Author: Lavanya KS, IV year of B.A.,LL.B from Chennai Dr.Ambedkar Government law college, pudupakkam.
Abstract
There is a lot of pendency of cases in the judiciary and judicial vacancy. The Chief Justice of India also pointed out that a major backlog of criminal cases in Allahabad high court and 1.83 lakh pending criminal appeals. Out of 160 strengths, there are 68 vacancies. Not only in Allahabad, but many states in India also have vacancies in the judiciary. In the judiciary women's vacancies and appointments are short. In the past, women were also oppressed by patriarchal society. Now Chief Justice of India brings 50% reservations for women in all levels of the judiciary. There is also a gender imbalance in the judiciary. So to overcome this gender imbalance and to reduce the pendency of cases in the judicial system CJI backs a 50% quota for women in the judiciary.
Keywords: vacancy, justice, pendency cases, women reservation, merit, and judiciary system.
Background
The appointment of judges was decided by the third judge's case. In the second judge's case, they introduced the collegium and 1+3 formula. After that only on the 3rd judge's case, they bring the 1+4 formula. If somebody appoints at the high court level, the chief justice of that high court and four senior-most judges of that high court recommend a name to the Supreme Court. Then the Supreme Court will either accept or reject that name. The collegium consists of the chief justice of India and four senior-most judges. If the collegium accepts that name and sends it to the executive who is President of India. Here the President has two options
He can refer to the inquiry on that person.
He sends his name back to the Supreme Court for reconsideration. After reconsideration by the Supreme Court, the president needs to accept that person because the executive head had 'One Revisionary Power'.
As per the report, in 2018 there are 2.92 crores pending cases and it raises to 3.72 crores in 2021.
New ideas for enhancing judiciary
There is a lot of discrimination against women not only in the field of the judiciary but also in all fields. The women representation in the lower level of the judiciary is 30% and in the high court & supreme court is 11%-12%. The gender imbalance means a disproportionate number of women lawyers, sexual favors for litigations, and also a lack of supportive infrastructure like lack of toilets, maternity leave, lack of washrooms, etc. There are outright biases against women in the appointment and promotion process. As of now, the collegium is appointed through an internal process.
Why do they have to give reservations for women in the Judiciary?
There are many gender-sensitive issues like the Sabarimala issue in which the bench consists of five-justice in that only one was a woman judge. It is a women issue case and women know more about women. It is a gender sensitivity issue.
As in our Constitution of India, local self-government gives 33% reservations for women. When we retain at the local level then why do we not have similar thoughts in the judiciary?
Inclusive government
It includes all sections like SC, ST, OBC, Minorities, and ethically different races as well added to this and we have to include more women from multiple states in India. One of the arguments for reservation is 'If we do not have a supreme court judge as women it fails to be an inclusive government. Lack of women in the court leads to court legitimacy and equality of opportunity for women to give in the legal profession.
Goodnesses of women in the judiciary
Justice Leela Seth who is a member of the Law Commission Panel recommended amending the Hindu Succession Act, 1956 where daughters' inheritance right over the ancestral property also has to be equal. It is done because the women in the panel speak about inheritance and the amendment made in Hindu Succession Act, 1956.
She was also a part of Justice's former committee appointed in 2012. This committee was formed after the heinous gang rape in Delhi. Since she was part of this committee and gave rise to recommendations like speedy trial and more punishment for sexual offenses.
To understand the gender sensitivity issue women should be part of the judiciary panel, bench, and committee. We need a reservation because there is an inherent bias towards women and not providing equal opportunity.
One set of arguments contended for reservations and another set of arguments asserted for instead of the collegium process we should give merit basis equal opportunity to all. In a competitive mode like UPSC, we have to choose the high court and Supreme Court judges. There should be no need for reservations instead the government can create an equal platform and merit should be in soul criteria. So reservations not given to women is another set of arguments.
Grease the wheels of justice
There is a pendency of cases more than 40% decided after three years in India when compared to other countries 1% of cases decided after three years.
Concerns in Judicial Process
The victims are not provided with justice due to long delay execution and passing of judgments. The famous quote 'Justice delayed is Justice denied' is a backdrop. If we want to revamp the judicial system and to deliver justice to the poor and marginalized sector. The government and the Supreme Court had two important parameters
Fill the vacancies
Use of technology
In 2005 they came up with an e-committee of the Supreme Court to implement the important developments and principles established to follow. If we use technology there should be the development of algorithms which means to decide automatically.
Case listing, case allocation, and adjournments not made based on first come first serve. Is it done based on reputation and how rich the litigant is? Yes, it's done on that basis. So it should be rooted out. If the petitioner wants to pay the court fees it's not available online. So now due to pandemics Virtual hearings are going and developing a hybrid model. The pendency cases will be done as soon as possible and continue the virtual hearing and offline physical hearing.
Problems of collegium system
In recent appointments and recommendations made by the collegium and changes needed for the current collegium system. The problems are
Opacity of process
Lack of scrutiny of decisions of the collegium
Concept of collegium itself
In 2013 Namit Sharma Case - Appointment of members of Central Information Commission and there are qualification criteria. The members are chief information commissioners and the information commissioners are experts in all fields. In this case, the Supreme Court clearly stated that the government has to give clear reasons for the fact to mention in these eminent. This diversity is not seen in women judges, SC, ST, OBC judges.
Article 124(2) of the Indian Constitution says every judge of the supreme court shall be appointed by the President after consultation with judges of the Supreme Court and high courts in states. There is no power to the high court in deciding judges. In the second and third judges' cases, there is no rewriting of powers of the high court. High court judges are completely dependent on collegium of the Supreme Court
Conclusion
The National Judicial Appointment Commission wants to be more transparent and via the involvement of the Law Minister. We need a Memorandum of Procedure because it not only maintains procedure but is also more transparent. So it will reduce the pendency of cases in the judiciary by filling up the vacancies. Furthermore, to cease the prejudice against women in all fields the judiciary steps in for destroying that bias by providing reservations for women in the judiciary.
"TRUE PEACE IS NOT MERELY THE ABSENCE OF TENSION; IT IS THE PRESENCE OF JUSTICE"