securities and Exchange Board of India) established in 1988 to establish an entity that manages the entire securities capital market. SEBI was originally established as a consulting agency. main body.
The Securities Regulatory Commission bill passed by the Central Assembly in 1992 fully authorizes SEBI to be the “administrator” of the securities market. This bill makes it clear that SEBI is an independent statutory body and needs to submit an annual report to the legislature every year.
The purpose of establishing SEBI is to protect the interests and management of securities investors and to promote the further development of the securities market. SEBI is a regulator integrating legislation, administration and justice. This means that SEBI is not only the maker, adjudicator, and executor of capital market laws, holding considerable power.
SEBI plays a role in protecting vulnerable investors in the securities market. As an arbiter, SEBI can not only make orders on its own, but also has its own appellate body, SAT.
If the parties disagree with the decision made by SEBI or an official designated by SEBI, they can appeal to the SAT. SEBI’s judicial independence allows such cases to bypass the backlog of Indian courts and be resolved in a timely and effective manner.
What is alternative dispute resolution mechanism in India?
Prevention is the first priority, and the future troubles are eliminated. Some companies entering India are reluctant to go to Indian courts even if they suffer losses, because for companies that are efficient and eager to recover funds, going to Indian courts to go to Indian courts is pushing themselves to death. When doing business with the Indian side, you should clarify all the details of the contract text so that they have no pitfalls.
As a weaker party, foreign-funded enterprises need to clarify the methods of dispute resolution, follow the corresponding laws and regulations to draft dispute resolution clauses such as arbitration, and avoid problems such as invalid arbitration clauses in contracts. In addition to arbitration, there are other ways to resolve disputes such as negotiation and mediation.
Name: Ajay Rastogi
Educational Qualification: LLB
Profession: Advocate / Lawyer
Work Experience: 20 Years of Legal Practice
Profile Link: https://lawjc.com/members/advajayrastogi/