Home Essay/Articles ESSAY : Indian Judiciary–A Comprehensive View
ESSAY : Indian Judiciary–A Comprehensive View
Written by Administrator   
Wednesday, 19 June 2013 10:41


Indian Judiciary–A Comprehensive View

 

“The Constitution of India secures justice to all its citizens apart from securing liberty, equality and promoting fraternity. In Indian democracy the Supreme Court plays important role of safeguarding the fundamental rights of citizens which includes providing fair justice also. Justice which is the should of a democratic society, must be administered without fear or favour. Integrity, Impartiality and Intelligency are some of the important characteristics of the independent judiciary in a democratic setup. ”

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. Article 131 to 140 deeds with the powers of the Supreme Court. The Supreme Court of India has three kinds of jurisdiction:

1. Original jurisdiction
2. Appellate jurisdiction
3. 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 existence or extant of legal rights depends. 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 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.

In Indian democracy, the Supreme Court plays important role of safeguarding the fundamental rights of citizens which includes providing fair justice also. Justice which is the soul of a democratic society, must be administered without fear or favour. Integrity, Impartiality and Inteligency are some of the important characteristics of the independent judiciary in a democratic setup.

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 agency 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 functionaing 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.

The central allocation of the tenth five year plan (2002-2007) for justice is merely Rs. 700 Crore, comparing with the government’s recent decision of spending Rs. 727 crore on the purchase of five aircrafts for the use of VIPs, can well reveal the paradox setting up of fast track courts, family courts, consumer courts, special courts for SC/ST cases, has speeded up the procedure of justice. As such it has been the decision of the government, which can speed up delivering justice.

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 purposed of justice. Delayed justice is denied justice. Delay creates frustration and results in loss of confidence among the general mass. 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, aster 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 fory 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 decided the cases involve constitutional issue, 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 conumdrum 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 not 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 its attention to virually 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”.

The original theme of creation of the Apex Court, we find a lot of diversion and diversification of its functions. It was imagined to be consist body, responsible for the country. 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.

The flagrant example of the case of Bhopal Gas leak 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 stands still. 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 or such erratic, and inconsistent basis. It is the need of hour that the original intent of our constitution be resorted to the Supreme Court. Significant structural changes are required to make judiciary understand the necessity of providing fair and expedition’s justice as per original intent of our Constitution.

Lots of improvements are required in the functioning of the courts, in order to minimize the time in disposing off the cases. Practically seen, there is no time limit fixed for arguing cases. Cases are being argued for months altogether in Indian Courts, while 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 causes 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.

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 a sense of fear among the judicial officers. The point of dilemma is what is to be done in such situation, how the judicial officers be given surety of their safety. A nexus between hard0-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 emphasize 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 grassroot 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. The courts represent the first tier of the judicial setup. Most of the population, the upon these courts as last resort for justice. The functioning of these courts is so dismal and working condition so pathetic that whosever 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 admirals for keeping the records are I 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 I.T. revolution have not reached these courts.

Facility of computers and Photostat 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 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 s standard of living, certain decency, integrity of highest order, but being paid so less, is one of the basic reason 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 is improved to a required level.

By improving the working conditions of higher courts only the delay in justice cannot be curtailed. They pendency in Higher Courts is always given some thoughts but lower courts are never considered. More than 100 million cases are pending in lower court which affects 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 Court 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 reforms.

It is the need of hour that legal and judicial setup is streamlined right form 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 setup.




 

Add comment


Security code
Refresh

Articles
Newsletter Subscription
Fill the form below to subscribe for recieving email alerts from rosemaryinstitute.com