The constitution of India which is the supreme law of the
land provides for a system of unified courts which comprise the higher
judiciary (The supreme court and the high court) and subordinate courts at the
district level (the sessions court) which are charged with the sacrilegious duty
of safeguarding civil liberties of the ‘Aam Aadmi’ and checking arbitrary actions
by the executive and judiciary. Thus, the courts have been empowered to act as
a bulwark against malpractices and uphold the spirit of the democratic ideals
enshrined in our constitution. Our experience in the six decades of the post
independence phase has illustrated how the courts have proactively attempted to
address myriad issues such as access to impartial justice, lowering costs, emphasizing
on modernization of courts, boosting judicial infrastructure, improving the
judges to citizen ratio etc.Several innovative models such as Lok adalats, ADR
mechanisim, NALSA, tribunal system etc were adopted and implemented with the
intention of achieving inclusive justice.
However,
in spite of the commendable job done by the system of courts through various
landmark judgments, the judicial situation in our country continues to be in a
state of shambles. The higher courts in our country are overburdened with
alarming pendency of cases, red-tapism, huge shortage of qualified judges,
inadequate judicial infrastructure, archaic procedures and laws, non-transparency
and non-accountability etc to name a few. The higher judiciary has become the
preserve of the elite group of legal personalities who have the resources to
lobby for key posts. Influence, money and lobbying play a pivotal role in securing
important positions in the higher judiciary. Constitutional procedures laid
down to ensure impartial selection of judges, lawyers, advocates etc are
routinely flouted and loopholes in the provisions have been exploited to the
hilt ,in order to accommodate persons dubious
reputation to the high judicial offices. This has literally shut the door for
many talented lawyers, advocates and judges having excellent track records of
probity in public life from further pursuing a career in the judiciary.
Statistics indicate that a major chunk of law graduates who aren’t able to
secure employment in the courts of our country have chosen alternative careers
ranging from entrepreneurial businesses to corporate law. This is an ironic situation
given that the judiciary in India remains thoroughly understaffed.
The increasing difficulties in carving out a career in the
legal machinery has also resulted in strain on the existing courts and created
avenues for corruption. The higher judiciary in recent times has only been able
to engage itself in addressing high profile cases highlighted by either the
media or the civil society. While various cases involving the vulnerable
sections of the society have been pending in the courts for years, they have
either received a step motherly treatment or put in cold storage. With no one
to fight for their cause, such cases never see the light of the day. As the old
saying goes… “Justice delayed is justice denied”, by eclipsing the
disadvantaged and the poor from getting free, impartial and speedy justice our
judicial system has by and large remained ineffective for the voiceless millions.
Exclusion of the vulnerable sections from the ambit of justice is a heinous
crime in a democratic society which envisions ‘social, economic and political
justice for all’.
What is the way out?—while a singular solution to this
quagmire would be impossible to arrive at, we can attempt to follow the
bottom-up approach to achieve the goal of inclusive justice. The probable
solution could be a system of ICT enabled and networked rural courts which can
service manageable populations and settle disputes which the common man
encounters in his/her everyday life. While such a solution appears to be a simple , in
reality it would require a paradigm shift in the mindsets and attitudes of the
higher judiciary and the legislature. The constitution of India U/A 312
provided for an all India judicial service which would recruit judicial
officers to be filled up on the basis of an All India completion and assign
them at all tiers of the judiciary. Such an All India service was designed on
the lines of the All India Civil services. But for reasons unknown, no efforts
were undertaken to create the service. Neither did the Rajya Sabha take a
proactive step nor the judiciary direct the government to create the service.
While various reasons such as ‘burden on the public exchequer’, infeasibility etc
have been cited, the way I look at it, both the legislature and the judiciary
are happy with status quo. Apart from the status quoist mindset that continues
to plague our policy makers into inaction, vested interest are also at play by
and large. In an effort towards preservation of its importance and prestige the
judiciary is interested in remaining largely elitist and inaccessible. The
legislature on the other hand is reluctant to further empower the judiciary with
funds and functionaries as it fears increase in judicial activism. This
according to me could be a probable explanation as to why paltry funds are
sanctioned for modernization of the judiciary, increasing the number of judges,
or for that matter creating ‘gram nyayalayas’.This status quoist, self-preservatory
attitude militates against the very ideals of our constitution and is
counterproductive.
There is an urgent need to end elitism of the judiciary. The
need of the hour is to create an All India cadre of judicial officers selected impartially
on the basis of merit and assigned across the 7 lakh village Panchayats as
judges of gram Nyayalayas. Law graduates who have cleared the bar exam should
be allowed to work at these grass root courts and promotions should be based on
the merit they show while trying these cases in the formative phase of their career.
The creation of the All India judicial service would also offer an excellent opportunity
to carry out tasks such as:: simplification of legal procedures; de-jargonisation
to make court proceedings and records intelligible to the common man; gradation
of cases on the basis of magnitude on scientific lines; disposal of cases
quickly through adhoc benches; meeting shortages of legal personnel etc.All
this could ultimately help in achieving the ideal of inclusive justice.
