'Justice can't be a rush job'
Posted on February 7, 2011 | Author: Hema Rama Krishnan & T K Arun | View 305
Justice P Venkatarama Reddy was delivering advance rulings on tax dues of multinational companies when the government chose him for the top job at the Law Commission last year. Reddy and his team have taken up several studies, including one on improving the justice delivery system in the country. He argues that courts cannot give a go-by to procedures in a hurry to clear cases, but says the judiciary should be expanded as also the anti-corruption network machinery.
“There are several reasons for the delay in justice delivery. Some are within the purview of the judiciary and some are not. Better administration and management can cut delays, but use of technology or computerisation is not the answer. The process of decision-making, the appreciation of evidence and so on cannot be done in haste.
Investigation in criminal cases is hampered, especially in rural areas, due to lack infrastructure like forensic laboratories. We are governed by the rule of law. Courts need evidence and cannot convict a person based on public opinion or media trial,” says the former judge of the Supreme Court, who had upheld the death sentence of Afzal Guru convicted of conspiracy in the attack on Parliament in 2001.
India trails in the number of trial courts compared to other countries. The high court is in charge of recruitment of junior civil judges, but recruitments are often delayed. Besides, there are financial implications as states need to approve the spending on the lower judiciary. The Centre’s plan to create an all-India judicial service to recruit at least one-fourth of the district judges through a national-level exam has not passed muster with states just yet.
Should’nt the country have more fasttrack courts to dispose the huge backlog of cases? Fast-track courts need to dispose of old criminal cases involving serious charges, though high courts have also entrusted them civil cases, says Reddy. He argues that fast-tracking criminal cases against politicians is not a good idea as courts would be branded as being discriminatory.
Bunching of cases can reduce the backlog. This is done in the Supreme Court where cases are segregated on the basis of legal principles. A group of cases of a similar nature can be clubbed and judgement can be delivered in a batch. However, the scope for bunching is limited in trial courts as every case has its own character, reckons Reddy.
He says people violate law because many of them are confident that the rule of law cannot reach them. “There is no specialisation in state anti-corruption bureaus and agencies like the CBI are grossly understaffed. We need to strengthen the network of anti-corruption machinery.”
The Law Commission, set up in 1955, has given over 230 reports to the government on various subjects including the overhaul of economic laws. The amendments to the Insurance Act, proposed by the 17th Law Commission, are now awaiting passage in Parliament.
Is there a need to have a financial sector legislative reforms commission to rewrite financial sector laws? Reddy’s reply is guarded. “The law commission can do the job. We have an expert from the financial sector and can induct more experts as members. However, it is upto the government to take a decision,” he says.
The former chairman of the authority for advance rulings is clear that retrospective legislation should be avoided as far as possible. The government has made several amendments in the Income Tax Act with retrospective effect. A crucial one was in 1997, after the government saw a goldmine in cross-border M&A deals involving Indian assets. Law was amended retrospectively to ensure that the onus of paying capital gains tax on an acquisition in India rests with the buyer. Is there a case, for instance, to impose a capital gains tax on telcos that sold their shares to foreign partners at a much higher valuation? “We need to look at retrospective legislation in a larger context of what I mentioned earlier,” says Reddy.
The quintessential lawyer signs off with sage advice. “There are so many actors in the judiciary. A disciplined and well-equipped bar is an asset to the judiciary. The quality of disposal of cases is as essential as the speed of disposal. We need more judges. they should be competent. Reforms should begin with improving the quality of legal education. After all, the character of law schools determine the quality of our judiciary.”
Justice P Venkatarama Reddy