Progression of Indian judiciary through the good old days

Mahadeep Singh Jamwal
The crown of primeval judiciary in the world illuminates the India. In old fashioned era the narrow village councils, had been apportioning justice to the villagers. At higher level the Courts were presided over by the government officer, under the authority of king. 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. The modern journey of judicial system took off with the enactment of ‘The Indian High Court’s Act of 1861’ by the Parliament of the United Kingdom authorising the British Crown to create High Courts in the Indian Colony and as a result of this legislation the existing Supreme Courts at Calcutta, Madras, and Bombay as well as the Sadar Adalats in Presidency towns, the highest Court in their respective regions were abolished and High Courts were created at Calcutta, Madras, and Bombay, having 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 having jurisdiction to solve disputes between provinces and Federal States and as appellant authority against judgments of the High Courts. The Supreme Court of India came into being on 28 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. 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 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.
The Laws on Earth are conceived and enacted by the human beings, so it can never be claimed that such Laws are always perfect, the Laws are enforced by human beings, its perfect enforcement cannot be claimed and similarly the Judgments are also delivered by human beings, so there is possibility of some lacunas in the judgments, that is by the idiom goes that “Good judgments come from experience and experience comes from bad judgments”. The healthy comments always brings betterment and chances to refine, so the remarks of Justice Ruma Pal, a Judge of Supreme Court of India from January 28, 2000 to June 3, 2006 and member of the International Forum of Women Judges, in November 2011 are a direction towards it. Justice Ruma Pal slammed the judiciary for what she called the seven sins. She listed the sins as: 1.Turning a blind eye to the injudicious conduct of a colleague. 2. Hypocrisy – the complete distortion of the norm of judicial independence. 3. Secrecy – the fact that no aspect of Judicial Conduct including the appointment of Judges to the High and Supreme Court is transparent. 4. Plagiarism – meaning that very often SC Judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language. 5. Self Arrogance – wherein the Higher Judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures. 6. Professional Arrogance – whereby Judges do not do their homework and arrive at decisions of grave importance ignoring precedent or Judicial Principle. 7. Nepotism – wherein favors are sought and dispensed by some Judges for gratification of varying manner.
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 Modi government to be politicised by enacting ‘National Judicial Appointments Commission Act, 2014 and the Constitution Act (Ninety-Ninth Amendment) Act 2014’, but it was struck down by Constitutional Bench of Supreme Court on 16 October 2015 by 4:1 majority as unconstitutional.
The alarming aspect related to judiciary is the pendency of cases in various Courts of the country from Apex to the Lower Courts. 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’. The grave situation of pendency of cases was expected to be addressed in a visionary manner by PM of India Modi during ‘Annual Chief Ministers and Chief Justices Conference’ but his approach just by stating of reducing annual holidays of Judges to help reduce pendency was sharply reacted by Chief Justice of India by saying that “Do you mean we go to Manali (considered to be holiday home of PM) or some other hill station to enjoy ourselves”. Chief Justice of India launched a scathing attack on government inaction, squarely blaming the centre for stalling appointment of Judges to the High Courts. He also blamed the Centre of doing nothing to increase the number of Courts and Judges in the country, thus denying the poor man and under trial prisoners their due of Justice. The Chief Justice asked what the point of ‘Make in India’ was and inviting foreign investments when investors are increasingly doubtful about the timely delivery of justice. The words of CJI while inaugurating the new building of the Lucknow Bench of the High Court that “while noting that people’s aspiration for justice has increased”, he suggested hearing and finalisation of cases during the summer holidays. But here we find least concern of government and councils to decrease the pendency.
The mechanism of Lok Adalat to reduce pendency is a system of alternate dispute resolution developed n India by Legal Services Authorities Act, 1987. Lok Adalats an informal, alternate mechanism has been a phenomenal success in tackling pendency, especially in pre-litigation matters, settling fresh cases before they become full-blown disputes and enter the Courts. The move to reduce pendency, ‘Fast-Track Courts’, ‘Evening Courts/Morning Courts’ and concept of ‘Mobile Courts’ to bring justice at the doorstep are matters of great concern.

editorial article
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