Mediocre judiciary

Facts and case apart regarding the mode of appointment of judges to Supreme Court and High Courts and unaware about the working in the Supreme Court; what is experienced in the High Courts is not pleasant. During the course of arguments in the said case the attorney General of India had questioned the quality and ability of high court judges. The law reports, the functioning of high court judges as is seen to day does not give a positive sign of their quality of judgments and orders. To some extent it might be affected by CIA that is Corruption, In competency and Arbitrariness.

There are several reasons in this respect. Some are routine like push and pull, uncle syndrome lobbing in the bungalows of the power holders and like nature.

That apart there is a sever misunderstanding that an advocate who has ample writ work is a leading and able lawyer. This misunderstanding is prevailing for several  long years. In fact there is nothing special in working on writ jurisdiction. There may be some special cases in which some constitutional problem is involved but on an average there is nothing like this. A lawyer who works on writ jurisdiction before high court comes in the light of the sitting judges and they start thinking how nice the lawyer is working.

An average man should know about the writ jurisdiction. Article 32 and 226-227 of the Constitution of India deals with it. The Article 32 related to Fundamental rights and a part of Article 226 also relates to Fundamental rights. On the matters of Fundamental rights high courts and SC has exclusively coextensive-concurrent jurisdiction. However the scope of Art 226 has some what larger and it deals with other 'rights' also. Art. 227 relates to power of superintendence over subordinate courts. When the jurisdiction of civil courts/tribunal/authorities  is barred under any law an aggrieved party may approach High Courts. High courts exercise power when there is no alternative remedy to an aggrieved party and in some cases there is no other efficacious remedy or there is expediency/emergency/exigency. If in such cases if the jurisdiction of civil court is not barred then such civil courts may be quite competent to try such cases. Therefore there is nothing special in the cases of writ jurisdiction. The only fact is that it is less time consuming but it is too costly also. A simple thing made too costly! Awful! It is just a case of bugbear!!-A thing that causes obsessive fear or anxiety.

Water finds its level. Most of the judges and advocates hardly works on civil side as it is time and head consuming work and less paid matter and therefore in courts work on writ side is done more and more. A civil advocate knows even in a small cause suit for recovery of Rs. 100/- only how much labour he has to do. For that he should know Small Causes Court Acts (provincial and state), CPC, Court Fees Act, Suit Valuation Act, Stamp Act, Limitation Act, Evidence Act, law of execution, jurisdiction of courts, knowledge of accounts and so many other basic things.

Advocates working on civil side are least preferred for elevation because there are very few judges who work on civil side and therefore they have no say in recommending the names of such advocates. It is generally observed that civil work is assigned to judges who are elevated from service cadre. However there are such judges who are exceptions in this matter and the plus point for such exception is that they can work in all branches of law with full ability and capacity. A lawyer who successfully works on civil side is most competent advocate who can be elevated to judgeship. But writ advocate can be compared as Meggi a popular dish and civil advocate as Sattu which is certainly not popular. Sattu also takes hardly a minuet or two to be prepared and also healthier too.

Seen from this angle and having good experience to evaluate judges and advocates it can be safely said that in recent years the standard of the judges is just average and that of mediocre and of not high quality. We have seen judges having no experience on civil and criminal side but were elevated as judges. We have also seen judges having worked on criminal side and were elevated as judges but there were and there are very few judges who worked on all sides and could be elevated as judges. An advocate who works on civil side certainly develops ability, capacity and understanding to work on all branches of law.

Now a day on an average working in court is just disposing of cases and not deciding them. It is like fast food services.  Advocates and judges do not want to go in depth of a case to do justice. Have no time to read pleadings, law and case law.  Like cinema or serials it has become a formula type justice.  It is forgotten that   there is deep relation ship between justice and application of mind, reasoning, logic, equity & law. 

What is said is of recent past. We have had judges having aura of confidence, knowledge, humanity and gracefulness. One of their qualities is that they not only go through the case law on different subjects but they also go through the main provisions of law and text books to have facet and crystal  knowledge about each and every aspect  of particular subject  matter of a  case.

After hearing the arguments they had given second though to the arguments advanced by the parties. Thus they had comprehensive study about each and every case. They knew that to err is human; error of judgment and error in judging are quite different things.

In present day on an average a judge has to deal with about 100-150 cases in a day and therefore there is possibility that the judge is not in a position to do justice in each and every case. Presently there are 1017 posts of high court judges and about 375 posts are vacant. It is therefore wrong to expect justice from courts and the manner in which general public expect. By establishing tribunal legal authorities etc the standard of justice has sharply reduced.

The process of selection of judges to district court level and higher courts requires being quality wise. Vigorous training to district judiciary is very much required.

Thanks

P.V.Namjoshi

108, Dashahara Maidan

Ujjain, M.P. 456010