Citizens very often complain about our legal system and as to how the Courts are functioning in this country. People having experience with Courts will explain in detail as to how our system functions. Unless one is a habitual litigant misusing the Court process knowing the ‘loop-wholes’, citizens are afraid to approach Courts in this country and they compromise their rights and entitlements at times rather going Courts. Every one knows the issues of pendency in Courts, often alleged corruption, deficiency in service at times and problems with the technicalities. Whatever may be issues with the legal system in this country, we can not keep on complaining about the system without focusing as to how to correct it. Even the judges are part of the system and they must be having their limitations even if they are honest and committed to their work. Though it is alleged that corruption is rampant in judiciary at all levels, we should also remember that there are good judges and there can be judges who are honest and committed to their job. Again, we need to have the figures as to the allotment of funds to the judiciary. I think that if we look at the allotment of funds to the judiciary and compare those funds with the funds allotted to the schemes like distribution of lap-tops etc., then, we tend to get surprised. How come the judiciary is not fully computerized in this country where India dominates the world when it comes to software exports and continues to serve the developed countries like USA and European countries in governance through technology? Probably, we can not even attribute direct political motives to this situation or the vested interest groups. Because, even assuming that the politicians are afraid of ‘speedy delivery of justice’, that must be confined to the ‘Criminal Justice Delivery Mechanism’ and the prosecution plays a great role in that and the prosecution is always at the hands of Government in power. If India as a whole can not concentrate on judicial reforms and provide speedy justice to the litigants, it is because that the system is spoiled beyond the possibility of easy repair and the negligence in correcting the system is persistent. But, I am sure that we may not be able to continually ignore the system which can lead to ‘lawlessness’ in the society. If judiciary fails completely and the people are afraid to approach courts, then, ‘might becomes right’ and many allege even today that ‘might is right’ irrespective of concept of law that ‘right is might’. I believe that there is nothing wrong in pointing-out the lacunae in the system as we the people are not permanent and the system is only permanent; and future generations also continue to suffer if we neglect the system. When we discuss about the judiciary or the legal system in this country ignoring the ‘prosecution mechanism’, then, we need to understand the justice delivery through High Courts & Supreme Court; and justice delivery through Lower Courts separately.
As I understand, a citizen can approach the High Court under Article 226 of Constitution of India if his or her fundamental rights are violated. Fundamental Rights are enshrined in Part-III of Constitution of India. While the citizens can approach the High Courts under Article 226 and Supreme Court under Article 32 of Constitution of India for getting the ‘Fundamental Rights’ enforced, same is not the case with the ‘Directive Principles of State Policy’ as enshrined in Part-IV of Constitution of India. I strongly believe that there must be a great logic behind clearly specifying the fundamental rights in Part-III of Constitution of India and the definition given to ‘Human Rights’ in Human Rights Protection Act refers only to the specific fundamental rights enshrined in Part-III of Constitution of India. Hon’ble Supreme Court of India has expanded the scope of Part-III of Constitution of India through various judgments in the past and the line between ‘Fundamental Rights’ and ‘Directive Principles of State Policy’ was blurred. There must be judgments of Supreme Court saying that ‘Right to Shelter’, ‘Right Legal Aid’, ‘Right to Education’ etc. are also Fundamental Rights. This is called ‘judicial activism’ and through this, the High Courts and Supreme Court in this Country has dealt-with number of issues concerning the citizen against the Government Agencies/Public Sector Institutions/Government. There was also a concept of ‘Public Interest Litigation’ and there were occasions where even a ‘letter written to the Supreme Court’ has been taken-up as a ‘Public Interest Litigation’. The High Courts also take-up ‘Public Interest Issues’ suo-motu at times. Effectively expanding the scope of Part-III of Constitution of India and the concept of ‘Public Interest Litigation’ are called ‘judicial activism’ as I believe. While the ‘judicial activism’ is to be supported, many believe, that Courts should also be very careful and exercise due restraint while dealing with the policy matters. Because, courts can not make a policy and the Courts may be interfering with the policy matters only in exceptional cases.
Apart from Writ Jurisdiction, High Courts also have ‘Appellate Jurisdiction’ and there can be ‘Original Jurisdiction’ also if it is a Chartered High Court. High Courts will entertain Appeals in Civil Cases, Criminal Cases and other Cases and it is called Appellate Jurisdiction. In Civil Cases, normally ‘Second Appeal’ goes to the High Court and by the time, the case reaches the High Court in a Second Appeal, the litigant may loose interest in pursuing the case in many cases or opt for a settlement. It is not an easy job to dispose of ‘Second Appeal’ in civil matters though a ‘Second Appeal’ is maintainable only on a ‘question of law’. It is very difficult to determine as to what becomes ‘Question of Law’ and once a ‘Second Appeal’ is numbered, as I believe in many cases, it is admitted and a stay is also granted as the ‘Second Appeal’ becomes meaningless if no stay is granted. It is really difficult job to look at ‘Second Appeals’ as the judge has to look into the all the papers in the Lower Court and pass a judgment which can further be assailed to Supreme Court. Original jurisdiction provides a right to the citizen or institutions to directly approach the High Court instead of lower courts in certain cases and depending upon the ‘pecuniary limits’ etc. On criminal side, High Courts are approached for Bails at times, approached to get the FIR etc. quashed, approached asking a direction for registering FIR and asking investigations by some specified authorities like CBI. There is no problem with the High Courts exercising jurisdiction over criminal cases or in criminal matters and it is essential. High Courts must be doing a great job in this regard as they do many-times while entertaining Writ Petitions under Article 226 of Constitution of India or Public Litigations.
Article 226 of Constitution of India provides a precious right to the citizens to approach High Courts when his or her Fundamental Rights are violated. Except in few matters, I don’t think that the High Courts are insisting too much on technicalities while exercising jurisdiction under Article 226 of Constitution of India. We know as to how some Governments and Government agencies/organizations work. Now-a-days, if the citizen is aggrieved on certain issue with the Transport Authorities, Education Department, Revenue Department, Registration Department or any other Government Department or any public authority, citizen approaches the High Courts and in many cases, without insisting as to why the Petitioner has not reported the matter to Superior Officers etc., High Courts do look into the matter and provide relief. This is highly appreciable thing as far as I am concerned and many are concerned. There can be vexatious Writ Petitions and those can be dismissed at the first hearing itself and can be dismissed with costs also. As such, there is no need to discourage people approaching High Court under Article 226 of Constitution of India. In some cases, where the small people fight with the big people with the political backing, even the orders of High Court are not implemented or the orders are diluted. Examples are plenty. In those cases, the citizen will again be approaching the High Court for getting its earlier order enforced or may have to choose to file a Contempt Petition which is another separate proceeding requiring enquiry. It is known to many that the powers of Contempt are also diluted and it is very rare to see a person getting punished for ‘Contempt of Court’. Even if there is a punishment, it would be very nominal and negligible.
This is how according to me, in brief, High Courts function and deals with various issues. While High Courts does a great job in providing relief to the citizen under Article 226 of Constitution of India, entertains Public Interest Litigations and exercises some powers on Criminal side, there can be problems and exercise of Appellate Jurisdiction and Original Jurisdiction involves usual delay. Why there is delay even in High Courts is a big issue to deal with. It is not easy and possible even for the Chief Justice of a particular Court to super wise its machinery and the functioning of Lower Courts. It takes lot of time to the Chief Justice to understand the judicial system in that particular state and he may not stay there for so much time. He may be elevated to the Supreme Court and his successor may have a different kind of thinking and the style of functioning. Again, a judge becomes the Chief Justice at the very end of his career and he lacks the time and must have been tired to look at the system. These are all deeper problems.
There are allegations that some judges lack competency, are corrupt and lack the commitment to render quick justice. Whatever may be problems, the problems with the Higher Judiciary can easily be addressed if the Judiciary and the executive come together. Allotment of funds to the judiciary to be increased and there is no justification for allotting lesser funds to the judiciary. Not only allocating the funds for the establishment of new courts etc., but funds are to be allocated for many other infrastructure issues within the existing set-up. We can not reduce the pendency of cases by keep-on establishing Court or Fast Track Courts and it is for sure. We need to have a logical and practical approach to the issue and it requires lot of political will and co-operation from the judiciary and also legal fraternity.
Whatever may be the allegations against Higher Judiciary in this Country, Higher Judiciary is doing far better than other organs in this Country and it’s a fact. According to me, following issues requires special attention.
1. It is very important to appoint competent judges and competency can never be compromised and especially when it comes to the appointment of judges to the High Courts. If the existing collegium system is not correct or failed, then, right kind of system is to be adopted and the executive should not say that it will not interfere with the issues of judiciary as Government is ultimately responsible for his. All political parties should have a good approach towards this. The allegation of strong nexus between the politicians and judges can be ignored and I am not bothered at this allegation. The important thing is that the competent people should become High Court judges and I don’t believe the saying that the competent are reluctant to get appointed as judges. Its just an excuse. If we ensure that only competent gets appointed as the judges of High Court, then, we will see a great change in the system. It is alleged that while the appointments in the past are good, now, the appointments are clearly questionable. Even if political interference is there with the functioning of High Court judges at times, it is not a big worry and if we appoint competent, then, they will be effective in their functioning and the citizen gets benefited.
2. Government may be providing various facilities to the judges of High Court like quarters, car and other assistance. A salary with other allowances. But, it is important to increase the salary of High Court judges considerably and it is must and it is in the interests of the system. Ensure that the person getting appointed as a judge to the High Court gets great amount personal security and status. It may not be a great burden on the exchequer. We may have to double or triple their salary and other allowances. If we do this, then, lot of talented and experienced will take-up the judgeship.
3. We should think as to how we can improve the numbering or processing office attached to the High Court and we should constantly think and monitor as to how we can effectively use technology to offer better service to the citizens.
On civil side, we will be having Junior Civil Judge Courts, Senior Civil Judge Courts etc. entertain civil disputes based on the ‘pecuniary limits’, ‘territorial jurisdiction’ and ‘subject matter’. On Criminal Side, we have Magistrate Courts, Sub-courts and District Sessions Courts dealing with Criminal Cases or matters based on the gravity of offence. While there are good, honest and committed judges in Lower Judiciary also, it is very often alleged that the corruption in Lower Judiciary is unchecked and huge. Corruption in some Lower Courts has become a norm and a routine affair. It is more so in Magistrate Courts or Metropolitan Magistrate Courts. Judge exercises some kind of discretion in the matters of granting ‘Bail’, in the matters of granting ‘Anticipatory Bail’, ‘re-calling warrants issues’, ‘quashing the charge-sheet’ and deciding the case as the judge has to interpret the deposition in a criminal cases and should come to a finding as to whether the prosecution has proved the case ‘beyond reasonable doubt’. In our system, innocent gets punished as he can not get the police and public prosecutor on his side and can not influence the witness and prevent the false witness, mighty will get escaped with the support of prosecution, with the support of big lawyers pleading lot of legal principles and with the ‘corrupt system’. It is alleged that in many cases, Bails are ‘bought’ and not ‘got’. We know the entire story of what happens to a Civil Case in a Civil Court and as how a Civil Case can proceed is as follows:
1. In a Civil Case, it may take lot of time to complete the service of notice on the opposition side. Our people know as to how to avoid service of notice and this leads the Petitioner to go to the extent of giving paper publication. Even then, the opposition side can neglect the issue and allow the Suit decreed ex-parte.
2. When the Petitioner goes for getting the order of decree & judgment executed, then, even after one year or so, the opposition party will approach the court which has passed the decree with two applications viz., to condone the delay in filing the application seeking to set-aside the ex-parte decree and to set-side the ex-parte decree and judgments. In our courts, these issues are very easily entertained and at the most, our Courts may be imposing some 5,00/- or 1,000/- as costs. Who bothers to pay 5,00/- or 1,000/-. Depending on the capacity of the party and depending upon the seriousness of the issue, the Courts should be empowered to impose fine which can extend even to lakhs and for that, we need to change our Civil Procedure Code.
3. At times, a person can file a false Civil Suit to harass a particular person and can allow getting it dismissed for non-appearance. Any-time, he can come to court with a condone delay application and also an application to restore the suit.
4. Any number of applications can be filed in a Civil Suit and if there is no provision to file an application, then, S.151 of C.P.C is cited which confers inherent powers on the Civil Court.
5. These interim-applications can also be dismissed for default, can be restored, an ex-parte orders can be passed and those can be challenged.
6. Again the Interim Orders also, a person can prefer an appeal if it is an appeallable order or he can approach the High Court by filing a Civil Revision Petition. High Courts normally disposes these petitions very quickly as the original Civil Suit gets delayed due to the pendency of Civil Revision Petition in High Court.
7. Like-wise, there is lot of follow-up, procedure and ways to drag a Civil Court for years together. There are big lawyers to ensure that the cases are pending in Courts for a long time.
8. Even if one sees the judgment in a Civil Suit, then, the aggrieved can prefer First Appeal, Second Appeal and the matter can reach to Supreme Court. Even at the Appellate Stage, the case can be reverted back to the lower-court for a fresh-trial and it is possible.
9. Calling the witness for recording evidence is also a big affair in Courts.
10. There is lot of procedure for getting an order executed and what a person can do if the order of Court is disobeyed.
11. Like-wise, competent people can drag a case for years and years even if one party is prepared to see the early finality of the Case.
These are all real problems and with these problems, people are adopting illegal methods even to get their civil disputes settled. At times, police authorities will solve the issues through the methods known to them. Otherwise, ‘might become right’ and mighty can engage professional gundas whose only job is to do settlements and involve in litigations. The professional gundas will get their commission for solving the issue and these gundas can also have the backing from politicians and police authorities at times. These are all the problems of common-man and rich are not affected by any of this as they know as to how to get their issues solved. Poor people are innocent and vulnerable to exploitation in the system.
I laugh at the reasons attributed for the delay in Lower Courts. They say that we need more judges and more Courts. That may be true, but, we can not reduce the litigation or can not provide speedy justice to the litigants unless we correct our system and unless the judge is committed to work. I just want to focus on few issues required to be done with regard to Lower Judiciary as follows:
1. There should be an effective and independent anti-corruption wing attached to the High Court reporting to the Chief Justice directly. This mechanism should be strong and enough funds also to be allotted. This investigation mechanism should act upon the complaints even without disclosing the names of the complainants at times. These anti-corruption officers should get the information from various sources and should book the corrupt judges. They should be answering the Chief Justice constantly and should act as per the directions of the Chief Justice and other judges. This mechanism should work under Central Government and the State Governments should have no say in this.
2. The Parliament should look into the procedural laws when it comes to Civil Cases especially and we may have to bring-in right kind of reforms. There is an urgency to simplify the procedure, curtail many Appeals in many cases unless huge stakes are involved. But, I doubt it happening as our legal professionals and Bar Councils have protested even for a simple amendment in Civil Procedure Code earlier and now afraid of competition from the Foreign Law firms. It is an insult to Indian students and legal professionals if we say that our people can not compete with foreigners in legal profession. We have lot of talent and brilliance and we should not be afraid of competition.
3. Selection process is to be looked-at and it is to be ensured that only talented gets into the judiciary.
4. Every lower court in this country should be computerized, should be able to provide the status of case on-line, should be able provide the orders on-line on regular basis. This is very much possible and should be done on urgent basis. It may not require lot of funds as compared to funds involved in many popular schemes like giving lap-tops, television sets and in future Refrigerators etc.
I am a proud legal professional, proud to read the judgments written by great people, proud to follow great Senior Lawyers and proud that our Higher Judiciary does a great job in many cases. However, we need to look at the real issues and there is a need to bring reforms in our system on urgent basis. There are good people and bad people in the system. Instead of bothering at many problems and complex issues, we should bother as to why we are not able to bring simple reforms and not able to get more funds allocated to judiciary for effective and purposeful use.
We can solve the problems of pendency of cases simply by establishing courts and by emphasizing on ‘Alternative Dispute Resolution Mechanism though it is to be encouraged.
The problems with the legal system or the judiciary are not in the interests of legal professionals, senior lawyers, big law-firms, not in the interests of politicians too and they should be happy to see great reforms in the system. We should work for reforms for providing speedy and effective justice to the public.
Note: 1. the views expressed are my personal and expressed public in interest.
2. I have expressed my views with my limited knowledge and understanding of issues and I may be wrong also.
3. I have no intention to insult judges, court mechanism, lawyers or the law-makers.
V.DURGA RAO, Advocate, Madras High Court.