Come join us, in a movement to reform our Judicial system
The so called great English politician and also the former prime minister William Edwart Gladstone (1809-1898) quoted “Justice delayed is justice denied.”[1]
People are losing faith in judiciary. It is mainly because of long delays at all points, the reluctance of all the judges to give the judgments and the inevitable adjournments. That is why people are approaching the mafia which believe in out summary justice.[2]
There is an advertisement which often comes on television . The ad is of a plywood company which, in a scene of court, shows two lawyers arguing a case. The beginning of the ad shows two young lawyers while case keeps getting adjourned. The ad ends with two aging lawyers (same people who played young). The accused too has become old man. The case again gets adjourned. The theme of ad is that their plywood is timeless and the table top which judge uses is made from their plywood which he keeps using for banging it while adjourning the case. Their punch line is 'chalta raahe, chalta raahe' which means keeps going.
The ad is satire on Indian judicial system. Theory of Justice, by definition, is a study based on presupposes or ideal which a men seek for its realization through law. The word justice has been derived from the actual concept of justness which acts as the primordial factor for any state to provide for its populace. Justice is adorned as the very embodiment of God, whose sole mission is to uphold justice, truth and righteousness. Under our Indian constitution Justice sets the ultimate goal for all of us to serve our nation. "Without Justice, life would not be possible and even if it were it would not be worth living" ......Giorgio Del Vecchio (Justice)..It is a mixture of natural and social justice as evident from Preamble and Part IV of our constitution. The concept of Justice being so important is used only twice in our Indian Constitution, i.e. in Preamble and in Art 39 A. In Preamble it sets out as- to secure to all its citizens- Justice- Social, economic and political and Article 39 A states that the state to secure equal justice and free legal aid for the citizens. Our current stress on justice itself is a reminder of the fact that justice is not available to us. Indian judiciary is the last hope for citizens of India. Sixty long years ago we declared ourselves as independent but still the process of delivering justice to the people causes frustration and disgust. It is a fact that in most of the cases the grandsons are appearing before the court and fighting the cases filed by their grandparents. The common saying among the litigants is that in court battle both parties to the dispute are losers only lawyers are the gainer. The reasons for the pathetic state are many, As Chief Justice Burger has noted: "A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law - in the larger sense - cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets"Government occasionally comes out with same cosmetic changes like establishing tribunals for the motor accident claims, tribunals for accident cases, administrates tribunals for service matters, debt recovery tribunals to decide bank cases, consumer forums for consumer cases. These tribunals have not delivered much, except the cases were transferred to them from regular courts. Inordinate delays and repeated adjournments on frivolous grounds generally contribute to the delays. A committee was also set up, a few years ago, under Justice V S Malimath to examine changes and its report came, coincidentally just before the fourth anniversary of Jessica Lal’s horrific murder. But the position remains unchanged.
Personality like Nani Phalkiwala opined that Justice in common parlance is considered as blind but in India it is lame too and hobbles on crutches. If we want justice to be accessible to all, then it must be relieved from the Laissez faire pattern, where justice like other commodity can be purchased. Quest for justice has nothing to do with procedure or jurisdictional aspect rather it cares for its speedy disposal. Judicial system in India is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal. Procedures must be utilized to advance the cause of justice but in India it is used to thwart it. Justice is something which should be dispensed as early as possible otherwise it will be too late for a critic to add a common adage to that Justice Delayed is Justice Denied.
Reality Of Age Old Cases Let us consider some famous or rather in famous cases which took media attention and made entire nation waiting for the verdict.
· The first case being on Bombay (mumbai) serial blast. The blast that rocked mumbai was unprecedented. For first time a metro city of India was targeted by serial blast. It killed 250 people and injured 700 people. The attack is believed to be carried out by D-compnay and Tiger Memom is the chief accused who is still absconding. It took 13 years for court to reach judgment of the case. 129 people were arrested , out of which 100 were found guilty.
· In Safdar Hasmi murder case, for example, who was killed by political opponents, the criminals were punished after a long 15 years.
· In Tanduri murder case, the accused a Delhi Congress Leader Susil Sarma was convicted with death sentence after long 8 years 6 months. He murdered Nayna Sahani and destroyed evidence by burning her body within a Delhi based hotel.
· In Jessica Lal’s case the situation is even more tragic because justice was never delivered. She was shot dead in a Delhi bar in full view of several people. It was on the basis of their statements that the police built their case against Manu Sharma and he, himself, fled the crime scene and remained on the run for days, something he would have been unlikely to do had he been innocent. But, as time went by, witnesses to the murder suddenly became unable to identify him as the killer so he is already out on bail and will probably remain free and go on to a long and successful career as a politician.[3]
· The Supreme Court of India is not even immune to delays. It's much acclaimed -- judgment in the D.K. Basu case in 1996, known for its directives aimed to prevent custodial torture, took ten years to be reached. If a judgment takes this long time in the Supreme Court what can be expected from courts of lesser authority?
· In the Uphaar case it is shocking that it took six years to establish that the 59 people died because of criminal negligence on the part of the cinema management and the Delhi government. It was clear from day one that nobody would have died had the cinema followed safety rules but because the wheels of Indian justice move at the pace of our national vehicle - the bullock cart - it took six years for justice to be done. And, if the Ansal family and the guilty officials decide to appeal it could be many more years before justice is really done.
· Twenty years had passed to the ghastly incident of deadly methyl isocyanate gas leak from the Union Carbide plant in Bhopal on December 2nd and 3rd in 1984, which took a toll of 15000 people. But still the poor victims are fighting for its compensation, which fails to measure up the damage caused to them. The tragic Bhopal gas verdict has found all 8 accused to be guilty. The chairman of union Carbide Corporation of the US, Mr Warren Anderson has been declared absconding while one of accused died during trial. Long 25 years for verdict in case which killed thousands of people of India.
· Ruchika Girhotra Case made headlines and outraged the nation, seeing powerful police personnel getting away with small imprisonment after 19 years of the criminal offense. He molested Ruchika who was minor at that time. He used all his might to make life difficult for Ruchika and her family. Ruchika committed suicide while her family was ruined. Active media made sure the case reaches drawing room of every Indian, this brough immense pressure on administration and rocked parliament too. Currently Rathore has been given 1.5 years of prison and CBI is looking forward to file case for abatement of suicide. It took 19 years for friends of Ruchika and her family to get this “justice”.
· The terrible situation occurred in August 1991 as massacre of Dalits took place at Tsundur in Andhra Pradesh. Long Thirteen years had passed to that incident, the families of the victims of Tsundur, still await justice for those who died. They say, they will not find any peace until the guilty are punished for their crime.
· Then there is the case of Sadhvi Pragya, accused for Malegaon Masjid Blast, who is in jail for years even after numerous narco tests and police atrocities, in the name of collecting a single bit of evidence, but in vain.
· ThePriyadarshini Mattoo case drew celebrity and common people alike in the quest for justice. There are other high-profile cases pending all over the country and families of victims will draw courage from latest verdict of Supreme court. But Priyadarshini will not come back. And Chaman Lal Mattoo has aged while fighting for something that should have come in the natural course of things.
· In Anil Rai vs. State of Bihar case, Sethi J stated that Delay in disposal of the cases facilitates the people to raise eyebrows, sometime genuinely, which if not checked, may shake the confidence of the people in this judicial system. Thereafter this problem of delay in justice delivery system had engaged attention of our law commission for a quite a long time. To cope up with this situation they have proposed several amendments. But the position retains unchanged [4].
· In Sheilu Barse’s case, the court had repeated, in his own words, what five judges of the Supreme Court had said on the very narrow of independence: “If the allegations are true, obviously it would be to the benefit of public to bring these matters into light” [5].
In a democracy, the courts belong not to the lawyers and judges but to the `citizen', as Jerome Frank wrote. Once we accept this democratic dimension of the Judiciary, the rule of law gains a philosophical elevation. The highest is not above the law; the humblest is not beneath the law. The true conception of the administration of justice is that the lowly concern of the least person is of the highest consideration to the state and the court [6]. Justice delayed is justice denied, is an old but wise saying. An honorable judge has once said that with current volume of cases pending, it would take another 300 years for judges to give verdict. Justice delayed in justice denied goes the saying and Indian Law ministry has to coordinate with judiciary system to make sure faster justice is delivered. Why has this delay happened and how this delay could be tackled are the questions of hour? Who is/are responsible to this state of affairs is also not an irrelevant question? Today the victims of the all the above-enumerated cases know full well that the price of truth is extremely high. Still they are waiting…But for what? Whether all these amounts to justice?
Current situation shows that it will take more than 300 years to clear the backlog of cases in Indian courts. How slow a process should litigation be? Should it keeping jumping from court to court? Litigations should not be perennial. The reason one goes to court is to get justice, and "Justice Delayed is Justice Denied". Unfortunately the judicial system in India is based on evidences and facts and not on conscience or morals, so it should be easier, once having the facts at hand, all it needs is argument and hearing and quicker pronouncement of Justice. A judicial system that cares only about evidences and facts shouldn’t worry about taming the souls of the plaintiff and the defendant with time rather give justice as quick as it can. Once we accept the proposition that in a democratic society the court system plays a crucial role in seeing that neither licence nor absolutism becomes dominant, the difficult tasks of the court vividly stare us in the face. 1Constitution (Article 39A) mandates that the state shall secure that the operation of the legal system shall promote justice, on a basis of equal opportunity and shall ensure that opportunities for securing justice are not denied to any citizen. The experiences of last 57 years, however, show that the Judicial system has, however failed to shape the processes of the law to actualize the constitutional resolve to secure equal justice to all. The State has failed squarely on addressing some very basic issues--quick and inexpensive justice and protecting the rights of poor and the vulnerable.
In a democratic country like India, judiciary should play a vital role in establishing a state of justice. Therefore being the watchdog, they are not allowed to shift their burden to others for their failure to establish an actual State of Justice. It is judiciary on which millions of people have struck their faith of getting justice. It has the capability of imparting justice to the aggrieved. It is that part of our constitution which acts as its Messiah. It is that structure of our society, which cemented its place next to the God and if not properly dispensed will shatter down the entire trinity of democratic instrumentalists with checks balances, parliamentary structure and the judicial facets of our constitution. Generally people, aggrieved with lots of pain anguish and hope in their heart approaches the court of law for their grievances to be clarified but at the end of the day the procedural lacuna left them with bare hands. They are denied of their most important right of Justice. In India, Justice is beyond the reach of most and the right of access to it is not communicated to the citizens properly. In many a circumstances it was found that the litigant who has had access to the court failed to obtain relief and for some never have the opportunity even to knock the doors of the court due to ignorance and poverty. The people who are illiterate by and large, indigent in no small measure, feudal in their way of life, and tribal and backward in large numbers, need an unconventional cadre of jurists and judges, if equal justice under the law is to be a reality. If there is breach, judicial power must offer effective shelter. In sum, the judicial process, in its functional fulfillment, must be at once a shield and sword in defending the have-nots when injustice afflicts them. And this must be possible even if the humbler folk, directly aggrieved, are too weak to move the court on their own and a socially sensitive agency advocates the cause. Securing justice - social, economic and political to all citizens is one of the key mandates of the Indian Constitution.
The government has not addressed the causes for delay seriously. Many amendments were done to reduce the back log, but these amendments certainly will not reduce the back-lock overnight. The basic issue is that by delaying the progress of the case, one party is getting advantage and the other one is suffering, the delays in deciding case is due to shortage of judges and staff and poor infrastructure. In lower courts everyday around 70 to 80 cases are called and all the cases are adjourned without any progress, complainants and opposite visit in courts only for taking dates. One can observe this unending process, before all courts. The parties to the dispute are all aware that, by just one call from the court's office, their case is adjourned to another 6 months and the party, who is in need of adjournment, is benefited. The government should solve this by appointing more judges, and by limiting the call matters to a maximum of 25 cases per day. The whole society will be in jeopardy, as the entire judicial system will collapse under its own weight. In the words of K. G. Balakrishnan, Hon'ble Chief Justice of India, ".... the peoples faith in the judicial system will begin to wane, because justice that is delayed is forgotten, excluded and finally discharged ...[3]
Reasons For Delay In Disposal Of Cases
The justice delivery system is on the verge of collapse with more than 30 million cases clogging the system[7]. There are cases that take so much of time that even a generation is too short to get any type of redressal. That it will take more than 300 years to clear the backlog of cases in Indian courts is proof enough that our criminal justice system is sick, stagnant and in urgent need of a complete overhaul. Delayed decisions, piled up files and indefinitely extending projects, never serve their purpose. They are the real roadblocks to development of any state or nation. Generally, delayed decisions take its maximum toll from the under privileged section as Poor section of our society, who were always treated as animals. They are often denied of their bare amenities of life.
The first and the biggest problem is of the delay in disposition of cases. Due to huge pendency, the cases take years for its final disposal, which would normally take few months time. The arrears cause delay and delay means negating the accessibility of justice in true terms to the common man. The very core of a civil society and rule of law is the provision of justice, but the decision must be delivered within a reasonable time. It is totally unfair if a suspected criminal waits for trial for years and is ultimately found innocent. Similarly, the victim of the crime will be also not satisfied if there is no punishment to the criminal for so long. Only speedy justice could ensure effective maintenance of Law and order. Quality of justice not only promotes peace in the society but also strengthens internal security of the country. There are number of litigations which could be avoided if Govt. officials had taken interest, for e.g. section 80 of CPC require a prior notice of two months to Govt. by a party who wish to sue the Govt. The purpose of this section is to give time to Govt. to settle the matter with such party by taking proper and suitable action, and thereby could avoid unwanted and unnecessary litigation. But the utter failure of Govt. official in taking a quick, bold and suitable action inspite of giving time forces a person to file case.
Strength of Judges are inadequate according to population and bunch of cases. Following are an approx statistics showing an average disposal and pendency of cases which would rather reveal the actual state of justice in India today:
· On average 50 lakh crimes are registered every year, which are sought to be investigated by the police.
· As of 2008 there was about 10,000 courts in India .Out of these, one Supreme Court, 21 High Courts, 3150 District Courts, 4861 Munsif and 1st class Magistrate courts and 1964 2nd class Magistrate courts are there. Besides, there are many tribunals. The total effective strength of judges is 12,177. The ratio of judges to population is 10.5 to one million, the lowest in the world. The accumulation of vacancies in the Benches -140 against the approved strength of 668 judges in high courts and 2000 against 15000 in subordinate courts.4
· There are 4.04 crores cases pending in different district courts across the country while there is a backlog of 34 lacks cases in State High Courts. Currently as per the available information, there are more than 3 crore civil cases pending in various court in the country, more than 50 lakh cases in high court and more than 30,000 cases in the Supreme Court- a totally unacceptable situation. As many as 70 percent of these cases are -litigations from villagers. Again some of these cases are as long as 25 to 30 years old. The longer a case runs, the more expensive it becomes to pursue.
· Pending cases of the under trials in criminal cases are 1.44 crores.
The infrastructure of the lower courts is very disappointing. Though, the Supreme Court and High Courts are having good infrastructure but this is in not the same position with lower courts. The Courts have no convenient building or physical facilities. The executive has failed to provide necessary infrastructure to enable judiciary and function normally. Good library, requisite furniture, sufficient staff and reasonable space are the need of the qualitative justice. In some courts security systems is also not good. The legal profession is one of the most struggling profession but no social security scheme is available for lawyers, some financial aid should be provided to Bar associations or the new beginners by the government. The good working condition of the lawyers would help in the excellence of service and qualitative justice to the litigating public.
Competency of the Other Staff in Court: It should also be kept in mind that not only Judges and Advocates be competent but also the administrative and clerical staff. The clerical staff must be free from all type of corruption. This is the era of computerization. The highly technical and competitive clerical staff will also help in speedy course. We all know how much time is taken in getting merely a copy of the judgment? It is hard that money is used to speed up the process. The bribe giver does not wish, to get anything done unlawfully, but merely wants to speed up the process of movement of files and communication relating to decision. Certain sections of staff concerned do work only after taking money.
Investigative agencies generally delay: It is generally heard that the accused gets bail as the investigating agency failed to submit charge sheet within statutory period. The combination of several functions, such as crime investigation, riot control, intelligence gathering, and security of VIPs by a single police force has a devastating effect on the criminal justice system. Now-a-days, the crime investigation is not immune from the partisan politics. The power of the government to drop criminal charges against the accused has further abused it. The lethargic police investigation is also a ground of slow process of law.
Remedies To Overcome Delay (Suggestions):-
· There is need to establish more courts and to increase number of judges according to population. While the population of the country and the number of cases has increased manifold, the judgment services appears to be understaffed. Same is the position of the courts, where number of courts is less in comparison to the need. As it is estimated that India has, only about II Judges per million populations, which is among the lowest ratios in the world? Obviously, there is an urgent need to increase the number of judges specially at the local level for giving access to the ordinary people.
· There should be time limits prescribed for adjudication.
· There should be uniform formats for the appeals and petitions to make the procedure easy. The judgment should be in brevity and clarity.
· The concept like of public interest litigation is always welcoming, which is affordable to common men. Hence, there is a lot of scope to improve the situation. For e.g. Section 301 Cr. P.c. should be amended to allow the victim to appoint a lawyer of his choice in addition to public prosecutor to defend his case. Similarly, Section 3 13 (3) of Cr. P.C. also be amended so that the accused would be held liable for refusal to give answer or telling lie. The victim will be allowed to cross-examine the accused to elucidate the truth. There must be some fixed time for presentation of written statement, counter claim and reply like the plaint, under the I imitation Act. After all procedural law is meant to further ends of justice.
· It is needed to establish a body at national level composed of Judges, Lawyers and Legal academics, which should be charged with a duty to conduct examinations for recruitment to Indian Judicial Service (IJS). Article 233 will have to be amended to confer power on the president to appoint members of Indian Judicial Services on the recommendation of National Judicial Service Commission. The creation of Indian Judicial Service is appeared necessary to get best available talent in the country. Though, already a demand of establishing large number of ordinary courts is pending, yet special courts have its own importance.
· In developing countries the corruption is growing like cancer and unless cases are taken up and decided early, the disease will spread further. The special courts and prosecuting agencies may be appointed to deal with cases of corruption and cyber crimes.
· There is urgent need to improve the basic infrastructure and management of resources. Modern technology and use of computers will also increase the efficiency of the court system.
· The judiciary has also to learn management techniques through training at all levels. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The lower courts are the basic institution of justice and to improve the quality of the justice dispensed with, it is necessary to improve their infrastructure by modern technology. Lack of funds should not be allowed to enter in the way of development of infrastructure, as external security is necessary, internal maintenance of law and order is also necessary for the internal security, national interest, peace and progress. In general budget certain handsome amount could also be allocated to judiciary like defence and education or a separate judicial budget should be placed, like railway budget.
· The panel of government lawyer should also be on merits not on the basis of nearness to ministers. As the government is the largest litigant, more transparency is required on their part. Govt. counsel should be selected on the basis of merit, efficiency, integrity, by some transparent manner. There should also be some permanent vigilance provision to observe the working of the public prosecutors.
· Security system in courts also needs improvement for proper confidence of people and fearless functioning of system. Information-counter should be set up in every court for the convenience of litigating public.
· Our criminal justice system has the urgent requirement of Independent Investigative Agency. Delay in police investigation is also one reason due to which cases linger on for years. It is, therefore, good to create an independent wing of police force, fully in charge of crime investigation, and functioning under the direct control of independent prosecutors. That wing should be accountable to judiciary and not to particular government of a time. The practice of torture and third degree methods, extra judicial execution in fake encounters may be stopped also when crime investigation machinery became accountable to judiciary. Such type of police wing also became knowledgeable about the type and method of the evidence needed. Hence, baseless cases, which lead acquittal, also will come down. So, there should be co-ordination between police and prosecuting agencies. The early disposal of case also boosts the morals of police force and will save time, which would have been taken in producing arrestee to the court Horn time to time.
· We have inherited British legal system, Britishers prescribed it at that time, without considering the need of Indian society nor did they consider the practicals of the procedure. So, this system is drawn from different sources without seeing the ground realities. Some people today prefer to keep quiet, rather than go to the court of law. So, now this system is more Indianised for making it fit to society. It is heard that in ancient time justice system was very good. The disputes were settled on the spot by delivering justice. But ancient justice proceedings were oral in general and therefore no much record is available. Now we can take modem know-how from the countries, which have best justice delivery system by getting acquainted with the procedure followed there, if fit to Indian society.
· The civil and criminal procedure codes and the laws of evidence [8] have to be substantially revised to meet the requirements of modern judicial administration. Though most of procedural laws are effective even today but some provision needs revision, especially the civil laws. To lessen the burden of cases, we may introduce the concept of’ Plea-bargaining' by decriminalization of those wrongs, which can justly be dealt with by compensatory remedies (Compensation to victim like in tort).
· The institutions involved in justice delivery system such as the police, the prosecution, the court, prison etc.-requires to be reformed in terms of organization, procedures, resources and accountability. So that, nowhere citizen feels uneasiness.
Conclusion
The Anglo- Saxon jurisprudence is followed in most of the countries and has delivered good results through out the world. But in India, we the people, failed to take advantage, and become a laughing stock in the world. We are all blaming that law delays are a stumbling block in over progress. But we should try to rectify the mistakes in the system, and by to bring back its part glory. Only then we will get its fruits. To introduce reforms, and to streamline the system, a strong political will and allocation of necessary finances from the government is necessary. Till then the reforms will remain on paper only and the sufferers is the client.At last but not the least “To cut the gorgians knot is always a hard nut to crack.” Which means it is not easy to resolve a complex problem. According to B.P.Singh J the situation today is so grim that if a poor is able to reach to the stage of a high court, it should be considered as an achievement. At this juncture, judiciary obviously owes an obligation to deliver quick and inexpensive justice irrespective of the complicated procedures but it cannot be hurried to be buried. Cases should be decided for imparting justice not for the sake of its disposal. Secondly, Arbitration procedure must be utilized as a better option for quick disposal of cases. Finally, to conclude with the words of Lord Hewet as it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
[7] "Backlog of cases causing concern : CJI." The Hindu, Thursday, Aug. 16, 2007 and see also, Bare Act- The Constitution Of India, P.M.Bakshi, Universal Law Publishing Co.Pvt Ltd.
[8] C.K.Takwani, Civil Procedure Code, Edition-5th, Eastern Book Company.
