B L Saraf
Honorable Chief Justice of India, T S Thakur (CJI) while addressing conference of the Chief Justices and Chief Ministers said, in a choked voice, “It is not only in the name of a litigant or people languishing in jails but also in the name of development of the country and its progress that I beseech you to rise to the occasion and realize that it is not enough to criticize. You cannot shift the entire burden on to the judiciary.” He was reflecting upon the appalling conditions of the judicial infrastructure and the huge pendency in the courts. Overwhelmed by the enormity of the situation, the CJI broke down in front of PM Narendra Modi.
True words, indeed. Functional justice system is an authentic indicator of real socio- economic progress of a country and is reflective of nation’s resolve to adhere to the democratic values.
Quest for justice has been an ideal aspired by the mankind for generations. In India Justice is a Constitutional mandate. Unfortunately the justice system is not working properly. Present CJI as also his predecessors have expressed a fear that it is collapsing. It has fallen on the deaf ears of the authorities. Exasperation on the failure is writ large in the choked voice of the CJI.
The situation raises fundamental questions; What are the impediments in dispensing justice in India; how can we design a legal system which can render justice to a billion people. We have to ponder what should be concept of justice. Should be a conflict resolution or justice dispensation. The resolution of dispute doesn’t mean justice has been done. Probably time has come when we may give a thought to the Inquisitional system rather than the adversarial one in certain situations and in certain cases. The answer to these questions is to be found in the Indian context. It is time to prove Oliver. W Holmes Jr wrong when he says “This is a court of law young man and not a court of justice.”
Our Nation had evolved an oldest judicial system which never distinguished between law and justice. Samirities emphasized the fact that the institution of Kingship was conceived and brought into existence for the enforcement of Dharma. Dharma is the merger of law and justice. Law was evolved to administer justice. We need to wed law with justice.
The World Bank Report titled Comprehensive legal and Judicial Development noted some years back “The elements of a well functioning justice system ultimately depend on the cultural context in which it operates – justice is defined by the society which it serves.”
Our justice system branches, mainly, into Criminal and Civil jurisdictions. While the malaise of delay afflicts the civil jurisdiction, in criminal jurisdiction two challenges surface; one of the delay and other of disproportionate acquittals. The issue, therefore, has to be analyzed in proper perspective and holistic corrective measures are called for.
In India there are variety of reasons for the decline of judicial process; 1, Abnormal delay in disposal of civil cases 2, Defective investigation of a crime and faulty prosecution of the criminal cases. 3 Gap in the judge -population ratio; 4 Procedural impediments. 5 lawyers’ delaying tactics; and 6 Insensitiveness of the judicial officers.
Lack of Infrastructure is the other reason. It has by and large remained same as it was sixty years back as was succinctly brought out by M C Chagla, Ex Chief Justice of Bombay High Court. In his book Roses In December he has noticed the plight of subordinate judiciary, on inspecting a Muffasil court, as “I found nothing that was conducive to a proper working of the court. There was no library sometimes not even elementary text books.” Situation may have improved a bit but is yet to be “conducive to the proper working.”
To improve the criminal justice delivery system there is a need to implement the remaining recommendations of Justice Malimath Committee; Witness protection law should be in place, without affecting accused right of cross examination. Separation of investigation from the law and order duties is desirable .Demarcate minor criminal cases from the serious ones. As suggested by late Justice J C Verma (Former CJI), de-criminalize petty offences involving Traffic violations, village trespass etc.Empower Panchayat Adalats. ( What happened to our Dehi Adalat Programe ). On the civil side , strengthen the ADRS.
Limit for the disposal of cases has to be benchmarked, as is the practice in Western Countries.
Government can’t afford to be a litigant. In house means must be devised to settle the intra -departmental issues. It must retain faith in the judgment of High Courts and desist from over appealing. State should not abdicate its duties and pass on its dirty work to the courts.
Apex Court and the High Courts are burdened with the matters which in the first place shouldn’t be there; for the reason that they are purely in the domain of the executive. Judges may refrain from entertaining frivolous PILs. Memorandum of Procedure for appointing judges for the superior Courts must be put in place soon and the appointments expedited.
The trial judges may follow F. Nariman, when he expects them to do ” Robust Judging ” and develop 3rd eye and 3rd ear to see what is invisible to the naked eye and inaudible to a common person. And above all listen to Apex Court ; ” A trial judge must cease to be a silent spectator and evince active interest and elicit relevant material necessary for reaching a correct conclusion to find truth.” ( Zaheera Sheikh case AIR 2006 SC 136 )
The Law Commission in 120th report, Standing Committee of the Parliament and the Apex Court have mentioned short fall in judicial officers as main reason for the laws delays. Unanimously, it has been observed that present judge – population ratio of 10.5 per 10 lakh should be raised to 50 per 10 lakh
Something about role of lawyers. Justice Rtd VR Krishna Iyer has, regarding the role of lawyers in justice delivery system, said -” No group has greater responsibility in helping maintain our free institution of society than lawyers. A person of law is uniquely equipped through training and experience to be the leader of the fellow citizens.” In the same vein FBI Director Edgar Hoover, once, reminded American Lawyers of their duties towards society “At this hour America specially needs leadership of Lawyers. Moral fabric of our society is badly torn. Disrespect of law and order is widespread.”
Known as the person, who has stuck to his foundational moorings and kept eyes and ears glued to the ground , no matter how high positions he occupied, what H’b CJ I said underlines his attachment to the cause and sincerity of the purpose, to save the institution of judiciary from falling apart.
Wet eyes of the H’b Thakur Saheb revealed that “all is not well in the State of Denmark “and told things which a political rhetoric and the academic jargon are incapable of telling. Going through his speech it could be discerned well that CJI has conveyed the message to the state as Jesus would tell the weary travelers; “We are no doubt heavily burdened. But we have taken up the challenge. Make no mistake, howsoever overwhelming the job may be we won’t shirk to undertake. To mitigate the sufferings of poor litigants, let you share our burden, together we will embark on new journey and finish the job well ahead of time.”
(The authos is Former Principal District & Sessions Judge)
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