'Law and Order exist for the purpose of establishing Justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress”. - Martin Luther King, Jr.
In a common law legal system like ours, there are three wings which give effect to the government policy where each of them performs their own set of functions. The legislature makes laws, the executive executes laws and the judiciary interprets laws.
In India, the Judiciary plays a vital role for the purpose of imparting justice to the people and also in safeguarding their rights and liberties. Its main function is to review whether the laws made by the legislature are made after keeping in mind the Constitution and to see that the laws so made, are not in violation of the Rule of Law.
According to Hans Kelson's pure theory of law, the legal system is a pyramid of norms over norms, with the apex norm being the Grundnorm. These norms restrain the arbitrary conducts of the individuals, who together constitute the social order. But there's one difference, the difference lies in the fact that how and to what extent this deviance is handled in the legal system. In the socio-legal order, this deviance is tackled by another person who is a part of the same legal system and is designated by the same system to handle this deviance and has the authority to inflict punishment on the deviant. Similarly, in our legal system, this 'another person' is the 'judiciary'.
By playing the role of a guardian and the administrator of justice in the society, the Judiciary helps in maintaining order and in punishing the violators of peace in society.
The Indian Judicial System is the bulwark of Indian democracy but at most of the occasions, this system is bogged down in many problems which are both internal and external. These problems threaten to erode the utility and credibility of our judiciary.
The law is meant to be followed and respected and it is good for a society to work within the bounds of law in order to function progressively, but What if the law so made, itself is bad?
This is the kind of condition where the Judiciary works in order to interpret the law in a way that it suits the situations of that particular society and in case no interpretation is possible, to declare the said law as invalid.
Therefore, the Judiciary is required to function actively, in order to make sure that no bad law is made. The term which has been used for this is ‘Judicial Activism' which refers to the interference by the judiciary in the legislative and executive fields which mainly occurs due to the inactivity of the other organs of the government to act effectively. The failure on part of the other wings of the government makes it imperative for the Judiciary to interfere in their sphere.
The two most prominent cases of Judicial Activism in India are the Bhopal Gas Tragedy case [1] and the Jessica Lal murder case [2]. In these two cases, the moment it was felt that money and muscle power would soon strangulate justice, the Judicial Activism prevented it and a just decision could be arrived at.
Two of the most eminent members in the Bar Council of India who are the most related ones with Judicial Activism in India are Justice P.N. Bhagwati and Justice Krishna Iyer.
But, what needs to be ensured is that the ‘Judicial Activism' shall not transform into ‘Judicial Overreach' i.e. the Judiciary shall not encroach into the spheres of the functioning of the executive and legislature unnecessarily.
In order to make justice easily accessible to people, it is very important to reform the judicial system and this approach to reform must be guided by a thorough understanding of the shortcomings and the needs of the system [3].
The growing politicization of appointments in the courts and increasing rate of pending cases, has made it imperative to deal with this situation as expeditiously as possible. It is also quite evident now-a-days that the Judiciary no more attracts the best legal talent due to the fact that there is a disparity in the incomes of lawyers and the judicial officers. So, in order to attract more talent in the Indian Judiciary to serve effectively, in the justice delivery system, it is important to improve our service conditions.
Corruption is like cancer, which is slowly spreading from the lower levels of the judicial system and is gradually creeping upwards. Majority of lower court judges including the corrupt ones are able to make their way up to the ranks of higher court judges, where they become more powerful as they become equipped with expansive powers, thereby overshadowing their misdeeds or corrupt practices. Even in cases where overwhelming evidence are found against any of the judges, their removal gets impeded by the cumbersome impeachment processes.
Another internal defect of Indian Judiciary is the ‘Delay in administration of Justice'.
If the Indian judiciary is to enjoy the confidence of the people, it could be achieved only by dedicated and conscientious work in order to retain the trust of the people in itself. Due to the lethargic and sluggish approach of the judicial system, it becomes difficult to administer justice to the society.
Justice is a contract of Expediency, entered upon to prevent men from harming or being harmed - Epicurus
It was very strongly emphasised in the case of L. Babu Ram vs. Raghunathji Maharaj [4] that one of the cardinal principles of law is that any sort of delay defeats justice which implies that there is an urgency of the need to bring in certain legal and judicial reforms to provide a cheap, expeditious and effective instrument for the realization of justice in the society.
The time taken for typical litigation to resolve itself is years and years. It could even be decades, and till then, the deprivation or denial of justice continues [5]. The system can yield results only if we abide by the norms of the system. Delay causes dismay and creates disillusionment in all those who knock at the doors of the courts.
Due to the delay in administration of justice, the faith of people in the judiciary is diminishing, and due to this lack of confidence in the system, there is an increase in the likelihood of the emergence of a state of lawlessness.
Just a little bit of tinkering here and there in the procedural laws won't suffice, what is required is a drastic change in the functioning of the judicial system in India in order to deal with this defect.
There are also several hindrances in the Independence of Judiciary which make it difficult for the judiciary to work effectively. The independence of the judiciary is an indispensable condition for securing the rights of citizens. If the courts are unable to enforce these rights and liberties in their true spirit, they will end up being merely show-pieces in the Constitution with no worth at all.
The key function of the Judiciary is to give protection to the common man from the offenders and lawbreakers, but the reality is that it is the political authorities which mostly influence the Judiciary and the end result of this is that even the most gruesome of criminals escape liability merely due to the fact that they are backed by robust political bodies. The Independence of Judiciary has been held to the Basic feature of our constitution [6]. That is why it is important to work in the direction of guarding this basic feature of our Constitution.
The excessive cost of litigation is one the most inconvenient and disadvantageous features of our judicial system. Due to the expensive nature of litigation, people are compelled not to pursue even ‘just claims' and 'defences'.
The cost of litigation includes the court fees, advocate's fees, process fee, etc. and this whole concept of the costly litigation process is colonial baggage which was introduced by Britishers for reducing the filing of frivolous cases. So, there is no reason why this should be continued in the Indian administration. Delivery of justice is the promise of law and to charge Court Fees is like selling the promise of law and flouting the constitutional duty of the State to provide justice to the people at their door step[7].
The judicial process shouldn't be such where a man goes in like a pig and comes out like a sausage. The judicial process is more like a path, the starting point of which is the ‘ought' and the end point of which is the ‘is', and the function of judiciary is to approximate the ‘is' with the ‘ought'.
- [1] Union Carbide Corporation vs Union of India, 1990 AIR 273; 1989 SCC (2) 540
- [2] Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
- [3] Pranab Mukherjee: ‘India needs urgent Judicial Reforms' – The Hindu (Oct 22,2013)
- [4] AIR 1976 SC 1734
- [5] 1 ARUN MOHAN, JUSTICE, COURTS & DELAYS (2009)
- [6] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225)
- [7] G.P. TRIPATHI, JUDICIAL PROCESS 7-9 (1st ed. 2013, Central Law Publications)
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Tags :Others
