“Indian Constitution is lawyer’s paradise ~ Sir Ivor Jennings"
When Sir Jennings said this about our Constitution his intention was to reveal that part of our Indian legal system which was suitable for lawyers(due to ambiguity in provisions), because, the Indian Constitution, being the lengthiest in the world, resulted in some unnecessary delay in proceedings and inadequate justice. Jennings said that a constitution should be intelligible to common people, but they fail to clearly understand the Indian constitution which is very complex. Every Article of the Constitution can be interpreted by the higher judiciary, and lawyers, while interpreting, different Articles, further complicate the Constitution.
Modern Indian legal system is a result of British rule. All the legal set-up here has been established by the British Government. The Indian Constitution is just 67 years old and so is the independent legal system, but it has witnessed and still facing some considerable problems. In this article, we will discuss some important issues:
Innumerous Cases
According to a recent report[i], approximately 2.81 Crore cases are pending in Indian District Courts. Data showed that district courts across the country are grappling with a backlog of 2,81,25,066 civil and criminal cases in the period between July 1, 2015, to June 30, 2016. But a large number of matters, 1,89,04,222, were also disposed of during the period. One of the key reasons for the huge figure of pending litigation is the shortage of judges in subordinate courts which is “a cause of concern”, as there are 4,954 judges’ posts vacant when the sanctioned strength of judicial officers was 21,324, the report on subordinate courts said. “The present judge strength is sufficient just to handle the fresh cases filed each year which ensures constancy of pendency figures. It is necessary to understand and predict that case filing patterns would change in future and devise methods to keep pendency within manageable limits,” it said.
Highlighting the importance of judiciary and timely delivery of justice, the report said “justice is one critical component of citizenship which cannot be neglected. “Overworked judges, overburdened court staff, a chronic shortage of court space and unending wait to justice does not complement the policies of the State.”
Corruption
Like other agencies of the state, the legal system is also facing the problem of corruption. In 2010, a former Law
Minister declared that eight of sixteen former Chief Justices of India (CJI) were corrupt, and in 2014 a former Supreme Court judge alleged that three former CJIs made “improper compromises” to let a corrupt High Court judge continue in office. Sadly, the Indian judiciary has shown a predilection to treat every call from the executive or the legislature for greater judicial accountability as an attack on the judiciary’s independence.
As per the constitutional provision, there is no provision yet for registering a FIR against a judge who has taken bribe without taking the permission of the Chief Justice of India. Obviously, visiting the CJI, seeking his permission, and then registering a FIR is not what a poor man will prefer to do. This will prove to be more expensive and time consuming for him, besides the court and lawyer’s expenses.
The Professional arrogance of the judges whereby judges do not do their homework and arrive at decisions of grave importance while ignoring precedent or judicial principle delays justice and adds to trial’s spam. In 2011, Soumitra Sen, a former judge at the Calcutta High Court became the first judge in the India to be impeached by the Rajya Sabha alleged for misappropriation of funds.
Appointment of judges
In the recent past, there have been many debates around all over the nation regarding the Collegium system and the new system that the government wants to introduce for the appointment of judges, the NJAC (National Judicial Appointments Commission). Well, be it the collegium system or the NJAC, none seem to be transparent enough to make the selection process of judges clear and understandable to the common public. All democracies are swiftly moving toward an open government and a citizen’s right to know — an international trend increasingly being supported by judicial decisions. Further, the right to know is a part of the freedom of speech and expression and the present secretive system, as implemented by the collegium system, violates this fundamental right. The principle of open trials and justice is highly essential for the fair administration of justice.
The current government led by Prime Minister Modi states that the introduction of NJAC shall be more transparency in appointment of judges. The supreme court of India, however, denied the fact and said there is a need for the even higher level of law for the appointment of judges as NJAC is not “perfect.” According to the SC, the bar council was invited to amend the NJAC saying that the committee must comprise of the Chief Justice of India and four senior judges of the supreme court.
Well, let’s say on this matter the government and the supreme court stand face to face, but the fact is still unanswered whether the stated amendment or even the current proposal bring transparency in the selection of judges and make the framework clear to the common public?
Accused under trial
Another drawback that arises from the above-stated drawbacks is the under trials of the accused. Precisely, for those who have committed a crime, it is OK, but is it fair for an innocent to spend more time in jail just for waiting for his trial? The Indian jails are full of people under trials; they are confined to the jails till their case comes to a definite conclusion. Mostly, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming it was decided against them. Moreover, all the expenses, pain and agony that are used by them to defend themselves in courts are worse than serving the actual sentence. Under trials are not guilty till convicted. On the other hand, the rich and powerful people can bring the police to their sides, and the police can harass or silence inconvenienced and poor persons, during the long ordeals in the courts.
Complexity
For many rural Indians, the Indian legal codes and justice system are too heavily laden with complex jargon and arduous demands of time and money. Traditional methods of conflict resolution, called “panchayats” or “dharmasatra,” were discarded during British colonial rule and never reclaimed after independence. These dispute-resolving mechanisms were inexpensive, required little specialized legal training, and worked in a cultural context that many Indians could understand. They are no longer part of the Indian judicial system.
Lack of interaction among people and courts
For any Judiciary to be successful, it is necessary that the general public must know the mechanics of judiciary. The society must participate in the court proceedings. However, it is the duty of public as well to make sure that they are participative enough to have the knowledge related to the judiciary. The law officer and makers must be close to the public and seek their opinion on a particular law or judgments.
Concluding Observations
There is no doubt upon the credibility of the Indian judiciary system. It is one of the largest judicial systems around the world having a law for almost all sorts of criminal activities. If we look at the history, the Supreme Court, since its inaugural sitting on 28th of January 1950 has delivered over 25000 reported judgments. But the issues of corruption, pending cases, lack of transparency in the judiciary cannot be avoided. Thus if the judicial system removes these backlogs, we might see Indian judicial system as the best judicial system in the world. Also, the faith of the common person in judiciary may be restored before it’s completely lost.
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Helpful article to know about the law’s loopholes. Appreciable
Thank you sir.
It’s demand as well as need of the time to have some improvements in the age old system and being optimistic, I think it’s already started and we will have some new changes soon in our system.