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Published : March 07, 2011 | Author : pallavi ghorpade
Category : Law - lawyers & legal Profession | Total Views : 24633 | Rating :

pallavi ghorpade
Pallavi Prithviraj Ghorpade II NLC email: pallavighorpade@legalserviceindia.com

Indian Judicial Process & Accountability

We always use to think about the actual judicial process .The most important understanding of the judicial process requires us to think about more than formal law and procedure. The first question which often comes in one mind after analyzing the topic is what do you exactly mean by critical analysis of judicial process? Is it merely a statement of criticism or something beyond the imagination of one’s thinking? However, if we closely analyses our present topic, then all the doubts become crystal clear because sixty two years after independence, the entire judicial system is on the verge of collapse. While the superior courts have earned praise from citizens for intervening in citizen’s concerns raised through public interest petitions, only those with resources or cunning can hope to get ordinary justice. Over three crore cases are presently pending in various courts. In most cases, citizens have little hope of getting justice in their lifetime. Corruption and abuse of court processes are rampant.

So, what exactly judicial process is?
Everything done by judge in the process of delivery of justice is called Judicial Process .It basically confines itself to the study of “is” to “ought”of the law.


Judicial process is basically “whole complex phenomenon of court working” and what went wrong with this phenomenon is the issue in my current project.

1 The judiciary is one of the pillars on which the edifice of the constitution is built. It is the guiding pillar of democracy, what is happening inside it is a fascinating study. Its logbook shows that often the judgments of the Apex court degenerated into a dismal failure. There are many self inflicted wounds. This is the story of 59 years of the Supreme Court.
Speaking of the Supreme Court of United States of America, Jackson J., of the court said,

“ we are final, not because we are infallible, we are infallible because we are final.” The judgments of the Supreme Court are final but not infallible. They require constructive criticism, especially to take them out of the morass of alien concept and ideas foreign to the land and culture. The Supreme Court is virtually the proverbial ivory tower, with the judges sitting on the top. Disturbed by some of its judgments, Pt. Nehru once said in a diatribe, “judges of the Supreme Court sits on ivory towers far removed from ordinary men and know nothing about them.” The Supreme Court is sometimes said to be beyond the reach of a common person.

Now, a question arises;
What is justice? Is an age long question since the beginning of civilization? It is an elusive term. What appears justice to one person and from one viewpoint may be injustice to another or in another prospective. We cannot have such elusive concept as a yardstick. There must always be some objectives test to form a foundation of just society. Jurisprudence formulates that test as “justice according to rules”[1]. Therefore, W. Freidmann said, “justice is an irrational concept”. He concludes that justice as a generally valid concept is the goal to which every order aspires as a “purposeful enterprise”.

The question arises as to what actually went wrong to judicial process in India? Because the Supreme Court, instead of searching and basing its judgments on first principles or fundamentals of jurisprudence has sometimes has taken a shortcut by resorting to the supposed fiat of article 142. This article was employed as a tool to pass final decisions, apart from and without recourse to the law of the land. The concept of expanding universe is not confined to astronomy alone. There is fast expanding judicial firmament. The expansion of judicial world sometimes reads on fields occupied and reserved for others. It is very necessary that Supreme Court act with self restraint. Let us remember the adage, “power corrupts and absolute power corrupts absolutely”.

There are certain questions which are needed to be answered in the working of judicial process, like
1. What is the need of Court fees?
2. Why advocates are needed?
3. Why we are bound to pay advocate fees when they are called as officers of court?
4. Why we have chosen adversarial process of justice?
5. What is wrong with this system?
6. Is there any justification of having Limitation Act which is pro British legislation?

Critical analysis of the present system of Judicial Process
3.1 An introductory analysis of Indian judicial process:
A vision of equal, expeditious and inexpensive justice for India’s millions, a passion for effective delivery of social justice for the victimized masses and a mission of constitutional fulfilment through a dynamic rule of law geared to democratic values, operated by a fearless judicial personnel with a positive people oriented jurisprudence broad based an access to a sensitive, streamlined, functional jurisprudence- that is the command of the Preamble to the Constitution and the categorical imperative of Article 39-A. Our socialist Republic now hungers for human justice through human law and staggers towards nowhere since courts have lost their credibility and are writing their own obituary through retiring chief justices. Today judicial justice has come to a grinding halt, the judicature has caricatured itself and the Bench and the Bar, alas, have become a law into themselves, Indian humanity having alienated itself from the feudal forensic system and the cult of the robbed process. If all the judges and lawyers of India pull down the shutters of their law shops nationwide, injustice may not anymore escalate, if at all, litigative waste of human and material resources may be obviated.[2]

Now, a situation arises that the entire Indian justice system is now under severe threat. With the police force that has been condemned by everyone as being incompetent and corrupt, with the prosecution system that is inept and selective and a judiciary that is corrupt where is the room for justice in the Indian context?

Indian Judicial system has collapsed totally. Be it the justice delivery system existent in criminal side or civil side, there is no hope for justice for common man. Entire fabric has been exploited and doomed. The condition of Indian judicial system worsened so much that Attorney General of India, Mr. Soli Sorabjee remarked, “Criminal Justice system in India is on the verge of collapse owing to inordinate delay in getting judicial verdict and many a potential litigant seem to take recourse to a parallel mafia dominated system of 'justice' that has sprung up in metros like Mumbai, Delhi etc”.

"Hamlet's lament about the laws delays still haunts us in India and the horrendous arrears of cases in courts is a disgraceful blot on our legal system, especially the criminal justice delivery system," Striking an alarm bell, Sorabjee said: "criminal justice system is on the verge of collapse. Because Justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts.

"This perception has caused many a potential litigant who has been wronged to settle out of court on terms which are unfair to him or to secure justice by taking the law into his own hands or by recourse to a parallel mafia dominated system of 'justice' that has sprung up in metropolitan centres like Mumbai.

"The gravity of this development cannot be underestimated. Justice delayed will not only be justice denied, it will be the rule of law destroyed," he said

The Attorney General said the time has come to ask, "Have the ideals of justice, liberty, equality and fraternity proclaimed in the preamble in grandiloquent language been realised in the working of the Constitution during the last 53 years? Have we redeemed our tryst with destiny? Have fundamental rights been merely in the realm of empty rhetoric or have become living realities for the people of India.”[3]
Apart from that there are number of question which requires answer in the working of judicial process, like;

1. What is the need of Court fees?
2. Why advocates are needed?
3. Why we are bound to pay advocate fees when they are officers of court?
4. Why we have chosen adversarial process of justice?
5. What is wrong with this system?
6. What is the use of locus standi?
7. Why are we bound to pay process fee?
8. Are these provisions violative of Article 14 of the Constitution? If yes, then why there is nobody to take reformative steps?

Mutual appreciation of society of judges and advocates constitute extra constitutional power and this lead to imbalance of power spectrum in society. What we need is, whatever the SC said, don’t take it as gospel of God. We should be able to discover the truth; we should be able to analyze that whether the particular question is in conformity with Fundamental Rights. We should have the ability to identify what is wrong, where? Now, the analysis of governmental functioning is “the executive is failing, the legislature is failing and the judiciary has failed.”

Article 13(2) clearly provided “the state shall not make any law which take away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

Now, question arises, who is the custodian of this right? The answer is President of India under Article 60 and Governor under Article 159. President is not bound to sign the Bill which is unconstitutional, as an obligation is imposed under Article 60 that he shall preserve, protect and defend the constitution and the law. There has to be unity of command to direct state and we have President and Governor for that purpose. Article 14 compels every functionary including the judges to decide according to the provisions of the Constitution.

According to professor Burgess, the idea of complete constitution is like this:
1. Amending power of the Constitution given under Article 368 of the Constitution.
2. Liberty: consist in three modules:
i. Declaration of liberty
ii. Guarantee of liberty
iii. Suspension of liberty under Article 358 and 359

3. Organs of Governmental power: legislature, executive and judiciary.
Professor Bluntschli, added one more,

Presidential form of government has power to choose policy, what he required is only support from legislature.

If one analyze the recent opinion of CJI that judges are not bound to disclose their assests. What the CJI trying to do? He is just claiming unequal protection of law which is not guaranteed under Article 14 of the constitution as he is attempting to take more protection of law; therefore, the equality clause is violated by the judges.

Education and economic development are the only two methods mentioned of correctness under Article 46 of the Constitution. But in the recent decision of SC regarding reservation policy for weaker section of the society is totally a blunder created by it. Nobody has grievance that the weaker section of society should prosper, but it does not mean robbing upper strata of society of their opportunities and development. Forward section of society cannot be pulled down to promote weaker section of the society. The basic funda is “unless there is capacity building from primary level, reservation does not help.”

The answer of all the grievances are given under Article 14 of the Constitution but the judiciary lost the beauty of this particular Article through classification. By and large Courts failed to deliver complete justice. Article 14 talks of restitutive justice and restitutive justice has the touchstone of time count. Moreover, procedural complexities should not hamper the way to justice. As lay down by SC that if you move the High court under Article 226 then you can come to SC only under Article 136. What is this nonsense? Is it the denial to the people that by way of procedural complexities they cannot enforce their rights against the wrong doer? It is highly unconstitutional. Nobody can forfeit your right to move to SC under Article 32 if you exhaust your first remedy under Article 226, because it is violative to the protection given under Article 14. What is wrong here is the manner of working, system is good enough to lead to equality.

The following are some of the shortcomings of the present day Judicial system:
3.2 procedural hurdles in Access to Justice:
Procedural laws are not merely a body of rules meant for facilitating the dispensation of justice on substantive questions. It also represents the value choices of the makers of law. What are their priorities- facilitating access to justice or creating hurdles to access to justice? The answer better understood by everybody. From institution of a suit to the execution of a decree, it is the onus of private individuals, not the government. The lacuna is due to the adversarial process of justice system. Under the said model, there is no duty of the court to ascertain the truth. Adopting an adversarial system leads to number of hurdles in access to justice, especially procedural hurdles in access to justice.

As already mentioned, it does not reflect the fundamental policy choices made in the Constitution of India. Instead it reflects the values chosen by the colonial masters, the British, who were least interested in the plight of Indians and thus placed several hurdles in access to justice by prescribing several technicalities. Though the Supreme Court has said that “procedure is hand-maiden to the substantive rights of the parties”, the practical working of this hand-maiden leads to the perception that the handmaiden has had her revenge by overpowering the queen, i.e., the substantive laws. Procedural laws prescribe the procedure for enforcement of substantive laws however procedural laws have been used, time and again, to defeat substantive rights. [4]

· Cost of litigation:

(Order IX, R2, R5, Order XVI, R2 of CPC) the most disadvantageous feature of judicial process is its cost. The costly nature of litigation compels parties to abandon just claims and defences. The cost of litigation consist of court fees, process fees, advocate fees and the principle of the losing party paying the cost of litigation. This cost system is peculiar to British administration. It was British who imposed such fees for reducing filing of frivolous claims. The motive for this was delay and denial of access to the Courts and also to extract money from the people. In independent India, we followed the same legislation i.e. The Court Fees Act of 1870. Apart from that parties are required to pay process fees like for filing of plaints, written statements, issuing summons and issuing copy of judgment and decree.

Thus, the access to justice in India depends on the financial capabilities of the parties that is unconstitutional and encourages inequality between the parties. Here, ethical count is defeat

Court fees:
With the institution of the suit, a court fee has to be paid. As per Section 35 of CPC, the costs of and incidents of all suits shall be in discretion of the Court and the Court has the full authority to determine the extent of costs. As per Order IX R 2 of CPC, a suit can be dismissed if the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court fee or postal charges[5]. Court Fee is a colonial baggage being carried by the Indian Courts till today. The policy of selling justice is against the constitutional scheme[6]. When seen in the light of the power spectrum as elucidated by Prof. Julius Stone in his book[7], the aspects of power relations in charging a fee for rendering justice is all on negative side. Court fee is low on ethical spectrum as it is against the basic premises of the foundation of a welfare state as envisaged in the Constitution. Since a multitude of citizens are involved in civil litigation process, the head count component is quite high and so is the interest affected component as civil cases cover a broad ambit of interests. The Court fee, being a hurdle in access to justice, has a large degree of influence in discouraging honest litigants who do not have sufficient financial resources to pay the fee from approaching the courts. Since the non-payment of court fee can result in dismissal of the suit, it is very high on coercion band.

The judicial dicta on entry fee hurdle in access to justice are quite interesting. In Central Coal Fields Ltd. V. Jaiswal Coal Co., AIR 1980 SC 2125 observed that effective access to justice is one of the basic requirements of a system and high amount of court fee may amount to sale of justice. The Court observed that

“It is more deplorable that the culture of the magna carta notwithstanding, the Anglo-American forensic system and currently free India’s court process – shall insist on payment of court fee on such a profiteering scale without corrective expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic where equality before the law is a guaranteed constitutional fundamental and the legal system has been directed by Article 39A “to ensure that opportunities for securing justice are not denied to any citizen by reason of economic……….disabilities”.

It is submitted that sale of justice whether for a penny or for a pound is a sale[8]. The basic premise for accessing the court for redressal of an injury is that the State is liable to protect to individual and having failed to do so, it should redress the injury. For this no fee can be charged. It is a settled principle of law that no one can profit from their own wrong. Thus State ought not and cannot profit from its own lapse in performance of duty.

Later in Secy. to Govt. of India v P.R. Sriramulu, 1996 (1) SCC 345, the Court pointed out that it could not be disputed that the administration of justice is a service which the State is under an obligation to render to its subjects. However, yet again, the Court failed to declare the Court Fee Act as unconstitutional.

Advocate fees:
A question now arises, what is the need of advocate fees? Perhaps William Shakespeare is correct when he said, “the first thing we do, let’s kill all the lawyers.”

The money power and influence power comes into play, thus the principle of equality as envisaged under Article 14 stands violated. The adversarial system does not impose a positive duty on judges to discover the truth; he merely plays a passive role. However under Section 57(1) of the Indian Evidence Act, a judge is presumed to know every law, then he is the best person to discover the truth, then why at all, he needed the help of advocates?

Advocates are considered to be the officer of the Court under Advocates Act, they are regarded to assist the Court in the administration of justice. Then why parties are required to pay advocate fees? It is clear cut violative of Article 14, as the court is required to administer justice without the aid of advocates. Even if you want advocates then go for public advocates aided and supported by states. In the process of delivery of justice there is no parity of power. There is need for rethinking or revamping whole judicial system. Time count is very important to determine the scope of Article 14.

· The law of Limitation: (Order VII R6 CPC)

The Limitation Act of 1963 provides for the specific period for a person to effectuate his rights. This bars the remedy after certain period of time but the rights subsists. The Act was passed during British in the year 1793 and was amended and consolidated later. The same was adopted by Independent India, the effect of this is that it denies justice after a period of time, thus invalidating and defeating the time spectrum as a person is denied for his right after certain period of time, thereby denying interest spectrum as interests of such persons who cannot approach to Court thus, their interests get affected and influence of laws, on such aggrieved persons was unable to give remedy. Limitation act basically does not defeat right but basically the remedy is denied. Article 14 guarantees moment to moment protection because the idea of justice under article 14 is restitutive justice. Sanction for prosecution abridges away my right to file suit. If any aggrieved person failed to file suit within limitation time, then wasn’t it is the duty of the court to take judicial notice of this as clearly provided under Article 57(1) of Indian Evidence Act.

· Arrears of cases:
Because delay in legal proceedings, there is huge backlog of cases which are pending, and it take approximately 20 years for a case to be disposed off, this snail pace speed of dispensation of cases throughout the years is effecting the ethical count, as justice delayed is justice denied and also adversely affecting the time count spectrum and interest spectrum is affected when litigant suffer throughout the years.

· Selection of judges:
As far as selection of judges is concerned, according to the text of the Constitution, President has the power to appoint judges, he has discretion to choose and he can consult the Chief Justice of India as well as senior most judges of Supreme Court in matter of appointment. But the SC in SP Gupta and others V. Union Of India [9]held that consultation by CJI means his consent. If consultation means consent then the power spectrum shifted from the President to CJI, and it is entirely wrong interpretation of the Constitution.[10]

The judges are selected according to the political loyalties acceptable to the ruling party. Genetic engineering from the political angle is made secretly operational in the case of judges, and then at the performance level agrarian laws are struck down, welfare measures are whittled down and progressive projects meet thier judicial water loo.[11]

There no system for disciplining corrupt judges. Impeachment is next to impossible. One cannot even register an FIR against a judge taking bribes openly without the prior permission of the Chief Justice of India.

Added to all these immunity to judiciary is the power of contempt of Court, which can be used by the judiciary to stifle public criticism, or even an honest evaluation of the judiciary. This threat of contempt has prevented a frank discussion or a healthy debate on the functioning of judiciary. The judiciary recommended that the Chief Justice should be the final word in deciding whether any information about the Court should be given out or not. Most High Courts have not even appointed a public information officer under the RTI Act. The Delhi High Court has framed rules which prohibit the release of non judicial information about the court, such as purchases and appointments. All this has ensured that the judiciary becomes a law unto itself, totally non transparent, and accountable to none.

What we need is the reformative method of selection of judges. Advocates should not be allowed to become judges nor should be the practise any criteria for the selection of judges.

When one has to analyze the law, analyze the constitutionality of law, because every judicial process is constitutional specific.

There are numerous instances of cases where SC wrongly interpret the provision of Constitution like Joshi V. Madhya Bharat where it was held that place of birth is relevant or in Balaji V. State of Mysore case[12] where caste was given prominence. Here, court indirectly held that caste and religion is important which is wholly unconstitutional. By upholding pro government attitude, courts are cheating the citizens who belong to socially advantageous sections of society but are economically backward enough not to get an opportunity of education. Reservation in the matter practised today cannot lead to the fulfilment of Article 45. We should make the quest to achieve all this on the bedrock of Article 14. Judges have to act strictly in accordance with law, on the matter of Judicial process, the duty of the court is to ascertain the law and apply it and judge the fact in the light of that law, here court has no power to legislate. There is nothing like judges made law.

Indian Judiciary: Tyranny or Activism............is it accountable to anyone?
What exactly is Indian judiciary? Is it accountable to anyone? These are certain questions which require immediate and remedial answers. Peeved at judiciary donning the role of Executive in several cases, Somnath Chatterjee warned of ‘serious implications’ if this trend continued, asserting no one should behave as a ‘super organ’ of the State. Chatterjee said ‘nowadays’ there have been ‘umpteen’ cases where judiciary had "intervened in the matters entirely within the domain of the executive, including policy decisions despite the Constitution according pre-eminent position to the Legislature. [19]
The judiciary, the principal system present in all the societies created, mainly to fight injustice, lawlessness and uphold what is just, right and fair. This system if personified as a human being tends to become corrupt and decay or like any normal human being is born with some imperfections.

These imperfections have off late become the setbacks of the judiciary. Some call the judiciary the temple of fairness and others call it the temple of loopholes. Judiciary is one pious system which has the inherent right to award capital punishment .It has the legal power to bring death to the law breakers; it can punish, isolate and take away the right to a pleasant social life.

The Setbacks in Indian judiciary can be broadly divided in the following ways:

1. Corruption
2. Extent of corruption
3. Delay
4. Other areas of concern like shortage of judges and staffs, lack of infrastructure and funds, political interference, accessibility, misuse of power etc.

Extent of corruption
Let us see the extent of corruption in judiciary:

· 13.37 percent of total households in the country had interacted at least once with the judicial department in the last one year. This means, nearly 2.73 crore households had interacted with the judiciary to get one or the other service

· Nearly 47.32 percent of those interacting with the judiciary had actually paid bribes. This works out to 6.32% of the total households, (approx. 129 lakhs)

· The average amount of bribe paid to the judiciary was estimated to be Rs. 2095/ - (Rs. 2181/- for Urban households, and Rs. 1942/- for Rural households). Therefore the total monetary value of the bribe paid in the last one year works out to Rs. 2630/- crores.[20]

· There was a variation in the amount of bribe paid depending up on the nature of work. On an average bribe for a getting a favourable judgment was Rs. 2939/- while the average bribe paid for getting case listed was Rs. 799/-[21]

There is always a conflict between judicial activism and judicial restraint, the latter jurisprudence adheres by and large, to a legal positivist approach while the former is basically having realist approach.[22]
The word judicial activism, judicial overreached, judicial credibility sounds to be quite synonymous to judicial review and judicial creativity, until and unless the judiciary works with its full competency and honesty. The judges should not in any manner fail to police themselves. It was Hon’ble Speaker Mr. Somnath Chatterjee who had marked that the M.P.’s are working hard to destruct the democracy. But after the happening of several cases of corruption of the judges it’s hard to say the judiciary is working with its full credibility. A learned judge of today marks that when we had joined the judiciary there were less than 20% of corrupt judges and when the time comes towards his retirement after serving the nation for more than three decades he with tears in his marks that today we have more than 80% of corrupt judges in the system. It’s shameful for the nation when we see a sitting Supreme Court Judge involved in the Ghaziabad case, when we see a Chief Justice of a certain High Court as among one of the most corrupt judges in the system. It was the then Hon’ble President Mr. A.P.J.Abdul Kalam, who had refused to elevate such a judge but sooner or later he was there. The Indian Judiciary has become a den of corruption. The extortion of litigants has become a regular business of today’s judicial servants. The whole money extorted from the litigants is beings collected with the Reader of the court. From this booty, lunch is being served for the Judiciary; their monthly households are met. The remaining booty is being distributed among the staff of the judge. The litigants should be protected from this exploitation by the system. It should be the judges who should police themselves without any kind of discrimination on any basis. The real question lies in, whether such a judicial system goes towards a reign of tyranny or just activism. As far as the system is working towards nation building and in national interest it cannot be called as a tyranny but as judicial creativity. Judicial activism can be called as quite synonymous to judicial credibility or creativity. Where judiciary is known as the paterfamilias of the organs of the government and the nation, it should work for the welfare of the nation and its citizens, in order to protect the rights of the citizens. And such a system should not be obsolete in nature; changes, reformations are must for a better today and tomorrow, with a balanced amount of checks over each other.

3.4 Indian Judiciary On the verge of total collapse:

Indian judiciary has become a decaying institution that has no internal mechanisms or will or strength to adapt to the changing times. The judiciary has become almost a law unto itself, answerable to none and under no pressures to reform or change with time. Indian judiciary started as an extension of the colonial regime. British set up a poor copy of the British judicial system as Indian judicial system. The judges (generally British in pre-independence India) were the symbol of imperial power and all the systems and procedures of the court were intended to humiliate the natives. Even after Indians were appointed as judges, any contact between judges and the common people was discouraged. The concept of jury was anathema since it would have involved the local people in decision making process.

Procedures in Indian courts have not changed much during the post-independence period. The pre-independence practice of humiliation of the natives at the courts continues till today. The concept that an accused is innocent till proved guilty and must be treated with due respect and dignity finds no place in Indian courts where only the judge has honour and only the advocates are learned. The alienation of the common man in India with the judicial system leads to his feeling that the court-room is an alien-land almost like a war field where the common notions of morality and ethics have no place. It is not unusual to see in Indian courts persons who are otherwise respectable and God-fearing submit false affidavits and make statements that have no relation to facts. It is often said that 'All is fair in love and war.' In India this gets extended to the court-room where technicalities rather than truth and morality rule. This has led to the Indian courts becoming graveyards of justice instead of being temples of justice. The absence of any relationship between the judiciary and the academic community has weakened both institutions in India. Legal education is in a pathetic state in almost all states of India. For most students, getting admission to a course in law is the last option after they have lost all hopes of entering any other profession. It is not unusual to meet qualified practicing lawyers who cannot even draft an application. Such lawyers depend on the typists sitting in the court premises to draft all documents for them and keep accumulating years of 'experience' that enables them to rise to become senior advocates or even judges.[23]

According to recent survey[24] Indian judiciary is 466 behind schedule giving us a picture of completely collapsed system.

The whole system from lower court to Supreme Court is on the verge of total collapse. The whole judicial process or the judicial working of India is blinking. The condition of the subordinate courts where most litigants seek relief- especially the poor and the weak, is deplorable. There are confusion, pollution and corruption making proceedings insufferable and inaudible. To make matter worse in some courts, Delhi’s Tiz Hazari complex, two or three cases are simultaneously. One by the bench clerk on the left, the other by another clerk on the right and the third the real robbed person, each engaging two advocates in the adversarial system! Truly, litigation at the lower levels is often ‘a tale told by an idiot full of sound and fury signifying nothing’! Alas, the case goes on and at long last the verdict comes, (God knows when)?

The present day judiciary is a lawless law in action with no active social philosophy which is the functional essence of the Constitution. There is no criterion for selection, apart from success at the Bar and/or community factor and/or political connection and/or nexus with High Court judges. There is no manner of public accountability procedure, grievance reported by the public, no monitoring or periodic performance audit and its annual reportage and public discussion by concerned organs. On top of these, ant serious criticism of the cloistered judiciary is contempt of court which legitimates as inhibitive culture against exposure of ‘robbed’ misconduct. No systematic method of the public to report and no open means of proceeding by any authority against a judge whole culpable indiscipline deserve investigation, inquiry and action upon proof.

Another fruitful source of pollution of law and justice in the ordinary Courts is the insufficient facilities for the Bench to catch up with the march of law and the social dimensions of legal developments.

Long ago Lord Macaulay wrote:
“What is administered is not law but a kind of rule and capricious equity. I asked an able and excellent Judge lately returned from India how one of our zilla courts would decide several legal questions of great importance—questions not involving consideration of religion or caste—mere questions of commercial law. He told me that it was a mere lottery.”

“If Justice is a human right, and it is, then easy and inexpensive access to judicial justice is a fundamental precondition.”

Rigid procedural laws and price tag for crucial entry by way of court-fee are inhibitions which run counter to the concept of equal justice and lead to jurisprudence of obstructive technicalities. Simplification of laws of procedure is as easy as it is imperative. The Civil and Criminal Procedure Codes are complicated and arcane for common apprehension. They promote dilatory zigzagging and expensive paper logging. Processual sophistries and forensic casuistries are generated by the forms and formularies prescribed in these legislative mystiques and lacunose techniques.

There is an English jingle about legal drafting which applies a fortiori to Indian law making:

I’m the parliamentary draftsman
I compose the country’s laws
and of half the litigation
I’m undoubtedly the cause

The judicial Church of India needs a powerful protestant movement with constructive intent. A planned process of development in necessitous and the planning commission must set up a Judicial Wing for reform which is the need of the hour.

The pathology of the higher judiciary must be frankly diagnosed and the displeasure of the souls on the High Bench should not detract from the identification of the disease. Experiments with untruth and playing hide and seek with the grave issues on the alibi that if judges are exposed institutional demoralization may weaken societal credibility are escapist and disingenuous. Should we conceal the shocking shortcomings of the court system from the sovereign people of the Republic merely to keep up false appearances of justice incorporated?[25]
As Anatole France put it, that “justice is the means by which established injustices are sanctioned”.

Extreme critics including some jurists and social activists told that “for much too long the law persons—judges, lawyers and jurists- everywhere in the world successfully managed to convince the people of the truth of their lies concerning the nature of the judicial process.”

The court is dead; long live the court, is a slogan of despair. This shall not be. Many of the rulings of the court in a la Land Reform Cases, Privy Purse case, Bank Nationalization Case, Golaknath Case and cases for nocturnal bail for the noveau riche et al has shaken institutional credence, the Bhopal Gas Victim case sent shock wave adverse to the court vis a vis its social justice stance. The voices and noises raised then by the jurists, sceptics, critics, social scientists and investigative journalists shut down the myth of judicial justice and brought out the truth of its contrary slant.

In the words of Lore Hewart;
“It is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly undoubtedly be seen to be done.”

A judge is judged by high standards since the judiciary is people’s fiduciary, and what might be ignored in a politician is regarded as ignoble as a judge.[26]
The whole structure of our judicial process is crumbling.

Special note was taken of the fact that in many cases the cc.

The concept of expanding universe is not confined to astronomy alone. There is fast expanding judicial firmament. The expansion of judicial world sometimes reads on fields occupied and reserved for others. It is very necessary that Supreme Court act with self restraint. Let us remember the adage, “power corrupts and absolute power corrupts absolutely”.

Arrears Eradication Scheme
Govt. of India, Ministry of Law and Justice has created a fast track courts which is limited only to the Session Court Cases and also having practical problems which restrict it to work in all states. To overcome this problem the Committee is in favour of working out an Arrears Eradication Scheme for the purpose of tackling all the cases that are pending for more than 2 years on the appointed day.

Use of technology
1. A review of court record handling and introduction of modern tracking methods can help eliminate much of the petty corruption, existing in lower courts.

2. Technology can be used to help layman understand laws and information on citizens’ rights, spelling out in simple language how to start a business, protect land rights or get a divorce. (e.g. Vietnam, Your Lawyer CD ROMs)

3. Practical measures should be adopted, such as computerization of court files. Experience from Karnataka suggests that the computerization of case files helps in reducing immensely the workload of the single judge. It also speeds up the administration of justice.

4. A video recording of all the proceedings in the courts should be maintained.
Burden of Proof
In India, Adversarial System is followed so the standard of proof laid down by our courts following the English precedents is beyond reasonable doubt in criminal cases. It is suggested that it is difficult to prove for the prosecution that the accused person is guilty beyond reasonable doubt. In several other countries Inquisitorial System is followed where the standard of proof preponderance of probabilities is on the accused. It is suggested that now the time has come to change the Adversarial System into Inquisitorial System. It also recommended that the burden of proof should be of degree which lies in-between the beyond reasonable doubt.

Reducing the Gap
1. Judges need to be more responsive.
2. They must be subjected to a judicial review.
3. They are obliged by the law to give reasons for decisions, i.e., it must be speaking order which complied with the mandate of Article 14.
4. They must write judgment and not merely announce it. There have been instances when judgments were written after a long gap.
5. They must follow a code of conduct.
6. There must be regular inspections.

Associations to check Corruption
1. The law societies and bar associations must also be encouraged to take stern action against their members who indulge in corrupt activities.
2. Set up a public watch body, comprising of persons of unimpeachable integrity, to keep an eye on the judges and the judicial system.
3. Review and public hearing of certain type of cases which are pending for long.

1. High court judges are now drawn from either the Bar or subordinate judiciary. Firstly, an Indian Judicial Service (IJS) should be created. Judges may then be appointed through nation-wide competitive examination. These officials could form the backbone of the subordinate judiciary at the level of District Judges.

2. Most of the High Court Judges can then be drawn from this cadre of competent District Judges.

3. There should be periodic training programs for judicial officers by practitioners, lawyers and senior judicial officers. Secondly, the proposed National Judicial Commission (NJC) should have the powers not only to recommend appointments, but also to remove judges in higher courts.

Justice Delivery System In France or inquisitorial mode of justice:
The justice delivery system in France is the best. If imitation can be regarded as indication of approval, the popularity and acceptance of French Judicial System present such an approval in the higher degree.

Courts in France like any other Court which follows inquisitorial system moves on the presumption of “Guilty until proven innocent”. The presiding Judge actively, often vehemently and acidly, participate in the court room questioning of witnesses as well as the accused- who cannot invoke the Anglo Saxon privilege of refusing to take the stands on the grounds of possible self incrimination i.e. he does not have a right to maintain silence which is given in adversarial system. The judge of the court combines the power of the prosecutor and a magistrate but he is not a member of a prosecution per se. His function is to determine truth on behalf of the state, with aid of the police. The powers of the judge are very broad which helps him to reveal the truth. He may call witnesses and pester them. The whole process, from the starting of trial, investigation, examination of witnesses, thier testimony, judges play a very important role because they themselves assist in all the procedures.

Therefore, it can be said that criminal court in France is investigative rather than the battle between two opposing parties, which happens in adversarial system. According to one legal authority such battles denote a bitter adversary duel rather than a disinvested investigation.

Administrative Justice in France: in administrative Courts such as Conseil d’Etat at litigation, the proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing, the plaintiff writes the court, which asks explanations from the concerned administration or public service, which answers; the court then may ask further details from the plaintiff. When the case is sufficiently complete, the law suits open in courts; however, parties are not required to attend the court in appearance.

French justice delivery system has become envy of the world. As the Sanskrit shloka goes “yukti uktam” which means “useful idea can come from anywhere”. Then a question arise, what’s wrong in taking idea from France?[30]

4.1 judicial Process under the Indian Constitution

Judicial process is basically the path or the method of attaining “justice”. Justice is the approximation of the ‘is’ to ‘ought’. Judicial power is involved in the legal ordering of facts and is under the obligation to approximate ‘is’ with the ‘ought’. This ordering is nothing but the performance of administrative duties. Supremacy of law implies that it is equally applied and nobody is above the law. Everyone is equal in the eyes of law so that a level playing field is created in order to strengthen parity of power.

Indian Constitution adopted this principle in the form of Article 14 and the Preamble which provide equality of status and opportunity. Thus, Constitution ensues to establish parity of power which requires that every person must be on the same plane. The wording of Article 14 made it an ‘umbrella’ Article under which all other rights, both constitutional and statutory, find protection. This is so because all laws treat every individual with equality and the protection of laws is extended to all without any discrimination, then all others rights are automatically enforced. This duty to extend equality before the law and equal protection of the laws has been casts on the state.

Article 256 makes it obligatory upon the executive of every state to ensure compliance with the law made by Parliament and any existing law which applies in that state. The Union executive is empowered to give such directions to a state as may appear necessary to ensure the compliance of the laws by the state executive. Thus, according to Article 256, it is the duty of the executive to ensure compliance with the laws and that too in a manner that satisfies the mandate of Article 14.

Article 256, is in fact, the reflection of the true tradition of the Rajadharma Principles which regarded it the responsibility of the executive to deliver justice through affirmative executive action to ensure strict compliance with the applicable law. Article 256 states the whole mechanism to ensure the implementation of every law by the executive power. It thus, envisages the delivery of justice through administrative mode. The administrative mechanism of providing justice as promised under Article 14 is provided in Article 256. It is well established that the judiciary is the outcome of the dissatisfaction of the working of the administrative machinery. The need for a dispassionate judgment of the executive action has given rise to judiciary. Essentially, the judiciary while resolving disputes is ensuring implementation of laws. Thus, its functions are basically administrative in nature. Law is always based on the policy when the judiciary implements or reverse the action of the executive, thus, judiciary acts as a policy controller. This view has been endorsed by Karl Lowenstein who held that adjudication is basically execution.[31]
But the present Indian judicial system is by all accounts unusual. The proceedings of the Courts are extra ordinary dilatory and comparatively expensive. A single issue is often fragmented into a multitude of court actions. Execution of the judgment is haphazard, the lawyer seem both incompetent and unethical; false evidence is often commonplace; and the probity of judges is habitually suspect. Above all, the courts often fail to bring the settlement of disputes that give rise to litigation. The basic reason for this state of affairs is that present mode of access to justice through courts operating in India is based on Adversarial legalism. This is where the power structure given in the Constitution has been distorted. As per Article 53(1) the executive of the power vested in the President, who has taken the oath to preserve, protect and defend the Constitution.

Therefore, we can say that effective justice dispensation through the Courts requires three elements: access to courts, effective decision making by judges, and the proper implementation of those decisions because the primary responsibility of judiciary is policy control and dispute resolution is only incidental to it.

Conclusion and Suggestions
How to reform our judicial process
In today’s era, it becomes crystal clear that our judicial process is on the verge of total collapse. The adversarial system which Indian legal system follows has failed to answer the test of Article 14 read with Article 256 as it is required party must do everything from paying court fees to execute the decree which actually is the task of the state.

Constitution is the supreme law of the land governing conduct of government and semi governmental institutions and thier affairs.

In ancient India king is the fountain head of justice. Sage Yajnavalkaya declared that “the king, divested of anger and avarice, and associated with the learned should investigate judicial proceedings conformably to the sacred code of laws”. In ancient India, legal procedure is governed by the principles of Rajadharma. All the Dharmas merged into the philosophy of ‘Rajadharma’ and it was paramount Dharma. It is a classic example of trans-personalized power system.

The adversarial system lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover the truth in the inquisitorial system. When the investigation are perfunctory and ineffective. Judges seldom take any initiative to remedy the situation. During the trial, the judges do not bother if relevant evidence is not produced and passive role as they don’t have any duty to search for the truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is therefore, necessary to strengthen the adversarial system by adopting with suitable modifications some of the good and useful features of the inquisitorial system.

How to reform judicial process?

An epiloguic thought repeating what has been said earlier may be needed to strength my submission that the court will commit blunder if it does not guard its reputation more seriously. A post script in this prospective, may drive home my point, treating the Bench and the Bar as a complex agency of public justice. A learned Judge mild in his words, who retired last year from the Supreme Court, wrote with restraint t o a former colleague of his still on the High Court, what makes poignant reading: “the judiciary is sinking. The destruction is from within; it is for judges like you to restore the fast disappearing credibility of the High Courts and the Apex court.”

Equal protection of the laws is the fundamental right of the citizen which has a forensic dimension and procedural projection. The obligation of every court from the summit to base is to afford the same facility for hearing of case to the rich and the poor, to the dubious billionaire to the bonded labourer. Now, there exists a mutual appreciation of society between judges and advocates which led to the failure of justice delivery system. The judiciary is the fiduciary of people’s justice and has accountability to the country for scrupulously equal judicial process.

The crisis is not resolved by some martyrs from the class of advocates courting displeasure by exposure of oblique events but by a people’s movement which will compel the judges and advocates against the privatisation of judicial process. Your monopoly obligates accountability and if there is culpability it cannot be gagged by contempt proceedings. In our system, both the robe and the gown must remember is that the court is what the court does. The new dimension of justice delivery and new vision of alternative justicing will have to be explored and executed if the first promise of the Constitution were to be actualised. Therefore, today, in adversarial system of justice, what we need to reform are:

· Court fees to be abolished:

The purpose of justice is delivering the promise of law and hence the role of state is not merely limited to establish the judicial institutions but also to fulfil the expectations of the people which they attached to the state while conferring role and seat of power. To charge fees for justice is like sealing the promise of law and flouting the constitutional duty of state to provide justice to the people at thier door step, merely laying down the foundations of judicial shops and washing thier hands of from the process of justice delivery is not warranted on the part of the state. To get revenue for the enforcement of rights and to charge it in rigorous ways, failure to pay would entail the justice not access able to because one cannot afford it in terms of money, is the misery and apathy, the courts in India are continuing with. The proper course would be abolition of court fee because it seriously undermines the parity of power principles as it places the richer one in advantageous position which offends the spirit of Constitutional goals.

· Advocate fees to be abolished:
As it is clearly provided under the provisions of Advocates Act that advocates are the officers of the Court, then why the clients are bound to pay hefty fees to lawyers for contesting thier cases. There should be provision for public advocates which are available to everyone and should be paid by state.

· Selection of Judges:
CJI committed blunder when in one of the most controversial case he held that consultation by CJI means his consent. Here, by this observation the power of President is reduced to zero and whole spectrum of power given under the constitution is disturbed. The judges should be appointed by President only with the consultation of CJI and not by his consent.

Moreover, the provision of advocates becoming judges after certain required years of practise should be abolished. Judges and advocates are different profession and they should not be intermingled. There should not be any mutual appreciation of society.

· Adversarial system to be abolished:
The present adversarial system should be abolished and replaced with inquisitorial system of justice. Judicial process is essentially deductive reasoning and it is to tell authoritatively what law is. The judge should take judicial notice of all the law. The judge is to investigate the case before him, by approximating ‘is’ to the ‘ought’, after the parties present thier case.

By virtue of Article 14 r/w 256, there should be an affirmative action by the policy implementing organ. It should protect the citizen with thier affirmative action, just like the ancient Indian system. The present Indian legal system is continuing the colonial legacy where the ends justify the means, but since now, we are living under the umbrella of a controlling Constitution, the means should justify the ends.

· The Limitation Act should be struck down:
The Limitation Act should be stuck down as unconstitutional since it is violative of Article 14. Under Article 14 there is no distinction between state action and private action. If any person fundamental rights are infringe, how can the state fix a time limit to curtail the right to move the court for justice. It cannot withstand the test of Article 14, or the six counts of the power spectrum. Hence, Limitation Act, doctrine of Delay and Laches and procedural hassles are undoubtedly unconstitutional.

· Judges should not have any immunity:
The judges should not have any immunity because the functions of a judge is twofold; the judicial function is only to state authoritatively what law is. All others are administrative functions. The fundamental law is the Constitution and it is the only supreme authority. If judges committed any negligence or there is dereliction of duty on thier part, then such judges should be punished under Section 166 of the IPC because they are the public officers and hence liable for punishment for negligence of duty.

According to Rajadharma principles, the king himself is liable to be punished for an offence, one thousand times more penalty than what would be inflicted on an ordinary citizen. Perhaps, it is high time that this principle is getting working especially as under the Constitution none is above the law and there is no immunity for crime. If judges of the Superior Court in China and Japan can be prosecuted and punished for violations of law, why not in India which has a basic structure command to ensure equal subjection of all to the law.

· Delays should be avoided:
The delays in our legal system are well known. There 30 million cases pending in various Courts. The average time span for dispute to be resolved through the court system is about 20 years. Litigation has become a convenient method for avoiding prompt retribution by many people on the wrong side of law. The Bible says that the path to hell is paved with good intention. The legal system is meant to punish the criminal and to protect the law abiding citizens. Many a time, the criminal exploits the legal process itself to escape punishment.

· Supreme Court to have Benches throughout the country:
Article 130 of the Constitution provides that the SC shall sit in Delhi or in such other place or places, as the CJI may with the approval of President. From time to time appoint. This provision of the constitution has not been applied so far. If the SC has a seat on other places, that is seat in every state then it will be relief to the aggrieved and justice will be assessable to them, which will result in reduction of cost of litigation and will cause less hardship to the litigant.

· No presumption should be raised in favour of anyone:
The presumption is always in the favour of constitutionality of statute, and it is a gross misapplication of a justice as it tends to presume the preponderance of power in favour of one party and tilts the balance unjustly. This totally upset the balance of parity of power, which is ensured through the guarantee of “equal protection of laws” under Article 14 as well as Article 13 (2) and (3) of the Constitution, respectively. The burden of justifying the constitutional validity of the law as well as the fact that the state action was in accordance with such law should be on the state, and not on the person who challenges its constitutional validity. Asking the injured party to prove the wrong or injury suffered destroyed the guarantee of equal protection of laws. Such an opinion of the part of court is extremely low on the ethical count of the power spectrum.

· Judges should play active and not passive role while deciding cases:
Article 14 of the Indian Constitution made it obligatory on the state to provide justice to all at the door step. Thus, the Indian Constitution necessarily envisages inquisitorial mode. So, the judges should go a mile extra in deciding cases as the judges supervising the cases are independent and are bound by law to direct thier inquiries either in favour or against the guilt of any suspect and play an active role while deciding cases.

· Accountability of Judges:
In India, the judiciary is separate and independent organ of the state. The legislature and the executive are not allowed by the constitution to interference in the functioning of the judiciary. The functioning of the judiciary is independent but it doesn’t mean that it is not accountable to anyone. In a democracy the power lies with the people. The judiciary must concern with this fact while functioning. The high courts have the power of control over the subordinate courts under article 235 of the constitution of India. The high courts have the power of control over the subordinate courts under Article 235 of the Constitution of India. The SC has no such power over High court. The CJ of High courts/ India have no power to control or make accountable other judges of the Court.

· Reluctant approach of Supreme Court to accept petition under Article 32:
The rule made by SC under article 145 laying down the procedure to be followed by the SC in performing its functions involves lot of technicalities. It is the duty of the SC to grant relief under Article 32 and it is mandatory as it is obvious from the word “the Supreme Court shall” in Article 32. But the SC is reluctant to perform its functions.

To conclude one can say that whatever may be the system the procedural laws must be minimum, simple and must be litigant friendly.
[1] Choudhary V.K.S., “The Ivory Tower: 51 years of Supreme Court of India”, Universal Law Publication Pvt. Ltd. 2002 Edition, P: 12.
[2] Krishna Iyer, V.R.; Justice At Cross Roads; Deep And Deep publications; Chapter: 8 Glasnost and Perestroika for Judicial India; p:128.
[3] Rao, H.S.; Indian Justice System on the Verge of Collapse; www.expressindia.com; Thursday, June 12, 2003.

[4] Lowenfeld is perhaps right when he points out that when we observe procedural laws, “we see not procedural solutions to substantive problems, but procedural obstacles that may or may not have been installed on purpose.” Lowenfeld, Andreas F, Elements of Procedure : Are they Separately Portable, American Journal of Comparative Law, Vol 45, 1997, pg 1.

[5] A plaintiff is supposed to pay the cost of serving summons. This is another lacuna and a procedural hurdle as it is the duty of the State to serve summons.

[6] As per Article 256 of the Constitution, the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament and any existing laws which apply in that State. Since it is the States which have the real contact with the citizens, ensuring compliance with every law is the responsibility of the State. It is [7] Chapter 13, pg 598-99
[8] The Court in the given case further observed that
“The State, and failing it someday, the Court, may have to consider from the point of view of policy and constitutionality, whether such an inflated price for access to Court is just or legal.” The above observation is flawed on two premises:

(a) Courts are a part of the State under Article 12 of the Constitution;
(b) Access to justice should not be put up for sale, whether on inflated or deflated prices.

[9] AIR 1982 SC 149: (1981) 2 SCJ 85
[10] Landmark judgments, Universal Law Publishing Co. 2008, P:45.
[11] Krishna Iyer, V.R.; Justice At Cross Roads; Deep And Deep Publications; Chapter-8; “Glasnost And Perestrioka for Judicial India” P:135.
[13] AIR 1954 SC 41
[14] AIR 1992 SC1858
[15] AIR 1992 SC 248
[16] AIR 1950 SC 27
[17] Pandey, J.N.; Constitutional Law" target=_blank>Constitutional Law Of India; Central Law Agency;42ed,2005; PP:364.
[18] AIR 1978 SC 597
[19] Is Judiciary Accountable to Anyone? www.expressindia.com; posted on April 26, 2007.
[20] India Corruption Study, to improve governance, Voll.II (Corruption on Judiciary), as study conducted by the Centre of Media Studies, http://www.cmsindia.org/cms/events/corruption.pdf.
[21] Bala Nikit, Set Back In Indian Judiciary; www.indlawnews.com; posted at Sunday, july 19, 2009.
[22] Abraham J. Henry; the Judiciary; The Supreme Court In Governmental Process; Brown And Benchmark Publications; 9th Ed. P:77.
[23] Joshi, V.T. and Anil Chawla; Indian Judiciary and The Review Of The Constitution Of India; Article available on www.indlawnews.com
[24] International Business Times; Article can be read on http://in.ibtimes.com/articles/20090214/hidh-court-delhi.htm. Posted on 14 Feb 2009.
[25] Krisnna Iyer,V.R.; Justice At Cross Roads; Deep And Deep Publications; Chapter-8 “Glasnost And perestroika for Judicial India”;PP:129-133.
[26] Ibid; PP: 138-141.
[27] People’s Democracy (weekly); Towards the Movement for Judicial Reforms; Vol:XXVII, NO.33; August 17,2003.
[28] INDIA:Without Drastic Justice Reforms Republic is Meaningless; Article posted by Asian Human Rights Commission; Jan 25,2007.
[29] Asia Pacific Judicial Reform Forum; Searching For Success In Judicial Reforms; article by Mohan Gopal, Development and Implementation Of Reforms Initiatives to Ensure Effective Judiciaries; Oxford University Press, 2009; P:46.
[30] Ideas for reforms are taken from the reading material provided by T.Devidas.
[31] Karl Lowenstein has written book “Political Power and the Governmental Process”, published by The University of Chicago Press.

pertinent to mention here that under the Indian Contracts Act a contract is also treated as law binding the parties entering the contract. Since it is the State’s duty to ensure compliance with law, any violation of law signifies lapse of duty on the part of the State. To rectify this lapse, the Courts are supposed to restore status quo ante. Charging entry fee to a rectification mechanism like Courts is incomprehensible as it is not in the interest of the private individuals only that law should be adhered to but also incumbent on the Government that laws should be properly complied with.

Authors contact info - articles The  author can be reached at: pallavighorpade@legalserviceindia.com

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