HOW HEALTHY IS INDIAN JUDICIARY SYSTEM
– Harshwardhan Jain
Amity Law School, Delhi
Indian Constitution has three pillars i.e. Legislature, Executive and Judiciaryin which Judiciary is the most important pillar. We cannot expect our society without it. Therefore it has history since the ancient times. But now there are many obstacles like delayed justice, pending cases, corruption, costly justice etc. which make it unacceptable system for us. “Delayed Justice is Justice Denied” which means delay in justice is injustice. There is approximately 60k cases pending only in the Supreme Court of India. That’s why no one wants to go Courts but find another effective way for Justice. Adisease of corruption has been grown in this system and politics is being played. Sometimes Judges appoint those person as Judge whom they know instead of their qualification. So how can we expect fair Justice from them if there will be no qualified Judges in the court? There is expensive road to get Justice therefore there is proverb saying that “Justice is only for rich people”. Poor people and even medium class people are unable to find the road to justice even if they go to court then rich people make the case in their favor by giving bribery or any other method, sometimes they intendedly destroy the evidence and get the witnesses in their favor.
But if we try to make this system better than it is also possible by increasing number of qualified Judges and courts also in every possible place. We can make the digitalized court system and also establish Electronic Courts in many places. This type court helps us to reduce pending cases and make this system too cheap for common man. There are many other ways to make this system better but it is not sufficient to make this better only but fair and judiciously also.
In the simplest sense Justice is that when wrong has happened to a person, his wrong needs to be put right. He can approach any forum to get the remedy for his wrong and which decides the dispute is the judicial system or the Courts. In other words, we can say this system1 listens to the dispute then interprets and applies the law. Aperson who has been falsely imprisoned, a person’s house has been trespassed upon, a person may intentionally deceive others, and another may be the breach of contract. These are some situations which give rise to civil litigation. Now the criminal litigation is where accused has been charged with an offense comes up for a trial before a court and it has to be decided whether accused will be guilty or not of an offense or if yes then what punishment will have to be given to him. The purpose of Criminal litigation is to punish and the idea of civil litigation is to correct1 the wrong.
The roots of the present-day human institutions lie deeply buried in the past. The same is true of a country’s law and legal institutions. Indian Judicial System is also not a sudden creation. The Indian Judicial System is the oldest legal system in the world. It can be traced to the time when Brihaspati and Manu gave us Dharam Shastras, Narada the Smritis and Kautilya the Arthashastra.1 The present legal system connects historywith the law, just as the present is the daughter of yesterday, the past; the present legal system is rooted in the past.2 We can see the compliance of the code of civil procedure in the Tughlaq period, which is called Fiqha-e- Feroze Shahi. The legal system as we have today is the product of well-thought efforts of the British Government. That is why there is some similarities Indian legal system share with English legal system. There are many commissions and committees in the period of the British Government to give shape this system.
Indian Judicial System is not working in the present time as it should work. There are many problems which come in the middle of our Judicial System which need to be sorted out. According to the Indian Express, Chief Justice of India T S Thakur said there have been several problems in the matter of appointments of judges and vacancies have really become a national challenge. We have been talking very often about the pendency of cases in the courts. 80 percent of the backlog is in eight to nine states. The State is responsible to not able to fulfil its responsibility to establish an effective and honest Judicial system due to which Indian Judicial System has assumed the state of a lacuna. Indian Judicial System is not healthy right now due to problems of justice delay, corruption in the judiciary, pending cases etc. which are caused due to various reasons. So it needs to get some treatment to become healthy so it can do the best. Now it is time to stop the tears and do some action to get our system in a correct path.
Health of the Judicial System
There are many problems in which our Judicial System is surrounded by. No problem can raise on its own. It raises due to some human action or intervention or we can say human careless or recklessness. All the problems are interconnected with each other in some way or the other. Let’s discuss various problems which our Judicial System is currently facing and their reasons.
Delay in Justice
“Justice Delayed is Justice Denied” which means delayed justice is injustice. If we do not provide justice in a reasonable time then it will be no full justice even may be an injustice. Hence it is very essential that justice must be administered without any delay. There are several cases where judgments were provided after a long time. Like Safdar Hashmi Murder Case, in which criminal was punished after long 14 years for the offense of murder of Safdar Hashmi. Another one is Sushil Sharma vs State (DelhiAdministration)3 which is commonly known as Tandoor Case, in which one accused Sushil Sharma was given punishment of death sentence after long 8 years 6 months for the offense of murder of Nayna Sahani. State vs Siddarth Vashisth & Manu Sharma (Jessicalal Murder Case)4 in which accused were punished after a long battle. Recently Salman Khan’s hit and run case took 13 years for delivery of verdict but there is no clue why it took 13 years for the prosecution to collect evidence. Delay in Justice causes many problems in society. Firstly, delayed justice shows poor quality of justice which causes lack of belief in citizens on our Judicial System. Secondly, the cost of adjudication increase with time so delayed justice results into very costlyfor everyone. Thirdly, delays in judgments encourage falsehood or accused which resulted in no fear in the person who has a guilty mind. Fourthly, sometimes people rather go for settlement or compromise instead of going to court which will not go in favor of the person who claims. Fifthly, delayed justice slows down economic growth and development as economic growth of a country depends upon the efficiency of the judicial system. The more efficiently the Judicial System work, the greater the economy benefits. The first and biggest problem of delay in Justice is an inadequate number of judges and the inefficiency of judges, According to Times of India, Attorney General Mukul Rohatgi listed 8 cases of what he called “Bad appointments and selections.” Due to which havoc is being created in the society. Somewhere it shows the faultiness of Collegium system. Granting of unnecessary adjournment is one of the major reasons which causes the delay in justice.
Rising Pile of Pending Cases and Issue of Undertrials
Pending Cases and Undertrials are one of the other problems which our Judicial System is facing. The very purpose of the Judicial System to give justice in a reasonable time is failed as many cases are pending for years in the Supreme Court and other courts. In Supreme Court, the number of pending cases is 62537 as on 31 December 2016 as per data avail2able with the Supreme Court. Around 40 lakhs cases pending in 24 High Courts as on September 2014 as per data available with the 24 High Courts. As on 31 December 2015, there were 2.6 crore cases pending only in lower courts in which 41.38% cases have been pending for less than 2 years and 10.83% cases for over 10 years.5 The main reason for this pending cases is the shortage of Judges in the Courts. As on 1 January 2017, there are 24 Judges in the Supreme Court and 1006 Judges in the High Court.6 In District Courts also there are 4954 posts of Judges vacant. This problem is not new as Law Commission in 1987 had recommended the increase in the appointment of Judges but nothing has changed. At present time also Government of India is not taking this issue seriouslythat’s why it is causing the delay in appointment of judges and returns many names for reconsideration which has been recommended by the Supreme Court. On November, Supreme Court criticized the attitude of NDA government for its lacking of determination and enthusiasm in an appointment of Judges and also accused the Government by not appointing judges. This destroys the status of the courts in the eyes of the citizens of India and they lost their faith in this system. But this hits more badly to the poor or weaker people rather than rich one because they can afford the higher cost of adjudication or sometimes they go with the road of bribery or hire some professional or expensive lawyer who can change the flow of justice in favor of them or can win the case in a short time but poor people can’t.
Due to delay in the trial of cases, an issue of undertrials raise which is a form of violation of human rights. Prisoners who are undertrial is kept under judicial custody technicallybut for all purposes, it is the same prison where the convicted prisoners are being kept however it is made compulsory that convicted prisoners are not allowed to contact with the undertrial prisoners. It is the violation of their fundamental rights as their right to life and personal liberty is being infringed and also all prisoners are presumed innocent until they proved guilty. Rudal Shah and Boko Thakur are the examples of the undertrials as Rudal Shah who was detained in Bihar’s Muzaffarnagar Jail for 30 years despite being acquitted after 15 years and Boko Thakur was detained and jailed in Bihar Madhubani Jail for 36 years even without a trial. In Sunil Batra II vs DelhiAdministration 19807, Supreme Court ruled that prisoners are entitled to a fair and speedy trial but despite this there are total of 11451 undertrial prisoners who were detained beyond 3 years and up to 5 years and total of 3599 undertrial prisoners who were lodged for 5 years or more than 5 years.8 This cost hardship to the poor, illiterate and weaker sections only because rich people easily came out from this hardship by using their money. Undertrials causes other problem like overcrowded of prisoners in prisons. According to the Prisons Statistics India 2015, the available capacity of Jails in India is 357462 but inmate population here is 403826 which again cause difficulty to prisoners as they have to struggle day by day.
Corrupt and Costly Justice
If a virus is not detected in time, it will surely infect the whole system, the same goes for corruption in the society which is not stopped in time then it will surely destroy the whole society. Today is the time when corruption has almost reached every field of society and judicial system has also found engage by the disease of corruption. From the appointment of judges to the delivery of judgments corruption is everywhere. There is also the provision of impeachment of judges for the misbehavior and misconduct. Article 124(4) of Indian Constitution states that A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. Ex-SC Judge Markandey Katju said that 50% of higher judiciary included SC and HC judges was corrupt. Many lawyers were found living with a luxurious lifestyle beyond their income source and accepting gifts and any kind of favor beyond the price 100 rupees has been prohibited by law as it is considered a form of bribery. There are many examples where judges have been charged with guilty of corruption. Case of disproportionate of income against Chief Justice of Madras High Court Mr. K Veeraswami, Chief Justice of Bombay High Court A.M. Bhattacharya has been found to receive 70 lakh rupee from a firm and he has forced to resign, Justice Arun Madan has resigned after found guilty of taking sexual favors for acquittal, Three judges of Karnataka High Court allegedly got involved in a brawl with a woman guest at a resort, Soumitra Sen, the former Kolkata High Court Judge, became the first judge to be impeached by Upper House for misappropriation of funds, Rachna Tiwari was arrested for accepting bribery of Rs 4 lakh from a lawyer, Justice Gill paying 65 lakh rupee to get her daughter Amol Gill appointed as Magistrate and there are many more cases where it is found that corruption has entered deeply into the system. But the question arises that if the judiciary itself is not protected from the disease of corruption how can it save other institution from this disease or how can it be successful to give justice to the citizens against corruption or how can the citizens trust our judicial system.
Now the road to get justice has become very expensive that everyone cannot afford it. Delay in judgments or cases pending consumes more time and money but delay and pending is not the fault ofthe citizen but the system yet people have to face the consequence of it by choosing the expensive path to get justice or turn their foots back from the path to justice. When the case in the process in the court, many time it is necessary for the person himself to be present in the court. It causes more money and time also. It will be anticipated who will win the case and if suppose a person hired a lawyer and he loses the case then a person cannot get his refund except some exception so at last, he loses his money, the time and most importantly the case. There are many fees which are incurred when one go for a court i.e. lawyer fees, time fees, court fees and travel costs. If a person appeals to the higher court then it will take more money and time to him. According to the survey conducted nationwide across 300 courts and interviewed 9000 litigants, it is found that litigants lost their wages and business of over 50000 crores which means an average of 1746 per case per day for attending lower courts hearings. Add to this, other expenditures and legal fees the figure exceed 80000 crores a year9. That clearly show us how it affects the common citizens of our country. Earlier I think Judicial System is for everyone and for doing justice but as per these reports, it clearly wanders from its path. Some senior advocates also charge high fees which cannot be afforded by common men.
Lack of Transparency in our System
There is the lack of transparency in the appointment of judges and also there is no connection of this system with the society which makes this system more problematic. Appointment and transfer of Judges in India are done by the system known as Collegium System. But there is the lack of transparency in this collegium system for selection of judges. Supreme Court Judge J Chelameshwar, two former Supreme Court Judges, Justice Kuldip Singh and H S Bedi and other Judges of High Court also raised the question of transparency in collegium system and have written to Chief Justice of India that there is the requirement of transparency in Collegium system to meet the NaturalJustice. Many questions are raised about the selection of Judges by Collegium System like lack of access to records to the bench members, no records of the background of the person who is appointed as a judge, incidents of biasness, nepotism inthe selection process and also sometimes there is no fair manner for the appointment. If there is no transparency in the appointment system then there is a higher chance of corruption there. There is a case of transfer of Justice C S Karnan from Madras High Court to Calcutta High Court, was accused of corruption and misconduct but yet was recommended by a panel of High Court Judges headed by Chief Justice Of India and the same was happened earlier when Justice S H Kapadia was the Chief Justice Of India where a Judge who had bad reputation but keep aside this fact and recommended his transfer to Allahabad High Court. Due to these type of incidents, there are many judges who are not qualified but yet acting as a Judge which make our Judicial System much slower, weaker and less effective.
Ways of Treatment
Our Judicial system needs some treatment to become healthy. So there are some remedial measures which we can adopt. As Chief Justice T S Thakur said that India needs around 70000 Judges to clear pending cases, which indicates 50 Judges per million people. It is because the 120th report of the Law Commission suggests to touch this benchmark “50 Judges per million.” There is need to increase the number of Judges in every court to make this system workable in a proper way and to clear pending cases. In appointment process of Judges, only qualified person name should be given as a Judges and it must not happen that let me show the face then make the appointment. The appointment should be unbiased and fair. There should be the time limit for a trial of each case so that many cases can be heard in a day which helps us to solve the problem of delayed justice. There is also need to open court for 365 days a year except during festival and central holidays and there should be no problem in working of courts till night i.e. verycommon in another profession and by this step we are able to solve out two big problems of our system i.e. pending cases and other is delayed justice but we have to keep one thing in mind that it would not be short term action rather we have to work on this for many years and we surely get result in future and our Judicial System will become better day by day. It would be a time taking process like the process of a seed to become a tree.
There should be a committee or some group of 5 to 10 members consisted of legal profession or experts to check the corruption activity in Judicial system and if there any such type of activity is going on than this committee should have power to stop it and corrupt Judges must have to resign otherwise there should be legal proceedings against them. As corruption enters in or system so deeply, it is required to throw this out not onlyfrom this system but from all the institutions, organizations and systems. This committee should also have the responsibility to find out anyother problems or flaws in the system and find out their solutions. There should be academic experts in the courtroom to provide some help to the Judges and also should have power to only advise them but the final decision should vest in the hands of Judges. Every person has basic rights which are guaranteed by the Constitution of India and it can be enforced in case of infringement. But the problem is that the large number of common men are not aware of their rights that’s why there is no equality in the society, discrimination among the people, bad behavior done to the prisoners in the jail. So there is a need to aware them of their rights and it can be done by conducting seminars in the different schools, colleges, societies, jails. NGOs are the most important medium to educate the people and they must do their work.
Now a days many lawyers and Judges make this system a business for them but it is not a business. It is much more than business, it is the most important pillar among the other organs of the government which is only for providing justice. But some people in this profession are so involved in making money that they even forget that what is right and what is wrong and intentionally defend the criminals for money only. It is the root cause of corruption and if the system or the people in this profession focus only on the fair justice then our system will be free from any type of corruption and it will be running smoothly.
In this era of modernization and digitalization, our system should also have to become modern and digitalize. Technologies are very important for any working institutions as it reduces the burden on the people therefore, there is need of technological advancement in this system. There should be computers in the court to maintain the records and library of decisions for making this system effective and quick, printer, photo copying and electric typing machine should also be there and there should be fax machine also to connect the court to other. E Court should be established all over the country. It is an electronic court which will be well developed technical systemworking through the Information and Communication Technology (ICT) and the internet. It can provide audio video conference of the proceeding linking the courtrooms with central jail, forensic science laboratories and other offices as well. We get many benefits from this court like there will be speedy trial proceedings so there will be improvement in the number of pending cases, it will be less complicated as there will be less or no use of papers, affordable to all so that common man can also get the justice as others get after allit is everyone rights and the last benefit which we can get is that there willbe transparency in this court. E Court was first opened in Hyderabad in July 2016 and preparation is going on to open this court in other cities as well. This court will surely make the judicial system better once it is established. This system is for everyone so all has the responsibility to make this system healthy either by doing some work or by cooperating the actions of the Government.
World Justice Project has released the Rule of Law Index 2016 by conducting a survey in 113 countries. In this list Denmark, Norway and Finland are top 3 in the same order, USA and India are on 18th and 66th respectively and Venezuela is the last one according to this index27. This survey is conducted on the basis of 8 factors i.e. constraint of government powers, an absence of corruption, open government, fundamental rights, criminaljustice, civil justice, informal justice and regulatory enforcement. That means India has to do a lot of work in these fields to make it not only better but the best among all. For which India can take help from the topper countries in this index and adopt some measures to improve our system. Everyone knows how important this system is for all and for the society and it needs an action. As I was talking about many problems in which problem of appointment of Judges needs more attention because Judges is an integral part of the Judicial System. If there are no Judges or even some Judges who are not qualified then there will be no Judicial System. So the government should think about the collegium system that what they can do to improve the collegium system or is there any need of another system for appointment of Judges. I was talking about the remedies also but they will be of no use if these are not taken into an action. We should also put our attention on E-Court which can be a great success in term of curbing corruption and reduce the number of pending cases and also make this system cheaper. It is not the job of government or executors only but it is the duty of all to support the government, to give suggestions to them and to have some patience. As I mentioned earlier also that it will be time taking process because nothing can change overnight. But I am sure if these remedies are taken i1nto an action then we will come to see the new system which will be free from any flaws and surely will be in top 10 best Judicial Systems of the world. It is a great time to convert the saying “Justice is only for rich people” into “Justice is for everyone.”
1. . S.D. Sharma, Administration of Justice in Ancient India
2. . H.V. Sreenivasa Murthy, History of India
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