Essay on INDIAN JUDICIARY

English_Master February 12, 2016 No Comments

INDIAN JUDICIARY 

The Supreme Court of India is the highest court of law; the entire judicial system of the country is controlled by it. Article 124 of the Constitution provides for the establishment and the composition of the Supreme Court. Articles 131 to 140 deal with the powers of the Supreme Court.

The Supreme Court of India has three kinds of jurisdiction

(i) Original jurisdiction   (ii) Appellate jurisdiction

(iii) Advisory jurisdiction

Under Article 131 of the Constitution, the Supreme Court has original jurisdiction in any dispute arising between Union and one or more States and between two or more states. Such a dispute should, however, involve some question of law or fact on which the existence or extent of legal rights depends.

It has also got original jurisdiction in cases relating to violation of fundamental rights.

Under Article 133 and 134, an appeal may lie to the Supreme Court in any Civil or criminal proceedings of a High Court. The advisory function of the Supreme Court is also very important. If there arises any ambiguity regarding the interpretation of a clause of the Constitution or certain constitutional problem arises, the President can refer the same to the Supreme Court for its expert opinion.

The Supreme Court of India is a court of record which means that the records of its decisions and proceedings are preserved and published. The decisions of the Supreme Court are binding on all the courts of India. The Supreme Court also has powers to review its own judgment or order. The Supreme Court of India is the highest judiciary body, responsible to ensure justice to all. The Supreme Court under Article 142 of the Constitution has the constitutional mandate to pass such orders as may be necessary for doing complete justice in any case before it. All authorities, civil or judicial are under obligation to follow such orders.

It is a matter of academic discussion as to who really controls the process of justice, whether the courts or the governments. So, far the criminal cases are concerned all the investigations are done by the police or other governmental agencies which report to the government. Prosecutors are appointed by the government also. Courts are concerned with the trial. Thus, two important aspects which constitute justice, investigation and prosecution are totally in the hands of government.

The government also provides funds for the smooth functioning of the courts. By regulating the flow of funds, the government controls the capacities of courts indirectly. Better equipped courts with better and sufficient staff can deliver justice faster and more efficiently. Justice being a concurrent subject, both the Central and State governments are responsible for providing funds. The government indirectly controls even the process of trial through its control on funding.

No doubt the courts are duty bound to provide, fair and expeditious justice. The points of fairness and efficiency are many times in conflict. The increasing workload of the courts raises the matter of writing and publishing of judicial proceedings, decisions and orders. The existing practice of writing and reporting judicial proceedings, decisions and orders needs to be reviewed carefully in order to enhance the efficiency of the courts. A very alarming situation the Indian judiciary faces today is the burgeoning arrear of pending cases, not only with the lower courts, but also with the Supreme Court. Delay in disposal of cases frustrates the very purpose of Justice. Delayed justice is denied justice. Delay creates frustration and results in loss of confidence among the general masses. A sense of despair and frustration is inevitable in any individual, who unfortunately entangles in litigation. There is no certainty of period of getting the final justice. In civil cases, the minimum time is supposed to be ten to fifteen years. What is the sense of having such a judicial system, which delivers justice after such a long period, in many cases, after the death of the original plaintiff? Even if a judgment is passed by a lower court, an appeal can be filed in High Court as well as in Supreme Court. As such more than thirty to forty years may be required in getting the final verdict.

Now-a-days, the Supreme Court has become a sort of miscellaneous court, where all kinds of cases take final shape. It had never been the intentions of the constitutional makers that the Supreme Court be burdened with such a situation where every case be tried and find final verdict. The Apex Court must be meant to decide the cases involving constitutional issues, or question of law, which have some special importance. But today the Supreme Court is overburdened with all kinds of cases, which causes a lot of delay in imparting justice to the masses.

The prevailing situation of pendency among the courts is because of the failure of the Supreme Court to advise a suitable mechanism for screening of the cases. The Supreme Court is unable to restrict itself to cases involve constitutional conundrum and important question of law. In many cases, the Supreme Court has reopened the cases abinitio hearing Public Interest Litigation (PIL) is one of the recent developments in the Indian Judicial System to provide relief to the voice less. It is a paradoxical situation that the Supreme Court has become so much busy in hearing public interest litigation applications that it has no time to solve the earlier lakhs of cases pending before it. Many times the guidelines laid down by the Supreme Court for admission of matters in the public interest has been disregarded by the court itself resulting in lot of ambiguity and anomaly.

Now-a-days the High Courts and the Supreme Court have extended their attention to virtually all kinds of matters relating to common people. May it be pollution in the metros, or application of CAS or fitness of transport vehicles for the children, everywhere the intervention of court seems to have become necessary? Leading jurists have described the Supreme Court as an “All India Miscellaneous Court”.

From the original scheme of creation of the Apex Court, we find a lot of diversion and diversification of its functions. Ambiguity on a single point at the Apex level resulted into hundreds of conflicting and controversial judgments at lower levels and that creates further litigations and unending appeals that is what happening as on date.

Many people criticize the Supreme Court judgment in Bhopal Gas leak case in which the Supreme Court quashed all the past, present and future proceedings against the Union Carbide and two lawyers, the Attorney General of India and the counsel for Union Carbide, were allowed to reach a settlement endorsed by the Supreme Court. Such a procedure adopted by the Apex Court, rendered the entire legal system of country to a standstill. The decision along with other aspects of this settlement was passed and conveyed in a summary order barely in 350 words, without putting any logic, reasoning or concerns for precedents. Such decision had made the Indian jurisprudence meaningless. No legal or judicial system in the world can be imagined to provide justice on such erratic and inconsistent basis. It is the need of hour that the original intent of our constitution to be restored to the Supreme Court. Significant structural changes are required to make judiciary understand the necessity of providing fair and expeditious justice as per the original intent of our Constitution,

Lots of improvements are required in the functioning of the courts, in order to minimize the time in disposing of the cases. Practically seen, there is no time limit fixed for arguing cases. Cases are being argued for months altogether in Indian Courts; while in the USA, counsels are given exact time to argue the case.

The number of holidays in India is too much not only in judiciary, but in almost all departments. There are many occasions where the advocates resort to suspension of work without any logical reasons. Judges are not punctual in their duties. Judges come late in their offices and enjoy lunch period more than the prescribed limit. No positive and resultant checks are made on such daily flip-flops. All these cause delay in disposal of cases.

In recent years, cases of bribery, acceptance of facilities and perks at the cost of clients have besmirched the reputation of judges sitting in higher as well as in lower courts. The acceptance of bribe by the clerks and readers of the court for giving next date or for taking the case for hearing on priority is very common and well in the knowledge of the judges. A common man is being looted by the lawyers and the judicial officials in the process of getting justice expeditiously or for delaying the proceedings. All such things have affected the image of the judiciary as a whole, even though majority of judges among them are persons of high integrity and full of wisdom.

Judges Inquiry Bill, 2006

In an attempt to ensure judicial accountability, the government introduced the Judges (Inquiry) Bill, seeking to go into allegations of misbehaviour against Supreme Court and High Court judges, through the proposed National Judicial Council (NJC).

The Bill aims at bringing greater transparency in judiciary and making the judges more accountable.

The Judicial Standards and Accountability Bill, 2010

The Bill still pending seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigation of individual complaints for misbehaviour or incapacity of a Judge of the Supreme Court or High Court. It also provides a mechanism for the removal of

Judges.

The bill requires judges to practice universally accepted values of judicial life. These include a prohibition on (a) close association with individual members of the bar who practice in the same court as the judge, (b) allowing family members who are members of the bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters on matters which the judge is likely to decide, and (c) engaging in trade or business and speculation in securities.

In order to make the judiciary more responsive to the needs of people and speed up the process of justice, make it more accessible and reduce costs, the following

  • Computerization of the whole country for quick disposal of cases.
  • Fill up vacancies. Presently, there are about 20 per cent vacancies in Supreme Court. The sanctioned strength of the Allahabad High Court is 77 but it has never ever reached in its history.
  • Competent and able members of the Bar are to be ‘attracted’ to the judicial posts at the subordinate level.
  • Granting of admission orders and stay orders must be curtailed.
  • The high level of court fees prescribed by many state governments must be reduced as it adds to the cost of justice.
  • Delays add to costs—more the delays, more the adjournments and more the cost of litigation—and so delays must be cut; not more than two adjournments are to be permitted.
  • The problem of arrears can be solved by strict enforcement of Article 141, which says that the rulings of the Supreme Court are binding on all courts;
  • The rules regarding adjournments given in Order XVII of the Civil Procedure Code must be strictly followed so that repeated adjournments are not made.

A very critical situation arises on the part safety of the judges who try the cases of hard-core criminals and militants. If the judge makes an order against such offenders, the judge himself becomes the target of their fury and many times faces end of their lives at the hands of such hard-core criminals. Such incidents of killing create a sense of fear among the judicial officers. The point of dilemma is what is to be done in such a situation, how the judicial officers be given surety of their safety. A nexus between hard-core criminals and the politicians many times frustrates the judicial officers, from passing appropriate orders. Criminal law is supposed to be the most deterrent instrument to tackle the criminals, but whether the law is stringent enough to serve the purpose, is a point to ponder upon.

Needless to emphasizes that judiciary is a vital organ of any democratic setup, responsible to provide, fair and expeditious justice-to all. Lot many structural reforms are required to improve the working standard of the judiciary so that the importance of this vital organ is not vitiated and the confidence of people is not shattered further. Whenever the matter of structural reforms in the judiciary is raised, the focus is only concerned to the higher courts that are High Courts and the Supreme Court. None in the judiciary ever raised the problems faced by the lower court’s officials. Unless the functioning of the courts at grass root level is improved, the actual benefits of reforms will not reach the common people and the burden on higher courts can also not be reduced.

The lower courts consist of trial courts, the district courts and session courts. These courts represent the first tier of the judicial set-up. Most of the population, the illiterate poor agriculturists, the ignorant common man, come in the contact and look upon these courts as last resort for Justice. The functioning of these courts is so dismal and working condition so pathetic that whosoever goes to them for any remedial measures, finds him a scapegoat of the manipulations of advocates, public prosecutors and the judicial clerks. There is no system or procedure for fixing the next date. Any party can get a date of their choice by spending a little amount of money. Moreover, the building, furniture for sitting, the almirahs for keeping the records are in such a dilapidated condition that any mishappening cannot be ruled out. These subordinate courts are situated in noisy and congested places and work in small rooms without proper facility of basic infrastructure. They are to write down the judgment orders in their own hand for want of stenographic assistance. The benefits of IT revolution have not yet fully reached these courts.

Facility of computers and Photostat machines which can fasten the pace of justice and smoothen their functioning have not made available to these courts. The perks and facilities including pay and allowances of the subordinate judicial officials are far from satisfactory. It is a bitter fact that a clerk of a Bank and LIC are getting more remunerations than these officials. If we compare the overall pay package of equivalent judicial officials with that of nearly countries like Sri Lanka, Pakistan etc, we find that our officers are getting much less.

They are also expected to maintain a standard of living, certain decency, integrity of highest order, but being paid so less, is one of the basic reasons why some of the subordinate officials tempted to accept the unlawful gratification. It is the need of time that the working condition of these courts be improved to a required level.

By improving the working conditions of higher courts only the delay in justice cannot be curtailed. The pendency in higher courts is always given some thoughts but lower courts are never considered. More than 100 million cases are pending in lower courts which affect adversely the common man. Unless the facilities and working atmosphere of the lower courts is improved it is difficult to imagine reducing the sufferings of the general litigants. Accelerating the pace of disposal of cases pending at the higher courts will not remove the bottlenecks and faults lying at the lowest levels. It does not mean that reforms at higher level are not necessary, but ignoring the lower courts shall be an imprudent way of reforms.

It is the need of hour that legal and judicial set-up be streamlined right from lower level so that the gradually deteriorating confidence of common man in the judiciary could be restored. The judiciary is responsible to provide fair and expeditious justice, it is also responsible to safeguard the legal and Fundamental Rights of the citizen so immediate attention is required to be paid to make the judiciary most competent and suitable to the need of the society in our democratic set-up.