Thursday, March 17, 2011

WHAT AILS OUR SUBORDINATE JUDICIARY? | Legally India

WHAT AILS OUR SUBORDINATE JUDICIARY? | Legally India

JUSTICE” is one thing that everyone whether rich or poor profoundly yearns for besides requisite ROTI, KAPRA AND MAKAN in life for soulful enjoyment of one’s all mundane gains and acquisitions. No wonder taking cue of this vital human need our constitution framers accorded due primacy to this noble aspect of human life while framing our constitution as would be evident from the opening recital of the preamble of our constitution which while elucidating the broad contours of the basic objectives of our constitution assigned top most position to justice in the tally of all objectives that WE THE PEOPLE OF INDIA resolved to provide to our people while adopting , enacting and giving to ourselves this CONSTITUTION. The preamble reads as follows:-
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”
A bare perusal of our preamble thus suggests that securing JUSTICE to all the citizens is the foremost important task of the STATE. In the parliamentary system of democracy in our country, each organ of the state viz. legislature, executive and Judiciary has been assigned important but distinct role to play to achieve the aforesaid objectives, working in tandem and harmony with each other while working within their constitutional limits and competence. Broadly speaking, while legislature frames the laws to achieve the objective of democratic socialism, executive implements such laws for the welfare of the people and judiciary plays the role of a watchdog to see the validity or otherwise of the enactments passed by the legislature on the touch stone of our constitution and also to see if such public interest serving enactments passed by our legislature have been properly executed/ implemented by executive in letter and spirit or not. Thus it is clear no amount of laws framed by the legislature under the garb of public welfare could serve the cause of the people in real sense unless these are found to be in conformity with the constitution by the Judiciary. Similarly no legislation howsoever well intended in nature and character it may be would serve the intended purpose of public welfare unless it is implemented and executed with equally benevolent zeal and earnestness by the executive. This makes the role of JUDICIARY all the more paramount to achieve the real objectives of our CONSTITUTION in real sense of the term.
But no organ or institution howsoever great or important it may be, could work properly and deliver goods unless adequately equipped and strengthened, commensurate with the mandate assigned to it under constitution. An ailing institution itself ridden with a host of impediments and constraints and scrambling hard to get rid of such hindrances obviously cannot discharge its functions properly howsoever laudable its role may be and howsoever well intended efforts it may clamor to make in the name of public welfare.
In this backdrop of scheme of things, if we examine the state of affairs with regard to JUDICIARY in our country, let us first focus our attention to the function of subordinate judiciary in the matrix of three tier justice delivery system of our country. This is apt and important so to do because the journey of the long torturous road to justice actually begins from the portals of lower courts euphemistically called as the FIRST TEMPLES OF JUSTICE in the common parlance or the very threshold of the huge edifice of the judiciary in our country.
1. PERIPHERAL VIEW:-
A visit to any lower court in any part of the country (exception being made to newly constructed courts) would be a revealing pointer to the grim ground realities obtaining in our country about this august institution. This would enlighten us about the pathetic conditions in which the courts function and help us dispel much of our misgivings we often harbor about this premier oracle of our justice delivery system. A multitude of people thronging the campus in the quest of justice, a cacophony of sound often subsumed by the shrill voice of the court staff calling out the case, a bevy of tormenting touts chivvying you to the point of harassment and irritation is the common sight of any subordinate court anywhere in the country. With no clear signages provided conspicuously at appropriate places indicating the location of a particular court even if one succeeds locating the desired court after great deal of hustling – bustling in the huge crowd of the people one is appalled to see the old dilapidated structure of the building housing the court and its staff. On the way one comes across the shabby treatment meted out to the under trials brought from the jail for the hearing of their cases that day. The under trials are herded like sardines into a dingy, unkempt, stinking small enclosure called LOCKUP. The LOCKUP has no provision of adequate ventilation or fans etc. Even if by some altruistic gesture fans are provided, the same remain unused either for want of power supply for most time of the day or want of necessary repairs causing the conditions of the under trials all the more pathetic and revolting. One would also notice lack of adequate facilities like toilets and drinking water especially for women folk, senior citizens and children etc. on the campus. What is all the more deplorable is that in most of the subordinate courts across the country there is no provision for the litigants sheds or lawyer’s chambers in adequate numbers. LITIGANTS are the species to cater to whose needs primarily these courts owe their existence to and if they are denied such basic facilities on the campus it multiplies their plight and misery rather than alleviate the same even after reaching so close within the embrace of their saviours. In other words, the whole scene is so chaotic and pathetic that one often wonders if he has landed up in the portals of Justice or in the stock market. One remarkable similarity between the two however is the dominant role played by luck and speculation. In the case of the court also a litigant often treads with a sense of trepidation whether his case would be heard that day at all or not and would not be tossed up to some next date for reasons beyond his comprehension.
2. INSIDE VIEW:-
A long CAUSE LIST normally hung on the notice board outside every court room is no guarantee that all cases listed therein would eventually find the gracious favour of the Judge’s kind attention on that day as there are myriad grounds for adjourning the same to some other date which causes great deal of consternation and bewilderment to the indigent litigants who come from far off places leaving their work in the vain hope of to get prompt justice in their matter. Most common grounds responsible for such dismal affairs are vacancy of the judge for want of posting / appointment, flash or prolonged strike of lawyers or the staff of court, declaration of holiday by the government in the event of some festival or contingency having arisen all of a sudden necessitating declaration of a holiday on that day. While these are some of the common features which often cripple working of the courts to the detriment of indigent litigant , the poor litigant still has no reason to feel relieved and hopeful to get a patient hearing in his case even if no such grounds exist to force an adjournment of his case. There are other factors also which can belie his hope for an early justice. The Judge may be on leave on that day or lengthy arguments in some important case may be robbing him of a chance to take up any other case for hearing despite his best intention to exhaust the whole cause list of that day. So the chance of a hapless litigant getting a hearing of his matter largely depends upon his sheer luck. Instances are not few where everything being in order i.e. Judge being very much present, none gone on strike, no case of lengthy arguments or grilling cross examination of witnesses being there still the case could be adjourned if the Judge is busy dictating some important urgent orders or judgments in his chamber leaving him with no choice but to adjourn rest of the cases to some other day. This situation normally arises when the concerned Judge is saddled with the task of looking after the work of some other courts also besides his own court or during the closing days of a particular month or quarter of the year where the Judge is under a tremendous pressure to complete his mandatory quota of work.
3. MALPRACTICES GALORE:-
It is not that this state of dismal affairs hurts and adversely affects everybody. In fact there is a tribe of people whom this kind of situation suits best to serve their vested interest. While the poor litigant who has been wronged wishes to seek speedy justice, the other side which is on the wrong side of the law always wishes to be off the dragnet of law for as long as possible it could be managed and welcomes every single cause or reason that retards the movement of chariot of justice as far as possible. This party and its lawyer join hands to adopt all machinations of dilatory tactics to delay the process of justice by seeking adjournment on sundry grounds. This tribe of people has no canons of justice and no commitment to the society and ruthlessly feast on the plight and miseries of the people. What is shocking and surprising is that such people succeed in making an almost impregnable network of likeminded unscrupulous people including the court staff and work in such a well orchestrated manner that the system is geared to serve their vested interest to the detriment of needy poor litigants waiting desperately to get justice at an early date. Such people adopt all nefarious means and acts of malfeasance to delay the justice or defeat the ends of justice with great sense of impunity and unfortunately there is none to check them from doing so. The whole system seems to have become hostage to the whims and fancies of such type of people. Obviously the brunt of this menace is mostly borne by the under trials whose miseries or tale or woes get further compounded every time their cases get adjourned to next day. Then again there is none to assure them that the system would not be allowed to be smitten by the bug of STRIKES OR CONTINGENCIES evolving in conflict with their right to speedy justice next time also and they stand cheated again & again by the vagaries of their hard luck. This on the one hand erodes the faith of honest, right thinking people from the system and causes them untold sense of harassment and desperation, emboldens the wrong doers to further perpetuate their wrong doings with greater ease and flourish fearlessly on the other hand. The lot of poor innocent litigants is thus left to fall a prey to money and muscle power practiced on them by the people on the wrong side of the law. No wonder there is no dearth of cases where under trials have languished in jail longer than the period of punishment they would have suffered if ever found guilty and convicted in due course of trial. There have been instances where a convict had remained in jail even after having long suffered the period of sentence pronounced against him owing to sheer apathy and negligence on the part of the justice dispensing authorities owing to ulterior motives. Once you step into any subordinate court room you can find TWO OR MORE witnesses being simultaneously examined in the different corners of the court room, while the judge seems engaged hearing arguments in some case. This makes the mockery of the whole system and gives rise to a lot of malpractices breeding corruption in the view & presence of the judge himself. In such cases the judge does not supervise or oversee the recording of the statements of the witnesses and does not know if the statements are being recorded strictly in conformity with the provisions of the Evidence Act and judgment based on such statements would not lead to injustice to the person who did not deserve it. The judge in his haste to dispose of lot many cases himself thus becomes the author and perpetrator of such gross injustice and is blissfully unaware of what transpires just below his own nose and how the canons of justice are being trampled with his unwitting connivance in such a despicable manner.
4. VITAL STATISTICS :-
There are roughly more than 16000 trial courts in our country struggling hard to cope with a huge pile of over 3 crore cases to be disposed of. Unfortunately there is no TIME BOUND SYSTEM to fill the vacant posts of judges and staff much before the vacancy occurs or is likely to occur. The system of recruitment and appointment of staff & judges is so arduous and lengthy that it takes too long to serve the desired purpose as a result of which the courts remain vacant for a pretty long time adding to the woes of the poor litigants and increasing the pendency of cases many folds. To tide over the situation, a single judge is often assigned the charge of two or more courts besides his own court which indubitably gives rise to such obnoxious situations as result into corrupting the whole system to a large extent. The blitz crazing impact of scientific and technological development on our society has given rise to an altogether new species of crime i.e. CYBER CRIME. But we have yet to develop adequate infrastructure to deal with such crimes. Our existing forensic laboratories are awfully inadequate in number even to deal with conventional crimes and also lack adequate means, resources and manpower to deal with the rush of cases which again causes delay in disposal of cases and for which the subordinate judiciary often unreasonably has to face the flak for non performance or tardy performance.
There is no provision to recruit officers in a systematic time bound manner. The prevailing practice is akin to measures often adopted to meet the contingencies of draughts or floods by the govt. The process to set up a new court initiates much longer after the need arises and the process to recruit officers also takes place in a majestically slow pace thus defeating the very purpose for which the whole exercise was undertaken. There is also no adequate provision of training of judges in the realm of fast changing crime scenario and there is no provision for research to develop and spruce up the decaying system. As a result of which the modern look of judiciary especially the subordinate judiciary appears to be archaic in the perspective of fast changing world. This shows utter apathy and callousness on the part of the Govt. towards the organ of the democracy which in real sense is the bed rock of democracy & true sustainer of democracy. Though under Article 227 & 235 of Constitution, the high courts are vested with power & authority to supervise the working of all courts subordinate there to, no notice is taken of pitiable conditions under which the subordinate courts work. The most these high courts do to discharge their constitutional obligation towards subordinate courts is often to indulge in high sounding rhetorics to exhort subordinate courts to dispose of cases expeditiously without paying any heed to their ground realities & cases of individual predicaments such as non posting/sanctioning of adequate supporting staff by the Govt., non provision of adequate budget in time, non provision of computer in a particular court for a long time or such sundry difficulties blighting their spirit & zeal to work hard. The preachings unrelated to the ground realities often fall on deaf ears & sound more didactic in nature rather than inspiring one to spur one to action and hence fail to have any impact whatsoever in sprucing up the system.
The recent statement of Hon’ble the Union minister of Law to disband existing FAST TRACK COURTS and not to sanction any budget for any more FASTTRACK COURTS to be set up is a grave pointer to the scant regard Govt. has for this institution and for the welfare of the people at large. Though legislature has passed the amendment to Article 39A of our Constitution to secure equal justice & free legal aid to the poor litigants, the purpose of this noble provision however seems to be defeating for want of adequate number of courts, infrastructure like police stations, forensic labs, other necessary wherewithals to secure speedy justice, time bound system of appointment, promotion of judges & supporting staff, machines, libraries & chambers of the lawyers as also for want of provision of litigant’s sheds with facilities of toilets & drinking water etc. etc.
5. DEFICIT SELF GOVERNANCE (INSTITUTIONAL FLAWS)
While Governmental apathy & neglect is arguably the most damning cause for the dismal state in which the subordinate judiciary in our country finds itself embroiled today, it would however be too presumplious & ludicrous to hold it alone squarely responsible for the messy situation and say otherwise everything is hunky dory in the subordinate Judiciary.
A close & dispassionate peep into the working mechanism of subordinate judiciary would reveal that it is deeply shackled within a mesh of its own self designed cobwebs that gives it a countenance of over burdened slow moving institution rather than a vibrant dynamic institution. There appears to be a dire need of harnessing modern techniques and procedures to keep the great institution in fine fettle to meet the growing challenges of modern times. A slew of suggestions given below, if taken care of, could give it a smart make over by bringing it out from the morass it is in today:-
· “CONCILIATION AND NOT LITIGATION” should be adopted as the working MOTTO and judges must exert themselves to impress upon the litigants the virtue & merit of the provision of ALTERNATIVE RESOLUTION OF DISPUTES mechanism. While this would lessen the pendency of cases in courts, it would provide speedy justice to the parties too to their entire satisfaction.
· The time worn practice of preparing DAILY CAUSE LIST should be thoroughly revisited to make it more practical & viable one. Instead of listing too many cases only to be adjourned to some next day ultimately serves no purpose. Neither the parties get fairly good time to present their cases nor the judges seem adequately poised to give proper attention to such cases. Only as many cases should be listed as are feasible to be taken up for hearing and are not fated to be adjourned ultimately owing to paucity of time, care should be taken to ensure equitable time slot to each case listed for hearing. While doing so due priority be accorded to older or serious cases over and above relatively newer simpler cases.
· Judges should personally supervise the working, conduct and integrity of the subordinate staff especially those dealing with the issuance of processes, copies etc so that SUMMONS, WARRANTS, NOTICES, ORDERS etc are issued with desired promptitude as per the directions of the court and are not unduly delayed. It would be appropriate to take the party to task found wanting in carrying out the directions of the court without any good reason simply to delay the proceedings. Similarly member of the staff found guilty of not carrying out the direction without any reasonable cause/reason should also be severely censured to mend his ways. There should be some mechanism to reward good performers also to boost up their morale and encourage others also to follow suit.
· The practice of hearing lengthy arguments should be shunned and filing of WRITTEN ARGUMENTS should be strictly enforced. ORAL ARGUMENTS could be permitted only for the purpose CLARIFICATIONS or for rounding off the opponents arguments.
· The Examination of witnesses should also be properly watched by the judges to see it remained focused to the issues at hand and does not prolong unreasonably long simply to harass the witnesses.
· Judges should cultivate a habit to write brief, concise but fully reasoned judgments which not only betray their judicious approach and legal acumen but also reflect their analytical bent of mind.
These steps though seem to be too small in nature, if taken sincerely, it is hoped, would prove to be great leaps in the progressive saga of subordinate judiciary to help sustain the faith of the public in the INSTITUTION and savage the situation to a considerable extent.
SYNOPSIS:-
The dismal state of affairs could improve if and only if there is a strong will power of the Govt. to address to the aforesaid problems of the subordinate judiciary in right earnest & take prompt & adequate realistic measure to revamp the whole system from the grass root level to enable the subordinate judiciary to successfully combat with the mighty monster of ever growing backlog of cases so that it could come up to the hopes, aspirations & legitimate expectations of the people in real sense. It is indeed regrettable that Hon’ble the Supreme Court while expressing its anguish on the prevailing dismal state of affairs was rsather impelled to bemoan the other day (11.02.11) that no Govt. wants a strong judiciary. If no timely measures were taken to improve the decaying situation and no adequate budgetary provision was made for the judiciary which at present is awfully low (less than 1% of total budget) we are destined to be doomed sooner than later. And people would hold the Govt.’s apathy & nonchalance responsible for this if God forbid, it ever so occurred. Let us hope Govt. takes this to be a clarion call to immediately mend affairs before everything goes haywires.

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