In this article, Aishwarya Sujay Kantawala pursuing M.A, in Business Law from NUJS, Kolkata discusses remedial measures to delays & corruption in the Judicial system.
‘Injustice anywhere is a threat to justice everywhere.’
A lofty and wondrous ideal indeed that judges and lawyers around the world claim to swear by. However, piercing the veil of solemnity and secrecy, we find the justice system, especially criminal justice dispensation, plagued by a deluge of delays and cacophonic corruption. Before taking a closer look at the prevalent malaise, let us briefly acquaint ourselves with the Indian judiciary’s hierarchy and system and procedure of functioning.
At the apex, lies the Supreme Court of India, headed by Honorable the Chief Justice of India, comprising another 30 judges, who make up possibly one of the strongest and most powerful judicial systems across the length and breadth of the globe. The States have High Courts (with varying judge strengths depending on the case burden and population) which are the principal or lead judicial fora in their assigned jurisdictions. They operate over ordinary, original, civil, criminal, constitutional etc. branches of law. States or Union Territories, alone, or in combination can share a common High Court as well. A case in reference being the Punjab and Haryana High Court at Chandigarh, which has territorial jurisdiction over the States of Punjab and Haryana and the Union Territory of Chandigarh.
Apart from this, below them come the District and Sessions Courts (including the City Civil Courts in the metros and some other cities where the nomenclature is slightly differently worded) and lower Courts, including Courts of Civil Judges (Senior Division and Junior Division). This setup is further reinforced and supplemented by certain tribunals, commissions and other quasi-judicial authorities. The Supreme Court and the High Courts are the superior courts of the land, established directly by the Constitution. The High Courts also have administrative control and supervision over the lower and subordinate courts that operate in their respective territories.
Without any semblance or iota of doubt, a plethora of ills beset the judicial machinery in the current age, some for which the Bar and the Bench are to be blamed, and some for which the government i.e. the executive is to be held liable. A common refrain is that it takes years and decades for Indian courts to decide cases even in the face of mounting pendency, arrears piling up and the like. We can cull out certain important stakeholders in the justice delivery wing – judges, lawyers, the state/police, victims/accused (the litigating parties) and the general public.
‘Justice delayed is justice denied.’
Those familiar with Indian films, in particular Bollywood movies, may recall and recollect the actor Sunny Deol expressing his anguish with the famous ‘taareekh pe taareekh’ dialogue. As much as the film would have you believe, the reality is different. The curse of adjournment however is a creation of the advocate, for his client. The Judge sits and hears cases for the specified period. If one case is adjourned, the other is taken up. If this is also adjourned, another gets heard. Thus, the Judge hears cases. It is not as if he or she gets it easy and can afford to relax if a matter is adjourned because there still remain cases on the bench’s docket.
One can proffer the argument that judges need to be sensitized to not give adjournments until absolutely necessary. Per contra, lawyers should be counselled to not seek adjournments without due cause. A system can possibly be devised to fine the parties that unnecessarily or wantonly seek dates and accommodations. This is the major predicament with regard to civil cases.
Coming to matters on the criminal side, the prosecution connives with the accused to prolong trials. Production of witnesses for the prosecution is a responsibility resting solely on the shoulders of the State, with criminal courts more often than not hauling up the concerned police officers, more specifically the Superintendent of Police in charge for failure and negligence in producing important witnesses on time and to guarantee their safety.
In fact, a three Judge Bench of the Supreme Court was pleased to observe thus, “The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) Cr.P.C. supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day.” The District Judiciary should be suitably instructed to follow scrupulously the relevant provisions of the Civil Procedure Code and the Code of Criminal Procedure.
The Honorable Apex Court has also duly asked the High Courts to ensure examination of witnesses is not unduly adjourned in the lower courts on flimsy grounds. The Constitutional Courts have repeatedly cautioned against unwarranted grant of adjournments. Adjournments not only delay and indefinitely prolong the cases being brought to a logical quietus, they also sow seeds of persistent doubts in the minds of the general public, especially the common litigants, who develop a cynical approach towards turning to Courts for justice because of the unwieldy time-period as if being in a slow, if at all moving, queue. It is the faith of the common masses from where judges and judicial officers derive their strength and they are repositories of the public trust having been vested with immense powers under the Constitution and other statutes.
‘Justice must not only be done but also seen to be done.’
In the times we live in, public confidence in the Legislature and the Executive has dwindled to record lows due to various factors. But a heartening fact emerges that despite the batterings and bruises the judiciary’s image has taken, it remains one of the last bastions to still retain a pre-eminent role in the eyes of Indian citizens. This boost, of course owes much to three recent judgements which have re-enamoured affection and adoration to judiciary – the Triple Talaq verdict, the Right to Privacy adjudication and the conviction and sentencing of a self-proclaimed godman.
The Malaise of Corruption: Et tu, Judiciary?
The vice of corruption is a malady, nay, a cancerous conception, that is eating away at our great nation from all sides. Sadly, the judiciary is also not immune from this pervading persistent pestilence. While there are reports on and off, of corruption in the lower courts, particularly with regard to bail cases, by and large, the higher judiciary has despite certain aberrations, of corruption, impropriety, misuse of office viz. Justice Dinakaran, Justice Ramaswami et al.
While lower court judges have a proper disciplinary mechanism, there is no effective alternative in place to handle errant judges a la Justice Karnan. This is majorly due to the fact that the framers of the Constitution and the founding fathers of the nation thought it fit to impart an unprecedented level of protection to Judges of the higher courts to guarantee them full security in office to ensure their independent thinking and wisdom of judgement.
‘Be ye never so high, the law is above you.’
The High Courts, being the sentinels and guardians of the lower judiciary have the onerous responsibility of ensuring judicial administration in their states runs on track and judges act responsibly, all the while also ensuring that the officers are protected from false attacks and frivolous allegations and vexatious innuendos with regard to their conduct. A watchful and vigilant judiciary must ensure that its house remains in order. It must not demand respect, rather should command it.
‘Respect yourself and others will respect you.’
It is in this context that the nexus between lawyers on opposite sides needs to be addressed seriously. The Bar Associations should sensitize members of the bar, with emphasis on the young blood, to uphold the noble ideals of the profession. The Bar Council of India and the State Bar Councils should also take the lead in this regard, being the regulatory bodies established by Parliament.
The relationship between advocates and judges is a uniquely unparalleled one. While judges are expected to maintain a reasonable standard of aloofness, which is an occupational hazard, lawyers have no such inhibitions, forced or voluntary, to abide by. This is where an individual’s sense of propriety, conscience and judgement sets in. It is a matter of great satisfaction that right from the times of the Emergency to instances more known to memory, the Bar has stood up for bold and upright judges in the face of unprincipled opposition from even the might of an arrogant State and its agencies. This bodes well for the future of a country as a proactive bar means an aware citizenry.
In similar fashion, all judges on their exalted positions have reached there through the Bar. Every judge was once a lawyer. And every Judge will return to the Bar after demitting judicial office. Hence, judges must also ensure that a cordial relationship subsists with members of the Bar, and minimum courtesy must be extended to and maintained between both sides, inside and outside court. Both must exercise and observe restraint so as to maintain decorum in the courtroom and consistent with the majesty and rule of the law.
Commentators and observers alike lament that the excruciatingly slow pace of the system also promotes corruption. It is prudently pertinent to note here that this corruption is not limited to bribing the judge, it encompasses bribing the staff like court clerks, peons etc. for little favors. It is this culture of laxity that needs to be sternly dealt with since the judicial staff also plays a vital role in administering justice, more so in the rural areas where they are even more revered.
It becomes the bounden duty of the Presiding Judge to ensure that the staff attached to his or her Court display high standards of personal and professional behaviour. This adds to the prestige of the justice administration wing and builds and evokes confidence in the large populace that every litigant with a genuine grievance will find appropriate redress in the temples of justice.
The Road Ahead
The Indian judiciary lies at a historic crossroads in the sands of time. It is now or never. It has to perform or perish or reform and replenish. But all is not lost. The most compelling thing is to resolve the current logjam over the appointments of Judges of the higher courts. The Memorandum of Procedure is swinging like a pendulum between the Executive and the 5 member Supreme Court Collegium for long. This has been the situation, one of flux ever since a 5 Judge Constitution Bench struck down the National Judicial Appointments Commission and ordered a re-drafting of the Memorandum of Procedure. It is imperative that this is resolved at once and the issue brought to its logical closure. The Executive must have a say in the appointment of judges, but the independence and primacy of the Judiciary must be maintained at all costs by the Chief Justice of India and his Brother and Sister Judges. This is also the mandate laid down by the supreme law of the land, viz. The Constitution of India. Indeed a free and fair judiciary is the hallmark of a modern democracy and a civilized society founded on the egalitarian principle of rule of law, and not an unjust rule of man.
For proper justice dispensation, courts at all levels and tiers must function at their sanctioned strengths and not at abysmally low members as they are now. Even recruitments to the lower judiciary must be streamlined but more significantly a time-bound plan of induction and training and promotions must be made at the earliest. Fortunately, under the auspices of the Supreme Court, a start on this front has been made. Let us hope for a quick culmination of these matters.
‘Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it.’
A comprehensive witness protection law may also be enacted by the Parliament and the State Legislatures. Several Reports of the Law Commission of India have suggested the same. It will enable witnesses to depose before Magistrates and courts free from fear, coercion, undue influence, harassment, threats and inducements. A Private Member’s Bill in this regard was introduced in Parliament by a Member of the Lok Sabha (House of the People), but was not able to see the light of day.
Broadly speaking, the concerned court should consider, while delving into the question of arranging adequate protection for a witness matters like cost of providing police protection to the witness, his or her family, period of protection commensurate with the case, nature of investigation into the case and last but not in the least, the court should take into account the importance of the witness in the matter as also the information and evidence he or she is likely to provide for the case at hand. Citizens who appear before the courts to testify so as to render a helping hand in the dispensation of justice.
The courts are also rapidly witnessing digitization of records to enable technological advancements are utilized for the benefit of the entire system and in the best way possible. E-courts are the future and this will save time, money, efforts and resources but going paperless will enable the judiciary to be eco-friendly. The Supreme Court and all the twenty-four High Courts have set up special e-Committees comprising senior judges to oversee the computerization drive and provide the requisite leadership and give it the desired impetus to move forward at a fast pace.
The biggest litigant, with the largest number of cases is the government, central and of the States. The National Litigation Policy framed by the Government of India and the State Litigation Policies put in place by the respective State Governments must be scrupulously adhered to and followed by the governments, its agencies, instrumentalities and all concerned bodies. Imposing costs to discourage the practice of seeking adjournments has also been mooted.
Appointments and engagements of lawyers to government panels must be made strictly on merit basis and for fixed periods only. The State of Punjab, prodded by an order of the Supreme Court of India, has shown some quick movement in this regard. Even this has been though, greeted with trenchant criticism and scepticism with regard to its enforcement. The judiciary relies on its reputation for fairness, impartiality, integrity, institutionalism and incorruptibility. It is gainsaid that the courts can scarcely afford any loss of public faith.
‘There is no virtue so truly great and godlike as justice.’
The Legislature also needs to ensure that existing laws are updated by way of amendments or repeal so as to de-clog the statute books. The concept of sunset clauses wherein the Acts themselves provide that they will cease to have effect or become inoperative after a certain date passes by or a some fixed period of time elapses should be seriously considered. The legislative organs should also undertake either time-specific or statute-specific Judicial Impact Assessment studies to gauge the possible effect of enactment of laws on the already overburdened courts and tribunals. Alternative forms of dispute resolution and grievance redressal should also be encouraged
It is also quite essential to curb disquiet and murmurings against the system from within the system. Differences of opinion amongst the members of the three member collegium or the five member collegium best not, need not and should not be aired out in public or debated against on television or news platforms. The sanctity of judicial discipline, decorum and conduct must be upheld. This piece of sagely advice is exactly what has been advocated by none other than the legal luminary, Fali Nariman, who also incidentally happens to be the father of Shri Justice Rohinton F. Nariman, a sitting Judge of India’s Supreme Court and among the rare lawyers to have been directly elevated for induction to the bench of the highest court of the land.
Let us now turn our attention to the problem of nepotism in judicial appointments. Lawyers unanimously concur that wards or juniors of Judges or Senior Advocates or those with particular family backgrounds or political leanings have an unwarranted advantage when it comes to getting appointed as Judges or being on the panel of the State or other prestigious institutions, organizations, or entities. Opponents of such a thought counter by saying that being relatives of judges or well-known advocates or politicians does not disentitle them from being considered for higher positions in public life, the rider being they are qualified and meritorious.
Obviously, one cannot find fault with people just because they were born in or happen to hail from certain families who by dint of fate, fortune, or hard work happen to be well-known and established! This can be effectively taken care of by inducing transparency in the system of appointments and transfers to the extent possible. On many occasions, the courts have themselves remarked, “Sunlight is said to be the best disinfectant.” The degree to which public scrutiny of such sensitive matters can be permitted has to be decided by the judges themselves.
Lives and careers of judgeship candidates cannot be ridiculed or exposed to public gossip. Rumors and half-truths cannot form part of the reasons for selection or rejection of the lot of aspirants. But surely, some intricate middle path can be conceived and conceptualized whilst thereby also preserving and safeguarding all relevant interests by the Supreme Court Collegium which is supposed to be the fountainhead of judicial wisdom for the entire country and whose members are held in high regards and esteem by the general public of the country for its judicial intellect and dedication and commitment to furthering the cause of justice in our nation.
On a concluding note, one can only remark, or rather more poignantly, hope and believe that the only song, nay poem, on the judiciary’s lips goes somewhat like this…
‘The woods are lovely, dark and deep, But I have promises to keep, and miles to go before I sleep, And miles to go before I sleep.’
Section 309(1) Cr.P.C