24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

Introduction:

In India, the judiciary is called upon to play a vital role. It imparts justice to the people and safeguards the
rights and liberties of the people.

Development of T hought:

The judicial system is the corner stone of India's democratic polity. But the system is today mired in a
variety of problems- both external and internal which threaten to erode the credibility and utility of the
judiciary.

On one hand the increasing politicization of ap

pointments in the highest court of the land has eroded the
independence of the judiciary, on the other; the vast number of cases pending in the Supreme Court as well as
the other lower courts has defeated the very purpose of the judicial system.

For justice delayed, is in effect justice denied. Judiciary is no longer attracting the best legal talent because of
disparity in the income of bright young lawyers and the emoluments of judicial officers. In order to attract
persons of the right caliber to the judicial cadre, we must improve their service conditions, particularly of the
trial court judges.

In recent years scandals about lack of integrity have besmirched the reputation of the judiciary. The sub
-
ordinate judiciary works in appalling conditions. Any reform undertaken must be in its totality rather than in
isolation.

Conclusion:

In short the judicial institution must be protected, strengthened and streamlined right from the lowest level if
we want to preserve the rule of the law and the democratic basis of our polity.

Court has to perform a very important duty to decide whether a particular law or an executive order is valid
or not.

This matter also underscores the importance of the independence of the courts. Once the independence of
the judiciary is undermined and we have in the seats of justice persons with pliable conscience and
subservient to the wishes of the political wing of the State.

The first casualty would necessarily be the su

premacy of the Constitution. It may pave the way to
Constitutional anarchy and legal chaos.

Independence of the judiciary is also linked with human rights and civil liberties. Rights and liberties would
be reduced to the level of no more than ornamental show-pieces in the constitution unless they are enforced
in the true spirit by the courts.

Independence of the judiciary is an indispensable condition for keeping alive the rights of the citizens. The
real test of the independence of the judiciary arises when times are abnormal or judicial process is used to
achieve political objectives. At such times judiciary is itself on trial.

Another direction in which the judiciary faces threat is from within. If the Indian judiciary is to enjoy the

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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

confidence of the people, it could be achieved only by dedicated and conscientious work.

Delay in disposal of cases by the courts frustrates the purpose of justice the judiciary is facing the threat of
mount ing arrears and long delays.

The system can yield results only if we abide by the norms of the system. Delay causes dismay, and creates
disillusionment in, all those who knock at the doors of the courts.

As things stand, a sense of despair is inevitable in any individual unfortu nate enough to be entangled in
litigation. There is little sense in having a judicial system which finally delivers an uncertain justice after
twenty-five or thirty years in most cases.

A man's hopes and aspirations, often even his life, are involved in a case he litigates. And he must wait and
wait, through the trial court where he gets a decision after eighth to ten years.

There is appeal in the High Court which takes another seven to eight years; and finally, the greatest tragedy
of the system is that in the Supreme Court a civil appeal, in the ordinary course, would take fifteen years for
final disposal.

The consequence is burgeoning arrears, with lakhs of cases pending at the Supreme Court itself. This is
absurd, for it was never the intention of the Indian Constitution that the Supreme Court of India should be
some sort of a miscellaneous court where every single case would find its eventual and inevitable
culmination.

The real status and role of an apex court in any country does not involve dealing with, every single case
which comes up before it because the counsel chooses to file it.

The apex court is meant to lay down the law for the entire country for the purpose of bringing about
uniformity, for deciding consti
tutional issues and questions of law of far-reaching importance. But today the
Supreme Court is dealing with cases that even the high courts would rightly throw out.

To a great extent, the prevailing chaos in the courts is a self-inflicted wound on the judiciary. The higher
judiciary, and particularly the Supreme Court, has not been able to devise any mechanism for screening
cases.

There is an evident collective inability on the part of this court to regulate its docket, and to respect the final
determinations made by the high courts. The Supreme Court does not restrict itself to cases that manifestly
involve significant constitutional conun drums and important questions of law.

Instead, it reopens litigation abolition, going through every detail of each case in hearing stretched over
decades to give a final judgment that adds nothing to the existing body of laws and interpreta tions and that
properly belonged to the high courts.

In the US the Supreme Court consists of a single bench of 9 judges who site banc (in full strength) on each and
every case considered by the court. The Americans are a very litigious people, constantly running to the
courts over every issue. Yet the American Supreme Court selects just 160 to 170 cases out of the 5 000 odd
cases filed before it each year.

The rest are simply discharged as involving no significant issue of law. The court is willing to respect the
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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

judicial pronouncements of the high courts, and intercedes only where issues of consti
tutional significance
may be involved. Naturally, then, there is no problem of tendencies.

The runaway situation in India is a consequence of the Supreme Court's failure to discharge its constitutional
functions, even as it takes upon itself re
sponsibilities never intended by the Indian Constitution.

Over the decades, a growing jurisdiction 'hunger' has characterized the functioning of the highest court of the
land, as it has extended the scope of its attention to comprehend virtually everything in the life of the nation.

Leading jurists have, consequently, described the Supreme Court as an 'all India miscel laneous court', and
the justice of this court have ignored both constitutional guidelines, and guidelines laid down from time to
time by the Supreme Court itself, for the admission of cases.

While the opening up of 'public interest litigation in the early eighties was one of the most momentous
developments in Indian jurisprudential history, creasing possibilities for India's justice system to Provide
relief to voiceless and suffering millions, this gene has today been so abused as to lose all relationship with its
original intent.

Every guideline laid down by the Supreme Court for admission of matters "in the public interest'" has been
violated by the court itself, resulting not only in grotesque anomalies but in a distinctive loss of prestige for
the court.

In reviewing this situation, one must recall the original intent of the creation of a Supreme Court. This was to
be a court of final appeal.

It was, moreover, to provide a consistent, manageable and living body of law that could furnish a stable,
evolving foundation for the judicial system throughout the country.

Ambiguity on a single point at the Supreme Court snowballs into hundreds of court has to perform a very
important duty to decide whether a particular law or an executive order is valid or not.

This matter also underscores the importance of the independence of the courts. Once the independence of
the judiciary is undermined and we have in the seats of justice persons with pliable conscience and
subservient to the wishes of the political wing of the State.

The first casualty would necessarily be the su

premacy of the Constitution. It may pave the way to
Constitutional anarchy and legal chaos.

Independence of the judiciary is also linked with human rights and civil liberties. Rights and liberties would
be reduced to the level of no more than ornamental show-pieces in the constitution unless they are enforced
in the true spirit by the courts.

Independence of the judiciary is an indispensable condition for keeping alive the rights of the citizens. The
real test of the independence of the judiciary arises when times are abnormal or judicial process is used to
achieve political objectives. At such times judiciary is itself on trial.

Another direction in which the judiciary faces threat is from within. If the Indian judiciary is to enjoy the
confidence of the people, it could be achieved only by dedicated and conscientious work. Delay in disposal of
cases by the courts frustrates the purpose of justice the judiciary is facing the threat of mounting arrears and
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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

long delays.

The system can yield results only if we abide by the norms of the system. Delay causes dismay, and creates
disillusionment in, all those who knock at the doors of the courts.

As things stand, a sense of despair is inevitable in any individual unfortu nate enough to be entangled in
litigation. There is little sense in having a judicial system which finally delivers an uncertain justice after
twenty-five or thirty years in most cases.

A man's hopes and aspirations, often even his life, are involved in a case he litigates. And he must wait and
wait, through the trial court where he gets a decision after eighth to ten years.

There is appeal in the High Court which takes another seven to eight years; and finally, the greatest tragedy
of the system is that in the Supreme Court a civil appeal, in the ordinary course, would take fifteen years for
final disposal.

The consequence is burgeoning arrears, with lakhs of cases pending at the Supreme Court itself. This is
absurd, for it was never the intention of the Indian Constitution that the Supreme Court of India should be
some sort of a miscellaneous court where every single case would find its eventual and inevitable
culmination.

The real status and role of an apex court in any country does not involve dealing with, every single case
which comes up before it because the counsel chooses to file it.

The apex court is meant to lay down the law for the entire country for the purpose of bringing about
uniformity, for deciding consti
tutional issues and questions of law of far-reaching importance. But today the
Supreme Court is dealing with cases that even the high courts would rightly throw out.

To a great extent, the prevailing chaos in the courts is a self-inflicted wound on the judiciary. The higher
judiciary, and particularly the Supreme Court, has not been able to devise any mechanism for screening
cases.

There is an evident collective inability on the part of this court to regulate its docket, and to respect the final
determinations made by the high courts. The Supreme Court does not restrict itself to cases that manifestly
involve significant constitutional conun drums and important questions of law.

Instead, it reopens litigation abolition, going through every detail of each case in hearing stretched over
decades to give a final judgment that adds nothing to the existing body of laws and interpreta tions and that
properly belonged to the high courts.

Confused and conflicting judgments in the lower courts. If both the Supreme Court and the high courts keep
overruling their own precedents in every other case, the entire system must necessarily break down. And this
is precisely what is happening.

Take the twists and turns that the Bhopal Gas Leak Cases have taken Without entering into details, recall only
the 1989 order of the Supreme Court where the court went so far as to quash all past, present and future
proceedings against Union Carbide in any court of the land.

Two lawyers, the Attorney General of India and the counsel for Union Carbide were allowed to reach a
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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

settlement, endorsed by the Supreme Court that effectively placed in suspension, the entire legal system of
India.

In a kind of judicial emergency that can find no basis in the Constitution, they suspended the power of every
agency, including the criminal courts, to intercede in a matter that had been decided only on the basis of a
settlement between two parties in a conflict involving lakhs of victims.

Fascinatingly, this decision, along with other aspects of the settlement, was com
municated in a summary
order barely 30 words in length, no logic, no jurisprudential reasoning, no concern for precedents. The order
merely stated that the memorandum of settlement is part of the court's order.

And with this, over four decades of the evolution of Indian jurisprudence was relegated to the wastepaper
basket. No wonder then that the Supreme Court has now reviewed this decision and has pronounced that the
quashing of criminal proceedings against Union Carbide and its Indian subsidiary was ultravires. This
cannot, however, repair the harm that has already been done.

The kind of flip-flop jurisprudence that is emerging from the decisions of the Supreme Court passes on wrong
signals to high courts and to the subordinate judiciary.

In the first instance, the sheer volume of case law emerging from the Supreme Court is impossible to follow.
Moreover, the manifest conflicts, incon sistencies and constant reversals of decisions encourage the high
courts and the subordinate judiciary to resort to an ad hoc case-by-case decision making pro c ess dictated
entirely by the expedients of each individual case, and not by principles rooted in a coherent body of
jurisprudential thought.

No legal system in the world can hope to provide justice on such an inchoate, erratic basis. In disciplined
jurisdiction is never in the interests of justice or of democracy.

It is imperative, therefore, that the pristine clarity of the original intent of our Constitution be restored to the
Supreme Court, indeed to the entire judicial system. To this end, significant structural changes may be
required.

Arguments in Indian courts tend to be interminable, with the bar refusing to accept any measure of
discipline. The courts must begin to .impose and the Bar should accept certain constraints oh the time that
can possibly be allocated to each case.

The US Supreme Court, once again, has an interesting system: Counsel are given exactly an hour to argue
their case; at the end of 55 minutes, a warning light flashes, and at the end of the hour, a red light goes on; at
this point, the arguments are simply 'guillotined, and counsel must sit down. In India, cases continue to be
argued without interruption for months at end.

The rule of law and sanctity of judicial proceedings do not depend merely the courts and the law enforcement
agencies. They need a general climate of order and discipline, of tolerance and good behaviour.

In recent year's scandals bout lack of integrity have besmirched the reputation of some judges at higher as
well as lower levels. It has affected the image of the judiciary as a whole even though the majority of them are
persons of great integrity and probity.

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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

A distressing phenomenon which has brought the judicial system to a grinding halt, paralyzing and crippling
the functioning of courts at some places, is the prolonged strikes on one or other issue.

The persons who are hit the most as a result of these strikes are the poor litigants who knock at the doors of
the court in quest of justice. It would be a sad day if the interests of the litigants for whom the courts exist are
smothered in the clash between one section of the liar and the other.

Situations sometimes arise which pose real dilemma to many of us who believe in the rule of law and
upholding of the human rights. In certain areas of the country militants shoot and kill innocent people in the
presence of other people.

If an investigating officer tries to procure cogent evidence against the culprit, he and his family members run
the risk of being killed by militants. Similarly no witness dares depose against him as he may be assassinated.

On the top of that, if some judicial officer makes an order against the mutants, he himself becomes the target
of their fury and quite often meets his end at their hands. Judicial process has lost all its sanctity and become
redundant in those areas.

For every votary of human rights, civil liberties and rule of law, such incident of a person being killed in this
manner is an anathema, as the Proper way to deal with such culprits is to proceed against them in a court of
law.

The dilemma is as to what is to be done in a situation where it is impossible to secure the conviction of the
actual culprits because of judicial processes having become redundant.

Criminal law is supposed to be the most potent instru

ment of social defense. What is to be done where it
ceases to perform such a function?

Whenever there is a talk of judicial reforms the focus is invariably more on improving either the working of
the Supreme Court and High Courts or the service conditions of judges in these institutions: The case of
judges, munsifs and magistrates.

Who preside over the subordinate judiciary, is not taken up with the same vigor and enthusiasm, for they
have no godfathers at the top to espouse their cause.

In fact, judges at the higher levels are often more concerned with heir own well-being as far as service or
working conditions are concerned.

The strength of the Supreme Court Bench has already been raised from 18 to 26 and there is a move to fill all
High Court vacancies so that the huge backlog of pending cases can be cleared within a reasonable time. The
Union government is also contemplating amending the civil and criminal procedure codes suitably.

The overall purpose of the entire exercise is to ensure expeditious justice to the common man, particularly
the weak, downtrodden and under-privileged sections of society.

Undoubtedly, the judiciary is a vital organ of any democratic government and every effort should be made to
preserve its integrity, fairness and independence so as to make it in real sense an instrument of justice. But
we must not lose sight of the crucial fact that the process of reformation must be undertaken in its totality
rather than in isolation.
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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

In other words, the subordinate judiciary, which constitutes the base of the entire judicial pyramid, must get
due importance in matters of judicial reforms.

If courts at the grassroots levels are properly streamlined and adequately strengthened, both qualitatively
and quantitatively, there will be much less pressure of work on the higher judiciary which, in turn, would be
able to discharge its constitutionally assigned obligations satisfactorily.

The subordinate judiciary consists of trial courts and the first appellate courts of district and sessions judges.
Though with limited jurisdiction, these courts represent the first tier of the entire judicial structure.

Indeed, the vast majority of poor and aggrieved litigants look upon them as the courts of last resort, the
higher courts being out of their reach for various socio-economic reasons.

Working conditions in the subordinate courts are so needlessly horrible that the less said the better. There
are no proper court buildings in many places, and even in metropolitan cities like Delhi, Bombay and
Calcutta, such courts function in dilapidated, smelly and ramshackle buildings, often sharing limited space
with police stations.

The presiding judges, munsifs and magistrates are usually crowded into small, noisy and congested rooms
without proper lights or fans or even easy access to potable water.

Moreover, they are compelled to record the evidence proceedings, or write their own judgments in long hand
for want of stenographic assistance. Accepted means of modern science like electric type writers, tape-
recorders, photocopiers and computers, which can quicken the pace of justice, have not yet revolutionized
these courts.

The service conditions of subordinate judicial officers are also far satisfactory, pay and allowances being
ridiculous in the context of today's comes and prices. Even a class III bank employee nowadays earns much
more.

Than a subordinate judge, while the take-home salary of a lift-man employed by the LIC is higher than that of
a magistrate.

The pay packets of judges in Sri Lanka, Pakistan and Mauritius, to say nothing of advanced countries, are
four to eight times higher than in India, and the need to raise the gross remuneration of India's junior judicial
officials by at least 50 per cent has been apparent for a long time.

Low remuneration is one reason why some subordinate officers are tempted to ignore the dictates of
conscience. Needless to say, they are expected to main tain a certain standard of living in keeping with their
official status. It is no wonder then that some incumbents drift into accepting illegal gratification to make
ends meet and keep up appearances.

It may be pertinent to recall in this context that many years ago a committee of Chief Justices sent detailed
proposals to revise the pay scales of subordinate judicial officers. But no action has so far been taken on
these suggestions.

Apart from poor remuneration, subordinate judges in quite a few States have no housing facilities and have
to depend on lawyers, and sometimes even on litigants, to obtain accommodation and that too, at exorbitant

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24/12/2013 Essay on Indian Judiciary: Problems and Prospects of Reform

rents which they can hardly afford.

Taken together, low incomes, poor facilities and continued official apathy have reduced the lower judiciary
to a state of collapse. One serious consequence of this is that the best legal brains in the country prefer to
practice law rather than sit on the Bench.

Increasing the number of judges in the Supreme Court or High Courts and improving their service conditions
only attack the symptoms and not the very disease that afflicts the system.

It would be a more relevant corrective to improve the quality & justice right at the grassroots level by
inducting persons with a sound legal background and standing at the bar and with a reputation for integ rity
and sagacity in the profession.

This can well be done by a considered national policy which ensures adequate pay and allowances, rent-free
housing and attractive service conditions.

Not much is heard about the arrears of cases in the lower courts and the delay in their disposal. As of now
over 10 crore cases in the lower courts are hanging fire throughout the country.

This is a frightening situation indeed. Ac

c elerating the pace of disposal in the Supreme Court and High Courts
will not achieve much for the basic fault at the bottom.

Industry, intelligence and independence, once considered to be essential traits in an advocate, are being
slowly replaced by intrigue, cunning and corrup
tion.

The Advocates Act of 1961 and the disciplinary machinery of the Bar Councils have not succeeded in
curbing, unethical practices. In fact, corruption rampant in the lower courts.

Apart from paying exorbitant fees to lawyers, litigants have to bribe readers, ahalmads, clerks and the peons
of judges so as to persuade them to discharge their normal functions.

If the faith of the common man in the lower judiciary is being eroded, what impression will he have of the
higher courts of justice which are supposed to be the guardian of his fundamental rights and final interpreter
of laws enacted by Parliament? The judiciary can maintain its social relevance only if it retains public faith in
its impartiality and efficiency.

While some of the causes of erosion in the image of judiciary are external, not within its control, the others
are the direct consequence of the weakness that have crept into the house of the judiciary itself it is here that
the things have to be rectified by the judiciary itself. The judiciary in India is the repository of a great
heritage, bequeathed to it by a galaxy of great judges.

It is time, therefore, that we streamlined the legal system right from the lowest level so that it can cope
effectively with a worsening situation without sacrificing its well-earned reputation for justice. It is the
subordinate judiciary to which poor people turn for the protection of legitimate rights and claims.

And once they begin to feel that it is of little consequence to them their faith not only in the judicial system
but in democracy as a whole will erode. Judicial reform is therefore imperative if we want to preserve the
rule of law of the democratic basis of our polity.

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