The people of this country are facing the problem of enormous delay in justice delivery before the lower courts and they have heard the problems like lack of infrastructure, increase in litigation etc. The problem of delay in justice delivery before the lower courts and even the appellate courts was prevalent from the beginning and continues even today to a great extent. However, with the reforms like introduction of Alternative Dispute Resolution Mechanism (ADR), we have been feeling the speed in justice delivery in the recent past to some extent. People of this country bother at the long delay in justice delivery; still, they were silent and were having great respect on our Judiciary. The Judiciary is attacked mainly on the ground of delay in the past, but, now, the situation has changed. The Judiciary is loosing all respect and I am not exaggerating anything, but, presenting the fact.
If there is no strong, independent and reliable judiciary, then, it will be a matter of grave concern to all the citizens of this country. As the media has emerged so strong in the recent past advocating various freedoms and especially the right to speech and expression, the Judiciary is exposed to a great extent. Again, the overall standards of the citizens have also greatly increased. There is economic and overall development in the country in the recent past. However, the Judiciary has remained stagnated in embracing the required reforms except embracing the technological advancements in the recent past to some extent.
We all know the problems before lower courts and people of this country have accustomed to delay in lower Courts. But, now the problem is with the Higher Judiciary as it is loosing all its respect as I perceive.
Higher Judiciary in this country has enjoyed great respect in the past and the Apex Court of this country could even expand the scope of Part-III of the Constitution of India. Even when the Part-III of the Constitution is expanded and many theories like Basic Structure Theory etc. were pronounced, the Judiciary has enjoyed great respect and even the legislature and executive could not dare to challenge the power of Judiciary directly. The legislature used to nullify a judgment of the Apex Court indirectly and by making a new law or enactment. We have seen these things. But, now, there is no problem with the judgments as it seems. The Governments can simply ignore the judgment and the Courts are not in a position to do anything on the effective implementation of its decisions except advising to initiate a contempt proceeding. I do strongly feel that the law of contempt is toothless in this Country for right or wrong. Despite the fact of committal of contempt, rarely, a person who has committed contempt is punished. Again, initiating a contempt proceeding is not a simple issue and there is lot of procedural formalities and usual delay is there always. Questioning a misdeed of the Government is a great thing a citizen will do, however, he will be discouraged by the system.
People of this country have accepted the reasons advocated by the people in the legal profession and senior advocates for the delay in justice delivery. However, they are not in a position to accept as to what is going on at the higher level discharging very important functions.
The Apex Court has reasoned as to why Part-III of the Constitution had to be expanded and we all know the background of Public Interest Litigations. The Indian Judiciary has enjoyed so much respect in the world in the past and it is certainly loosing its importance and respect as I heard from the people and professionals.
I would like to expose few points touching the Higher Judiciary in India and those are as follows:
1. It seems that there are respected judges of High Courts who are not able to understand the concept of fundamental rights as enshrined in the Constitution and the right of citizens to approach the Constitutional Courts under Article 226 of Constitution of India.
2. There are respected judges of High Courts who will never see at the law governing writ petitions and they will pose a question based on equity and they will pass orders as if orders are being passed by village elders in our villages.
3. The Higher Courts are not in a position to pass a judgment when it is clearly found and advocated that the Government is at wrong and the Government has violated the fundamental rights of the citizens of this country.
4. The Higher Courts entertain petitions and pass judgments encroaching upon the powers of executive.
Example: We have seen the orders passed by the Andhra Pradesh High Court in the recent past asking the Government to answer as to why the Government is keeping more police force inside the Osmania University Campus. The orders of the High Court are stayed by the Apex Court now and the matter is pending before the Apex Court. I have heard the expressions of my friends and people where they have expressed their dismay at the orders saying as to how a Court can direct the Government on matters like this.
5. The judges of Higher Courts shall adhere to utmost dignity in the way they dress, they sit, they talk, they walk and they write judgments. However, the long followed traditions are blurred as I see and perceive.
6. The Judges of Higher Courts do not show any concern at getting their own orders implemented.
Example: I have personally seen a writ petition. The Hon’ble High Court has passed a judgment in the year 1990 giving a specific direction to the Government. For getting the orders of the High Court implemented, the litigant had to approach the High Court many times and the Government has not bothered at all at implementing the orders of the High Court. Ultimately, the direction of the Hon’ble High Court in the year 1990 is set-aside in an indirect way and as has been done in the recent past by passing G.O. The litigant has preferred a Writ Appeal now and they are fighting for their rights and getting an order High Court implemented for years and for almost 20 years now.
7. I have seen cases where a judge insults advocates and young advocates and it should not happen in courts. The Court is burdened with protecting the right to dignity under the Constitution of India and how come they protect the dignity of people when the Judges do not bother at the dignity of members of their own fraternity.
It is unfortunate that the executive is feeling so bad now at the affairs of Judiciary and mooting the reforms. It’s a shame to the Indian Judiciary and I am really ashamed at the state of affairs going on.
When others talk about the code of conduct of judges, the judicial reforms and other things pointing at judiciary, how come the Court exercises authority with reciprocal respect?
I don’t know as to where our Judiciary goes. India requires a strong and reliable judiciary as otherwise it will be a vital and systematic failure. We need a long road map to correct this Judicial System and I am sure that nothing is impossible. However, correcting this system will certainly take long time.
When there is no reliable Judicial System, then, where do people go for protection of their rights? They may be forced to adopt illegal means as their rights are not protected by the system. Then the laudable principles and objects enshrined in Constitution of India will remain only on paper.
It is unfortunate that the executive is forced to think about judicial reforms where the constitution has given a power to the constitutional courts to check as to whether the executive is exceeding its powers or exercising powers arbitrarily.
Note: I have just expressed my views and I have no intention to insult the Judiciary and my views are based on my own thinking, experience, information and also assumptions.
V.DURGA RAO, Advocate, Madras High Court.