Mahadeep Singh Jamwal
India has the oldest judiciary in the world. In ancient times in the villages, the local village councils, similar to modern Panchayats, consisted of a board of five or more member to dispense justice to the villagers. At higher level in towns and districts the Courts were presided over by the government officer, under the authority of king to administer the justice. According to ‘Brihaspati Smiriti’, there was a hierarchy of Courts in ancient India, beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher Court was that of Judge; the next of the Chief Justice called ‘Adhyaksha’ and at the top was the King’s Court. The jurisdiction of each was determined by the importance of the dispute. It is found that even jury system existed in Manu’s period.
Speaking of the modern era, we find that ‘The Indian High Court’s Act of 1861’ was enacted by the Parliament of the United Kingdom to authorise the Crown to create High Courts in the Indian Colony. Queen Victoria created the High Courts in Calcutta, Madras and Bombay and abolished the Supreme Courts at Calcutta, Madras, and Bombay. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India, under the Government of India Act 1935. The Federal Court had jurisdiction to solve disputes between provinces and Federal States and hear appeal against judgments of the High Courts. The Supreme Court of India came into being on 28th January 1950 and it replaced both the Federal Court of India and the Judicial Committee of the Privy Council, which were then at the Apex of the Indian Court System.
The Indian Judiciary administers a common law course system of legal jurisdiction, in which customs, precedents and legislation, all codify the Law of Land. They form a strict hierarchy of importance with Supreme Court of India at the top, followed by High Courts of respective States and so on, to the level of junior division Judicial Officers at the bottom. The Judiciary is independent of the Executive and Legislative branches of Government. According to the Constitution of India the Supreme Court is a Federal Court, guardian of the Constitution and the highest Court of Appeal. The Judiciary interprets the Constitution as its final arbiter. The appointment of a Judge is effected by President of India from a list of names recommended by the ‘Collegiums’, a closed group of the chief justice of India and the most senior Judges of the Supreme Court for appointments to the Supreme Court, and they, together with the Chief Justice of a High Court and its senior most Judges, for appointments to that Court. The existing system of appointing Supreme Court Judges was attempted by the present government to be replaced by enacting ‘National Judicial Appointments Commission Act, 2014 and the Constitution Act (Ninety-Ninth Amendment) Act 2014. Apparently, it was a move of the government to have its participation in appointment of Judges, a politically motivated step. It was passed by the Parliament with ratification by 16 of the Sates Legislatures in India; mostly BJP ruled States and subsequently, assented by the President of India on 31st December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015, but it was struck down by Constitutional Bench of Supreme Court on 16 October 2015 by 4; 1 majority as unconstitutional after hearing the petitions filed by several persons and bodies with Supreme Court Advocates on Record Association.
A very vital concern is with regard to the pendency of cases in various Courts of the country from Apex to the Lower Courts and in my opinion it is the reason of remarks of CJI, that the Judiciary is losing its credibility. There are various reasons attributed to the pendency in the Courts but important of them are;
* The disposal of cases suffered as the process for appointment of Judges came to a stand still for almost a year, as to the tug of war over validity of NJAC.
* Due to approximately 43 per cent vacancies in High Courts of the country even the SC too has a vacancy of five Judges.
* There may be reason for backlog is a pile of false cases registered by interested parties to get a stay.
* As remarked by CJI, Bar was not very cooperative in disposing of cases. His remarks came during 150th anniversary function of Allahabad High Court. Lord Halifax, Britain’s Secretary at the outbreak of Second World War says ‘If the Laws could speak for themselves, they would complain of the Lawyers in the first place’.
(To be continued)