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Published : June 25, 2010 | Author : drpremnath
Category : Law - lawyers & legal Profession | Total Views : 5095 | Unrated

  
drpremnath
Dr Prem Nath Associate Professor Deptt. of Laws Panjab University Chandigarh
 

Justice Delayed Justice Denied

I agree that people are losing faith in judiciary. It is mainly because of long delays at all points, the reluctance of all the judges to give the judgments and the inevitable adjournments. That is why people are approaching the mafia which believe in out summary justice.[1]

Law is a noble profession. Lawyers and Courts have always been the last refuse for the helpless and the harassed litigants. But for late there is erosion of people’s, trust and faith in the Indian judicial system. The main cause for such erosion is corruption and delays. The allegation of corruption is the first cause for the deteriorating functioning of the judiciary.

The foremost reason of delay is corruption within the judiciary. For several years there had been murmurs of discontent with functioning of the superior judiciary. There had been heard coming from the authentic sources and even from seats of authority. For example, a former Hon’ble Chief Justice of India, Justice Venkataramiah, after retirement, talks of High Courts judges going to their lawyer friends or to embassies in search of drinks. Another former Hon’ble Judge of the Supreme Court, mentioned various methods of judicial corruption also it is alleged that occasionally costly gifts are given to the Hon’ble judges of the Higher Judiciary by Learned advocates and lavish parties are arranged for Hon’ble judges.

A retiring Hon’ble Chief Justice of the Patna High Court indicated the judiciary in a sweeping manner. The Haryana Chief Minister applied for the transfer of a case, in which he was a party, from a particular Division Bench among the judges. Sometime ago, an unedifying fired raged in the Madhya Pradesh High Court, with the Hon’ble judges pitted against their Hon’ble Chief Justice. It had to be quad by the Apex Court. Not only this also the judges of the Punjab and Haryana High Court pitted against the Chief Justice of the High Court and 25 judges of the High Court went on one day casual leave to protest against the Chief Justice.

A few years ago the Law Ministry inundated with complaints of corruption among four judges, felt compelled to propose a 15 point model code of conduct for judges. In 1995 four judges of the Bombay High Court were transferred on the complaint of Bar Association there. At a meeting of the Bar Association at Chandigarh, held in 1993 with the Hon’ble Chief Justice of India and other judges attending it, allegation of corruption identifiable judges were forcefully made and the Chief Justice announced soon that one third of the Hon’ble judges in a High Court should be from outside the State and ordered the transfer of dozen of judges, at that time the Chief Justice contended, that would finish the corruption. It is submitted with respect that all the newly appointed Hon’ble judges appointed in the Punjab and Haryana High Court are working in the High Court of Punjab and Haryana. Also kins and spouse of the Hon’ble Judges[2] practice in the same Court. “Cash at Judge door step” of the Punjab and Haryana High Court corruption case 2008 is still touching the headlines of media. The Panjab University Teachers in which the Hon’ble Court issued a small order and but on the next day the whole judgment was published in the newspapers. A question which was unanswered. The whole judgment was delivered months after and the copy of the same was made available to the litigant about four months later. This put a question mark on the impartiality of the judiciary.

In Sheilu Barse’s case, the court had repeated, in his own words, what five judges of the Supreme Court had said on the very narrow of independence: “If the allegations are true, obviously it would be to the benefit of public to bring these matters into light”.[3]Many questions are raised on the verdict of Bhopal Gas Leakage the answer of which lies with the Judiciary.

Judgment of the Supreme Court recognizing, though only indirectly, that things were amiss at the level of High Courts, a two judges Bench, deciding a public interest petition, laid down once “in house procedure” for the disposal of the complaints of Bar Associations against High Court judges. The petitioner had prayed for a restraint on the Bar Association’s demand for the resignation of the Chief Justice of the Bombay High Court because the facts had not been verified by the association before making the demand.[4] In citing the petition, the Apex Court laid down guidelines for the Bar Associations in the matter of their complaints against the judges and Chief Justice of High Courts. Bombay High Court in a case held that truth is no defence in contempt of Court cases. The Court observed that complaints against judges should be made by Bar Association after due verification of facts: the complaint should be made to the Chief Justice of the High Courts concerned and not through the press. Also, the association making the complaint should await the Chief Justice’s decision in the matter. If it is the Hon’ble Chief Justice of a High Court whose conduct is unacceptable, for any reason, the complaint should go to the Chief Justice of India, the symbol of the country’s judiciary and his decision in the matter should be similarly awaited.

With due respect, the judgment has to be fulfilled for its inadequacies. It dealt only with the complaints that the Bar Association may have to make. But citizen’s right to complaint was not considered, much less conceded its citizen may well have bona fide concerned for the health of the judiciary and may like to point out its failings. Also, Article 51A (agrejoin) on citizens the duty of upholding, the ideals of the Constitution and respecting its institutions Lord Donning has said in one of his famous judgments that:

“Even the Supreme Court has spoken in a similar opine in some of the judgments, which have not been suppressed”.


The judgment under comment has not touched the problem in its full dimensions. It deals only with the High Court Hon’ble Judges. What about the judges of the Apex Court? A former Solicitor-General who should know, recently referred to the lapses of some Hon’ble judges of the Supreme Court. The conduct of Hon’ble Justice Ramaswami, for example, was a national scandal. It also well known that some functioning judges of the Apex Court undermine the prestige of the judiciary by paying Court to the Chief Minister of the States they themselves came from. Judges are appointed from the ruling class said Justice V.R. Krishnan Iyer.

The judgment may also be faulted for not taking into account the strong possibility of erring judges laughing away the “in house procedure” they knew that constitutionally no body control them without being impeached by the Parliament, however improper their conduct may be. Hon’ble Justice Ramaswami highly contentious attitude towards the enquiry committee composed of eminent judges, must serve as warning in this connection.

Parliament’s failure to Justice Ramaswami in 1992, the Bombay resignations of 1995, the continuing mystery of the Mysore High Court’s Hon’ble Judge’s sex-scandal with the Supreme Court refusing to release the report, Hon’ble Justice Arun Madan’s resignation from RajasthanHigh Court and the arrest and release of Hon’ble Justice Mukherjee in the Delhi Development scandal have divasting effect. Recently charges of corruption have been leveled against Dina Karn Hon’ble Chief Justice of Karnataka High Court on his appoint to the Apex Court of has left many questions unanswered for those who level the allegation why these allegations are made at the time when he was going elevate Apex Court.

Another reason for the delay is also conduct of thehonourable judges. The judges took the files to their home which either did not returns to Court or returned after a long time. Also some times difference of the judges come into light even on the Bench. Also some time Judges show their inability to sit with their colleagues when the date of hearing is on the next date. The example is Reliance caseJudge of of the Apex Courtshow its inability when is the date of hearing was the next day.

The decline in the ambit of judges true remarried, by and law unchecked since then, political, regional and commercial factors have a role even now once in a while, a few deserving appointment made consideration other than merit have generally come to prevail in many cases. Many fingers are raised on the refusal of elevation to the apex Court to Honourable Chief Justice of Delhi High Court.

A judge of the Gujarat High Court slaps on the face of his colleague while sitting on the bench and the Apex Court have to interfere by transferring on one of them to other states. Also some time the judge show their inability to sit on the bench. Recently in Reliance case one of the judge of the Apex Court showed its inability to sit on the bench with his colleague when the hearing of the case was on the next date. It has been seen that in more than 60% cases the cause of action is frustrated due to non-delibery of judgement in time.

Generally, for making appointments to the High Courts, the Chief Justice of a High Court initiates the recommendation and sends it to the Governor, the Chief Minister is consulted. There is the recommendation is sent to Government of India, the Law Ministers send it to the Chief Justice of India.

One of the most talked about judicial issues to present in the appointment of the Supreme Court and High Court judges. I feel it was a retrograte steps to have conferred the power appointing judge to the Court only to the judiciary. Also many questions are raised on. the refusal to appoint Hon’ble Shaw Chief Justice of Delhi High Court to the Apex Court. For all its during the time when the executive had primacy of the judiciary on the issue, is a step in the wrong direction it is a unhealthy development.

The other reason for the delay in justice is the century old procedure adopted by the judiciary of this country. Procedure resulted in lakhs of pending cases, in the higher judiciary and cross in the subordinate judiciary. Further, judicial officer of the subordinate judiciary alleged that there is a nexus of learned advocate and lower staff of the Court Judges transfer after every three years but there is no transfer of the lower staff. So, the lower staff charges from the litigants through the learned advocate. Further, in criminal cases due to this delay the witness hostiles and justice could not be delivered. In the high profile cases. For example, in the Badal Corruption Case 20 witness hostile and public prosecute showed his inhabits to argue the case and the judge dealing with case harassed by withdrawing the security . Delay in handingover the house to the judge on the transfer as the accused wore, Chief and Deputy Chief Minister of the state. Advocate Genral is seen looking after the Badals case. It is pertinent to mention that the Criminal Procedure Code allows bail and also put the condition that the accused will niether influence the witness nor in the document relating to the case.[5] Gujrat Roit Case is also one example of it. In Ruchika case victim commit suiside while waiting for justice as it took 19 years even to enter F.I.R. as also High profile was the accuse.

Also, it is alleged that there is a nexus of Hon’ble judges and politicians. Generally, only throse Hon’ble judges are appointed on commission who favour them. Also judges on commissions are appointed on their retirement. So they are more interested in their extension of the term rather than submitting their reports. The commission of the demolition of Babari Masjid at Ayodhya has set a record in the matter of extending their terms.

Bar has not lag behind in the delay of judgements. In the lower courts the learned advocate charges from the litigants on every hearing. So they are more interested in dates rather than delivery of the judgment. Strikes by the Bar Association are the rule of the day. There is also the possibility of Bar Association, contemptuously violating the guidelines. They are composed of learned lawyers of different ages and temperaments. Some Associations have been known to have run berserk in the past. Some years ago furious learned advocates danced on the tables in the Court room of the Chief Justice of Delhi High Court, and disrupted the functioning of all other judges. In the present ambience of in discipline, repeat of such rondism cannot be rule out and it cannot be expected the early deliver of the judgements in these conditions. Even the “striking arm” of the judiciary supplied by the contempt of Court Act may not be able to control wide spread hooliganism.

Time and again inadequacy in the number of judges in the courts also connected upon as a reason for the delay in justice. Not only the Law Commission the standing committee to Parliament made observations in this regard, even the Chief Justice of India has done so on more than one occasions. Even the power committee Punjab and Haryana High Court in 1997 in Ved Paul Gupta case observed:

Justice cannot continue to the low priority. After all, it is a perambulatory promise to the people.

The Court directed the states to create more posts of and fill. Only the facts can tell how far the states has comply the order of the Hon’ble High Court.

Unwept and unsung, India’s sub-ordinate courts are the cinderellas of its judicial system. A top heavy obsession with Supreme Court and High Courts has led to total neglect of the subordinate courts, which represent the real face of Justice for the common man. The conditions of work in the subordinate Court are simply appalling and it is a miracle that they continue to dispense with Justice nonetheless. This is also the reason for the delay in Justice.

“In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery Rusco Pound said were not good enough in 1906. In the super marked age we are going to operate the courts with Cracker Barrel Coiner Grocel methods and equipment vintage 1900”.[6] Also, on the condition of anonymity it is alleged by Hon’ble judicial magistrates that whenever the Hon'ble Judges of the High Court visit for inspection, they accompanied their wives , huge shopping is made by the wives and the bills are left with the magistrates for payment though they tried to pass the bill to the SHO of the area. But seeing, the amount high the concerned SHO also show their inability to the bill and the magistrate have to pay the bill from their own pocket.

That things were amiss the High Courts and the judiciary below the Apex Court should be accountable was judicialy recognized, the judgment has not received adequate attention from the quarters concerned; either from Bar associations nor from those interested in the citizens freedom of speech.

Now the feeling has started to develop that except for dates, you get nothing from the courts. This is because Justice is being delayed and denied due to heavy pendency and workload in the Court. The ultimate reason for any type of judicial discipline is to maintain public confidence in the judiciary. The logic behind this principle is simple. A legal system can function only as long as the public accepts and abides by decisions rendered by the courts; the public will accept and abide by these decisions only if it is convinced that the judges are fair and impartial; anything that tends to weaken that conviction should be avoided. In other words, justice must not only be done, but must also appear to be done. For this regard, judges are commanded to avoid not only actual impropriety but also the appearance of impropriety in all of their activities.
--------------------------------------------------------------------------------
[1] Justice B. Kanwar Lentip. Former siniormost Judge of the Bombay High Court.
[2] Punjab and Haryana High Court has 16 “uncle judges”, The Tribune, May 23, 2010.
[3] AIR 1952 SC 148.
[4] The Tribun, December 14, 1995.
[5] Sessions Judge Basu victimization by administration – had earlier heard cases against adals. The Tribune, March 16, 2010.
[6] Justice at the Crossr road, Iyer V.R., Krishna.

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




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Article Comments

Posted by lokesh on March 18, 2011
very good site for legal advice

Posted by hitender on March 17, 2011
supreme court guidline if any person gives bribes to govt employee for any work but employee is not authorise for this work so no corruption case will filled against him(please provide me view of supreme court of india )

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