B L Saraf
Union Law Minister Kiren Rijiju, while speaking at the first convocation of Maharashtra National Law University in Aurangabad said that nearly five crore cases are pending in Indian courts and the number will go up further if no action was taken. The minister described the situation “a matter of great worry for all of us. “He called for a drastic action to be taken in this matter (DE 9 July). The minister narrated experience of his latest visit to the UK and said “In the UK every judge delivers a judgment in maximum of three to four cases in a day. But in Indian courts , every judge on an average presides over 40 to 50 cases every day .”
After reading Law Minister’s statement one can say that country hasn’t done much to bring justice delivery system on the rails. We may recall how Chief Justice, T S Thakur, in 2016, diagnosed the ailment that afflicts our justice delivery system. Today the law minister is nearly echoing him. Former CJI, while addressing the conference of the Chief Justices and Chief Ministers held in April 2016, said ” 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, Shri Thakur broke down in front of PM Modi, who was present in the conference.
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. In India Justice is a Constitutional mandate. Unfortunately, the justice system is not working well. Often heads of the judiciary have expressed fear that it is collapsing. Executive seldom paid heed.
Today’s statement of the Law Minister and of the concerned persons in the past raise fundamental questions ; What are the impediments in dispensing justice in India ; how can we design a legal system which can render justice to the people- what should be concept of justice ? Should it 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 are to be found in the Indian context. Our oldest judicial system never distinguished between law and justice.
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 .
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. Above all it is the executive’s inertia and lack of a will to deal with executive matters that throws even a pure administrative matter in the court room. The minister has cited a British judges example but he must know that in UK rarely a political or a executive matter goes to the courts for a decision.
True, a democratic form of governance compels a ruling political party to cater to the whims of its workers. Finding itself unable to grant favor to a party aspirant the Government functionaries advise a judicial route for him. Precisely for this reason, Article 226 of the Constitution survived PM Indira Gandhi’s onslaught in Emergency. In doing so she wanted to clip the wings of High Courts who ,she considered, were interfering with her business Noted jurist Fali Nariman informs us in his book Before Memory Fades how the rustic S Swarn Singh , much against the wishes of law knowing ministers , explained it so to Mrs Gandhi and saved Art 226 from being scrapped .
To improve the criminal justice delivery system we need witness protection law, without affecting accused’s 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. It is encouraging news that mediation bill is on the anvil which may pass into law in coming monsoon session of the Parliament.
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. The internal unholy work of political parties should not be thrown to the compound of courts. 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 Law Commission’s 120th report which says present judge – population ratio of 10.5 per 10 lakh should be raised to 50 per 10 lakh must be accepted.
Lawyers have a big role to play in ensuring proper functioning of the justice delivery system. According to Justice Rtd VR Krishna Iyer “No group has greater responsibility in helping maintain our free institution of society than lawyers. Because they are uniquely equipped through training and experience to be the leaders of the fellow citizens.” 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.” Very apt to the present situation prevailing in India.
(The author is Former Principal District & Sessions Judge)
Laws Delay Law Minister’s Lament
B L Saraf