Judiciary: Why give opportunity to revolt?
Last day the Chief Justice of India said that if justice is not dispensed speedily people will revolt or commit mutiny. This statement of the present Chief Justice does not reflect confidence in him self but is just despondency and want of determination to fight against the drawbacks and short comings of the judiciary. People may have resentment about judiciary but nothing like revolt or mutiny. Resentment is with every one and the nation is having 130 crorers of people. Perhaps it is only judiciary in which people have faith. Delay in disposing of cases cannot only be a ground for revolt. . Instead of asserting for judiciary he appeared to stand on defensive side. He was not expected to speak in such manner in public or in any meeting where he was Chief Guest. The trouble with present Chief Justice is he frequently, for no reason, speaks with media. The quality of any judge is that he should speak relevant thing at relevant place and the most suitable place for a judge is his judgment through which he can speak and express his felling about justice. Since he had been a judge of High Court and the Supreme Court and now the Chief Justice of India it can be well said that he is quite experienced person to know where the water seeps.
There was another such judge in who after retirement from the post without delay on the next day mates one TV news channel and spoke vehemently against Narendra Modi. Why such reaction by such judge immediately after his retirement? What made him to speak to media in such haste? Does not it reflect bias against a person by a judge?
What I am writing in this article is not at all attributed to any individual like judges, High .courts, Supreme Court, advocates, media, students, law teachers, or any one but what ever is written is just general concept so that the article may be understood clearly. This is to make the article lucid. I have always in my mind that the exception proves the rule. There fore with all such exceptions the article should be read.
Why the Judges of Higher Judiciary do not resent on the activities of advocates who do not work and take firm action against them? Every time and then they give sermons to District Judiciary only. It appears that these judges are coward.
For pending of huge number of cases instead of abusing District Judiciary it is better that Higher Judiciary should introspect about itself. In the present day it has become a fashion to abuse the district judiciary by higher judiciary about corruption, inefficiency and incompetence. But did ever the higher judiciary had put any such question to it self? In spite of several letters and suggestion from me also High Courts do not try to look into the recruitment and training process of the District Level Judiciary. What is wrong with the High Courts is thinking them self as the master of wisdom. Perhaps for higher judiciary wisdom and knowledge has been showered and bestowed only on them by the Goddess Saraswati. This may in fact most foolish concept. But such concept prevails through out and this may reveal from what the judges of the higher judiciary talk speak and behave. This higher judiciary is no less that the present executive. In the name of administrative subordination misbehave; harass the judges of the District Level Judges. Liaison by junior judges in the districts for high court judges is now a new feature and these judges have to look after the comfort of these High Court Judges like Naib Tahasildars and Nazirs [court clerks] of the courts.
The second aspect is regarding advocates. The advocates are engaged to support the cause of their client in right perspective but it is the general observation that the advocates are engaged in delaying the disposal of cases on this or that ground. Most of the grounds are fictitious or frivolous and meant to get the cases delayed. Both the Civil and Criminal Procedure Codes are misused for achieving the said aim. By filing a simple frivolous application affixing court fee of Rs. 10 or odd they get the case adjourned for months together. The judges of any rank have no control on such way of behavior. The last resort of the advocates is to move transfer application against the presiding judge and allege any imaginary shameless statement against the said presiding judge without any ground. The unfortunate thing is that the superior judges take the things lightly and at par and do not give proper attention to look in to such matter and pass orders on going through the file cursorily. Though the higher judiciary has power to impose exemplary costs but it does not exercise power to do so to earn cheap popularity. It should also be remembered that no judge has ever been popular among advocates as few of them are most cunning and selfish and are interested in getting their work done. It may be bitter to swallow but it is a fact that due to higher judiciary bad conventions and practices have been established in judiciary. Unfortunately this also happens because 70 percent judges in the higher judiciary come from the Bar and not from the service cadre.
Barring few law colleges which can be counted on fingers every law college lacks in stander of legal education. Generally the law students have no interest in studying law but only in getting law degrees. All silt and bad stuff can be seen in the colleges including most of the teaching staff.
In different states frequent strikes by the advocates associations and condolence meetings the routing work hampers and delay is caused. There is in the newspapers news item that in Rajasthan and Utter Pradesh due to indefinite strikes by advocates judicial work is badly paralyzed. Tings have become unmanageable in Tamil nadu and Karnatak due to the question of elevation of a judge to Supreme Court. People have not forgotten the misbehavior of advocate in Tamil Nadu High Court in 2006. Cases are pending in Supreme Court. There the advocates are behaving unruly and are not working. In fact the whole judicial system has been high jacked by the advocates and they have become free lancers like media. Both have become problem for the general public and governments due to their impolite, rude behavior. The higher judiciary fears these two groups and has failed to take drastic action against the undeserved persons from these groups. The law relating to Bar councils deserves to be amended so that the judiciary may keep them in discipline to some extent. Simultaneously the District judiciary should be given protection from unwanted and undeserved behavior of the higher judiciary and advocates. Laws relating to Civil and Criminal Procedure, Evidence Act and Advocates Act are inherently most defective and unfit in the present day enviourment and hence should be radically changed to suit the present day situation to impart justice speedily.
The implications of poor law education results in to bad advocates and mal practice by advocates. Since such advocates suffer from lack of legal education and legal knowledge they work in the courts with surmises and conjuncture. They lack in the knowledge of pleading, practice, advancing good arguments.
The Chief Justice might have thought in right direction while giving such statement but perhaps the High Courts do not want to take such view for speedy disposal of cases. This fact may be demonstrated by few facts. In few states the vacancies in the District judiciary have not been filled up for years together and there is a fight in between Advocates and elevated judges from Bar and judges elevated from service cadre. Service judges are not promoted saying that there shall first be direct recruitment for district Level Judiciary and only then departmental promotions shall be done so that the advocates admitted to District Level Judiciary may get seniority and chances of departmental promotes to High Court may be hampered. Advocates have also involved in such controversy. This is peevish, perverse and bias attitude and mentality of judges sitting over Constitutional posts claiming them self to be so call JUDGES. Because of this about 25-30 percent courts are vacant in different districts and judges are having charge of 2-3 courts each. The accused persons are in custody and their cases cannot be tried with speedy trial as the judges are helpless. Every then and now the High Courts give directions making ceiling limit of time for disposing of cases but practically such directions cannot be followed because of heavy work of which High Courts have no basic idea.
May the Chief Justice be pleased to have video conferencing with every Chief Justice of every state and have true and correct facts and figures of the establishment of judges? There should be no jugglery of figures to justify what the High Courts think.
Some time back Administrative Tribunals were established.
Theses tribunal decided several cases with efficiency and effective judgments/orders were also given. Presently the trends of the High Courts is to not to decided cases and without coming to a logical conclusion direct the government to reconsider the case of a petitioner. This causes harassment to a petition and he does not get justice. For example if the government is not considering the case of a petitioner and therefore he files a writ petition in the High Court. What High Court does is direct the government to reconsider the case in the directions issued by the High Court. The concerning department again rejects the case of the petitioner and then petitioner files contempt proceeding and again High Court directs to re consider the case of the petitioner. The department again rejects the representation and the vicious circle has no end. I had an opportunity to read the orders of the Tribunal which decided the cases in a logical manner. Generally the High Courts do not do in such manner. Before establishment of the Administrative Tribunals the jurisdiction to try cases of government servants was with Civil Courts and these courts had decided the cases with all efficiency though they had to record evidence. The Administrative Tribunals had more powers and were permitted to decide cases without recording evidence on the basis of affidavit. I have full confidence that if the power is vested with civil courts the cases may be decided effectively. There should only be a revision before the High Court in a case decided by the civil court. In this respect the performance of the High Courts is poor. Even in contempt proceeding the High Courts do not take the bureaucrats at task and give undue latitude to the contemnors. I had read a slogan written on a wall of the building of a High Court “Anuchit Kshama Ki Chhatra Chhaya”meaning there by a court is shelter for undeserved forgiveness.
The government it self is a bib-big litigant in courts. The reason is indecisiveness on the parts of the bureaucrats and the officers dealing in the matters of any legal controversy and the course which they adopt is they shift the burden of decision on courts. The second reality is that ministers are never good decision makers and they do not know any fundamentals of their portfolio. They draw a big zero. Every department should have a legal adviser of the rank of distinct judge under the administrative control of the High Court concerned. I had separately written an article which can be seen on Sulekha.com.ULR is namjoshi.
Government should read the provision of Article 32 and in particular the provision of Article 32[3]. Enact a law to empower the Distinct Courts and empower them with the powers under that article. Give best training to the District level Judges and see that the civil courts will give best performance and public will get speedy and cheaper justice.
