1. INTRODUCTION
‘Judicial process’ is the method of attaining justice[1] which seeks to achieve the desirables[2], and prohibit undesirables[3]. ‘Justice’ [4], is itself an irrational concept [5] , However in a layman word justice means absence of fear which is possible only when there is - lack of arbitrariness , freedom of liberty, and equal access to the quick, affordable, satisfactory, credible dispute settlement forum . The essence of justice lies in rule of law which requires that law of land is stable and not arbitrary that is to say- law is not ruled by the changing government rather the government and its instrumentalities are ruled by the law . In the modern times there are two interpretations of the Rule of law - the first the more traditional view is that of the plenary adhering to the rules of the laws while the second view allows the encompassing of the ideal rules based on criteria of morality and justice within its province. Modern states follow the second principle of the rule of law because a law which is stable becomes oppressive after some time, due to its failure to satisfy the needs of the progressive society.
The ideal notion of the rule of law can be traced in ancient Indian legal system which laid greater emphasis on the duty, by making the king as the head of administration. Dharma in ancient India did not denote any kind of religion or right but only the performance of the duties[6] . Everyone had to perform his assigned Dharmas (Duties) .The duties assigned to the king was known as Rajadharma which was a combination of several Dharmas , hence it was considered as very pious and supreme Dharma. Although the king was the fountain head of the administration of justice, his powers were limited by the norms of Rajadharma . He neither could impose arbitrary taxes nor could favour his relatives, and if he dares to deviate from the performance of the norms of Rajadharma , the punishment prescribed for him was thousands times more than an ordinary individual . There was no distinction between weaker and stronger and the weaker was able to prevail over stronger with the assistance of the king if his rights or liberty was encroached. This duty approach setup of Rajadharma was distorted with the coming of the Moughals and subsequently after the coming of Britishers.
Power is like a river, if controlled, it brings happiness and prosperity otherwise destruction and curse . Justice[7] without power[8] is inefficient and power without justice is tyranny. So in order to make power of the government purposive, efficient and in interest of the people, India adopted a normative written constitution[9] on 26th day of November 1949 demarcating the power arrangement between the three organs of the state namely executive, judiciary, and legislature . The constitution also kept few most cherished values of the humankind beyond the reach of these three organs[10]. Constitution seeks to remove three kind of disparity namely social, economic and political , so that weaker can prevail over stronger with the help of law if his right is violated and, each organ of the state is required to work in this context without violating the power arrangement of the constitution .
The author in this paper seeks to deal with the critical analysis of Indian judicial process by analysing its present and past scenario, keeping in mind constitution of India as the Grundnorm of country. This Article is based on pure normative understanding of laws while ignoring any practical or moral difficulties and solely devoted for academic purposes.
2. JUDICIAL PROCESS IN ANCIENT INDIA
The Policy of self-restraint was the governing principle in ancient India, which was based on norms of righteous conduct named Dharma[11]. There was no sanction and People used to follow Dharma on their own, because of its intrinsic merit[12] . however this ideal stateless society didn’t last for a long time as some person out of , selfish worldly desires, began to flout dharma and created a situation of 'Matsyanyaya' (big fish devouring small fish) . This situation forced the law abiding people to search for a remedy, which resulted in creation of the institution of kingship[13] and formulation of "Rajadharma" (law governing kings), which was the synthesis of all Dharmas[14]. The object of Rajadharma was to assist and support the achievement by individuals of the threefold ideals (Trivarga[15]), and to ensure that they secure wealth (Artha) and fulfil their desires (Kama) in conformity with Dharma and do not transgress Dharma. Dharma had a very wide connotation [16]involving social, moral[17], legal religious aspect. Since Dharma was entirely dependent upon the effective implementation of Rajadharma, it was considered as supreme Dharma.
Dicey regarded supremacy of law is an essential of the “rule of law” in 1885 . This supremacy of Law has long before found prominence in the principles of Raja dharma , the constitutional law of ancient India .[18] Rajadharma is a classic example of trans- personalized power system which did not allow any personalized or depersonalized power to take over the requirements of justice .
3. ATTRIBUTES OF ANCIENT LEGAL SYSTEM
The main attributes of ancient Indian legal system as derived from social and legal literatures can be summarised as below:
(1) There was rule of law - Unlike western kings whose command constituted the imperative law, in ancient India Dharma (law) was a command even to the king and was superior to the king . Rules of Dharma were not alterable according to the whims and fancies of the king . The prevalent doctrine was that 'the law is the king of kings'. The doctrine that 'the king can do no wrong' was never accepted in our ancient constitutional system. If the king violated the Rajadharma the punishment prescribed for him was one thousand times more penalty than what would be inflicted on an ordinary citizen.
(2) Sources of laws (Dharmas) were based on following priority orders - Vedas/Shrutis, Dharmasastras,The Smrities, Mimansa, Nibandas or commentaries . Customs and sadhachars were also applied if they found in conformity to the Dharmas.
(3) There was separation of power- King had no legislative power; it was vested in a sabha (committee) of wise people. King had only corrective power, thus he could invalidate any custom if it was inconsistent with the Dharma but can’t create a new law (Dharma). Though the court presided by the king was the highest court he had no direct role in judicial process where an elaborate system of judiciary consisting of royal courts[19] and people’s tribunal was operational. King was required to exercise his judicial authority in accordance with the opinion of judicial officers assisting the court. These judicial officers were under a clear mandate not to connive with the King when he acted unjustly. The judges were under an obligation to protect the Dharma even if their decisions were against the wishes of the King. Thus in ancient India there was independent judiciary and independent legislature.
(4) Access to justice was very easy- Rajadharma envisaged a mechanism wherein the mere fact of information that one’s right had been violated was enough to set the law into motion. The King, under the codes of Rajadharma was bound to take cognizance, and therefore bringing a matter to his notice was enough to render it fit for judicial proceeding to redress the grievances. Thus the king was supposed to restore the stolen property to its owner and if he failed in performance of his duties he had to pay the owner the actual cost of the stolen property.
(5) Procedures were not allowed to defeat the justice- Emphasis was on substance not on form. The method of inquiry was of inquisitorial nature where judge played an active role in bringing the truth and limited aliens (like modern advocates) were allowed so that parity of power can be maintained .,
(6) The principle of "the greatest good of the greatest number", according to which, in order to secure the good of a large number of persons, injustice could be caused to a small number of persons had no application in Ancient India. The ideal laid down was that all the people should be happy (Sarve Janah Sukhino Bhavantu).
4. PARITY OF POWERS AND CRATOLOGICAL ANALYSIS OF ANCIENT INDIAN LEGAL SYSTEM (JUDICIAL PROCESS).
“Law is the king of the kings; nothing is superior to the law; the law aided by the power of the king enables the weak to prevail over the strong.” [20]
The beauty of this verse is that it emphasis on the parity of power between the parties and if there is no parity of power than it is the duty of the king i.e., executive to provide help to the disadvantaged so as effectuate the equality principle. It also shows that the law was recognised as a mighty instrument for the protection of the individual rights and liberties. Whenever the right or liberty of an individual was encroached upon by another, the injured individual could seek protection from the law with the assistance of the king, however, powerful the opponent (wrong doer) might be. Thus there was parity of powers between the individuals to seek the equal protection of laws.
4.1 Cratalogical Analysis of Ancient Judicial Process:-
If we analyse the ancient legal system on the basis of power spectrum , we can say that all six power spectrum bands are balanced in equilibrium to give a just legal system because head count was satisfied with a very high degree, time count was also satisfied because of quick contemporary judgments, ethical count is satisfied because law (Dharma) was the shared conviction of the society having maximum social and moral values , coercion band is satisfied because Praja (people) and Prajapalak(king) both were to follow the dharma in their conduct, interest and influence count is satisfied because vesting of power was in depersonalised manner avoiding the arbitrariness and king was subordinate to the Rajadharma. Besides it just upholding the interest of the public and having positive influence to mass was the rule.
5. JUDICIAL PROCESS IN MODERN INDIA
After independence India adopted a normative constitution. The present Indian judicial process is governed by British imposed adversary system even though there is no mention of it in the constitution. Main attributes of this system can be understood under following heads:–
5.1 ACCESS TO JUSTICE
The term access to justice is variable according to the variation of the definition of justice. Earlier access to justice meant merely the aggrieved individual’s formal right to litigate or defend a claim but now it means an equal right of having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum.[21] Modern access to justice can be categorized into formal and informal access to justice. The formal access to justice is basically adjudication of disputes by the courts which follow the rules of Civil and Criminal Procedure. Whereas informal access to justice includes alternative modes of dispute resolution such as Arbitration, Conciliation, Mediation, Lok adalats and Nyaya-Panchayats , which are merely supplementary in nature to the court system . They are not bound by the provisions of C.P.C and I.P.C but have to follow the principles of natural law. Informal and formal modes of justice both are against the principles of parity of law devised by Article 14 of the constitution, because in informal modes of access to justice one has to often compromise with his legal rights in interest of time, cost of money etc. which is very much against the guarantee of Article 14 and duty imposed on state therein .
5.2 HURDELS IN ACCESS TO JUSTICE
Formal modes of access to justice also has many drawbacks which are discussed below-
(1) Law of limitation[22]: The aggrieved person has to satisfy first of all that his suit is not barred by the law of limitation Act 1963 and if barred by that law the judge may or may not entertain his suit. Thus it is absolute denial of Article 14 which imposes unqualified duty on state to provide equal protection of laws and is anathema to any kind of arbitrariness. Law of limitation is nothing but a restatement of exploiting British imposed law of limitation Act which is hit by Article 13(2) also.
(2) Court fees: With the institution of the suit a court fees is required as determined by the court according to the provisions of the court fees Act of 1870, and on failure to pay the court fees or postal charges the suit may be dismissed[23]. This high cost of court fees compels the litigants to abandon their just claims and defences. Here justice is not given but sold. Thus court fees Act is unconstitutional under Article 13(2) read with Article 14, which was originally a method of raising fund and exploitation by ruler on ruled so that there can be less accountability of the state . It also does not satisfy the ethical, time and other essentials of the power spectrum[24].
(3) Advocacy : Advocates are inseparable part of the adversarial system wherein the role of judge is like a referee who decides the case on account of the performance of the both partie’s advocates . He never intends to provide the justice by bringing the truth, but to award the best competitor. Thus in this situation , the determining factor for the judicial process and justice is the competency of lawyer which ultimately depends upon the financial capacity of the party . This is absolute denial of the parity of power guaranteed by Article 14 of the constitution.
(4) Procedural hurdles: After institution of the suit the aggrieved person has to go through the procedures of C.P.C or Cr.P.C which does not reflects the values of the constitution but the values chosen by the colonial masters. The main procedural hurdles can be summarised below –
a. The aggrieved person has to prove that legal wrong has been committed against him by the defendant.
b. The aggrieved person has to pay the cost of all kinds of judicial processes. [25].
c. Under adversarial criminal system the rule is that unless a person proved guilty beyond reasonable doubt he is innocent but this rule is violated by the court when it refuses to give bail to the accused on ground of making a classification between Bail-able and non Bail-able offences under sec 436 and 437 Cr.P.C .
(5) DELAY : The aggrieved party has to face inordinate delay in getting justice due to unnecessary excess time given in filing of written statement ,counter statement , amendments in plaints , filing of unnecessary affidavit , Adjournment at every stage of the proceeding . Professional interest of the lawyer in prolonging the life of the suit , vexatious issuing of interlocutory orders, huge arrears of cases are other reasons for causing delay in getting justice. Even if the aggrieved person gets the decree its execution is not easy. Now justice is a generation to generation fight over one’s legal right . Examples of delay can be seen in Bhopal gas tragedy case , Rudal Sah case[26] , Mohini jain case[27] etc.
5.3 DELIVERY OF JUSTICE
Delivery of justice is basically the part and parcel of the executive branch of the government popularly identified as the access to justice through administrative authorities. Article 256 gives a supervisory power to the union over state for compliance of laws, and Article 356 read with Article 365 is the consequential result for non compliance of constitutional obligations by the state.
But when the executive fails to perform its duty , the courts venture to deliver justice as a corrective measure. Article 14 casts a duty on the state which also includes judiciary to provide justice by giving equal protection of laws to all its citizens. But it has been seen that on many occasions judiciary has failed to provide the justice according to the provisions of constitution and statutes. Its analysis can be done through following case studies-
6. CASE ANALYSIS
S.C. Advocates- On- Record Association v/s Union of India[28]
FACTS: In this case a class petition was filed by the petitioner with regard to the filing of vacancies in Supreme Court and high courts. The issue in this case was concerned the role of CJI in appointment, transfer and fixation of the number of judges in Supreme Court and high courts.
JUDGMENT [29] : Supreme court held that -
(1) The initiation for the appointment of the judges in supreme court and High courts shall be taken by a collegiums, wherein decision be taken by the chief justice of India after consultation with two senior most judges of supreme court . The President in matter of appointment of supreme court and high court Judges, is bound by the opinion of the chief justice of India and the term consultation used in Article 124(2) and Article 217(1) means concurrence.
(2) The opinion of chief justice of India does not have mere primacy but is determinative in matter of transfer of high courts Judges under Article 222.
(3) Number of judges in high courts is sufficient but Supreme Court is empowered to order the union to constitute a committee in future for fixation of the number of judges.
CRITICAL ANALYSIS OF THE JUDGMENT: This case is criticised on the following grounds –
(1) Supreme Court has destroyed the power arrangement envisaged by the constitution i.e. the Grund-norm of the country. It has exercised its authority beyond the power conferred by the constitution. The term consult cannot be interpreted as concurrence. Power lies in President, what is required that he shall consult to the chief justice in case of appointment of a Supreme Court judge. In case of appointment of a high court judges he is required to consult such number of high court and supreme court judges as it deem fit . Our constitution is a normative constitution based on check and balance of powers among three branches of the government, which has been destroyed by this per-inquirium judgment . No doubt the Supreme Court is given the inherent power to render justice under art 142 but that power is only for approximation of is to ought within the parameter of the constitution and statute, not to override the constitution or statute.
(2) Making consultation as concurrence amount to amendment in the constitution without procedure established by the constitution.
(3) Article 222 says that President may after consultation with chief justice of India transfer a high court judge. It means that the president is not bound by the opinion of the C.J.I. Thus the statement that the opinion of chief justice of India does not have mere primacy but is determinative in the matter of transfer of high courts judges ,is per inquirium .
(4) Determination of the number of judges in courts falls within the domain of the executive, not of the judiciary.
(5) Thus we see that this judgment does not stand the test of constitutionality being an arbitrary, per inquirium decision, in violation of the art 14 and render the judges liable for punishment under section 166 of I.P.C for deliberately violating the provisions of constitution .
Maneka Gandhi v Union of India [30]
FACTS: In this case the passport of the Petitioner was seized on ground of ‘interest of public’ by the central government under section 10(3)(c) of the Passport Act 1967 without giving her opportunity of any hearing . Hence she filed a writ petition under art 32 on following grounds –
(1) Section 10(3) (c) is violative of Article 21 as it does not prescribed any procedure for the seizure of the passport.
(2) Section 10(3) (c) is violative of Article 14 as power conferred to the delegate is excessive .
(3) Section 10(3) (c) is violative of Article 19 (1)(a) and Article 19(1)(g) .
(4) She was denied from the opportunity of hearing which amounts arbitrary exercise of power in violation of Article 14.
JUDGMENT: In this case supreme court observed (not given the judgment) after assessing the evidences that the seizure of the passport was mala-fide in violation of Article 14 , 19 , 21 . Procedure established by the law means a procedure which is just, fair and reasonable. Rule of Audi Alteram Partem is a part of natural law protected under Article 21. Illegal seizure of passport violates Article 19 (1)(a) ,19(1)(g) having a direct bearing on right to food protected under Art. 21. Realising that there was fatal defect and decision of the court would render the central government’s order as void, the attorney general gave the assurance that:
“The opportunity of hearing and representation shall be given to the petitioner within two weeks and representation will be dealt with expeditiously in accordance with the law “. On getting this assurance the Supreme Court disposed the case.
CRITICAL ANALYSIS OF THE JUDGMENT: This case is criticised on the following grounds-
(1) Duty of the Supreme Court is to render Restitutive Justice under Art. 14 but it failed to render the complete justice and hence, Article 142 remained unanswered.
(2) The judgment of supreme court holds the authority of law under Article 141, and so it is expected to resolve all the issues once for all in the form of judgment not observations. It is a justice delivery institution not to a compromise making body.
(3) Supreme court failed to take the notice of Section 166 of IPC under Section 57(I) of the Indian Evidence Act 1872 , and punishing the wrongdoers who arbitrarily seized the passport .
ADM Jabalpur v/s Shivkant Shukla[31]
FACTS: In 1975, the president on the advice of the P.M. declared emergency under Art 352 on the ground that the security of India was threatened by ‘internal disturbance’[32] and issued an order under Article 359 suspending the right to access to the courts for the enforcement of one’s fundamental rights. The two main questions which fall for consideration in this case was - Whether in view of the Presidential order issued under Article 359(1), any writ petition is maintainable before a high court under Art. 226 challenging the legality of an order of detection on ground that the order is not under or in Compliance with the Act concerned or is vitiated by mala fides or is based on extraneous considerations. Second, if such a petition is maintainable, what is the scope or extent of judicial scrutiny?
JUDGMENT : Supreme court by majority (except Justice H.R. Khanna) held that emergency is declared to overcome certain imminent contingencies , and permission to enforce one’s fundamental right would frustrate the object of emergency , hence no person has locus standi to challenge the validity of his detention during the operation of art 359(1) , however wrong his detention may be .
CRITICAL ANALYSIS OF THE JUDGMENT : This case can be criticised on following grounds –
(1) Rule of law[33] is the antithesis of arbitrariness; the State has got no power to deprive a person from his life or liberty without the authority of law. The vesting of power to detention without trial in the executive, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness which is violative of Article 14 read with Article 19 (1)(a)to (g), 20, 21 and 22 [34].
(2) A Presidential order under Article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of fundamental rights mentioned in the order, but it can’t deny to avail the procedural safeguards in the Preventive Detention Act .
(3) The court failed to take notice of the law of tort and IPC under sec 57(1)) of Indian evidence Act regarding wrongful confinement of the petitioner and penalising the wrongful authorities.
(4) Nowhere in the constitution it is prescribed that suspension of enforcement of fundamental rights means denial of testing the legality of exercise of the power under the constitution, hence supreme court and high courts both are competent to issue the writ of habeas corpus under art 32 and art 226 respectively .
Kasturilal v State of U.P [35]
FACTS : In this case the appellant was apprehended by police and some silver & gold were seized and deposited by the police in police Malkhana, from where the Gold was misappropriated by a constable who fled to Pakistan .
JUDGMENT: The court held depositing of gold by police, in police Malkhana is a soverign function and hence the government is not liable for the misappropriation of gold.
CRITICAL ANALYSIS: : This is an absolutely wrong judgment because -
(1) The court found that there was gross negligent on part of police authorities but it failed to punish the wrong authorities under section 166 of I.P.C[36].
(2) Neither keeping Gold in Malkhana nor its misappropriation amount to the sovereign function , sovereign function are those function which can be performed by the state only in comparison to a private person .
(3) Even if keeping gold was a sovereign function of the state , the state(judiciary) is duty bound to give Restitutive justice under Article 14 . The court also failed to take judicial notice of law of tort under sec 57(1) of Indian Evidence Act 1872, that where there is infringement of a legal right there exists remedy. Thus in this case there was absolute denial of justice.
FACTS: The Petitioner filed an appeal against the death penalty awarded by Calcutta high court for committing an offence under section 376 and 302 of I.P.C against a minor girl.
JUDGMENT : The court held that the act of petitioner amounts to the ‘rarest of rare’ case and hence is liable for death penalty.
CRITICAL ANALYSIS :
(1) According to Article 21, No person shall be deprived from his personal life and liberty except procedure established by law and that Law must be just, fair and reasonable. Where a death penalty is given to a person, he cannot exercise the rights conferred under Article 19(1)(a) to( g), because it amounts to the absolute restriction on those freedoms which is unconstitutional as law requires only reasonable restriction on those freedoms on grounds prescribed under Article 19(2) to (5). Besides it section 302 of I.P.C is a pre constitutional law which is also hit by the Art 13(2) of the constitution.
(2) Doctrine of rarest of rare case does not have the quality of predictability according to law but life of a person is kept at the sweet will of the judge which is against the rule of law envisaged by the constitution under Article 14.
(3) Petitioner was given double punishment for the same offence in violation of Art 20(2) - first punishment he faced was 14 years living in jail under death row and second was the capital punishment itself .
Examples of gross constitutional faults can also be seen in Ramjawaya kapoor[38], A.K.Gopalan[39] , Champakam Dorairajan[40] etc. cases also.
7. CRATOLOGICAL ANALYSIS OF THE PRESENT ADVERSERY LEGAL SYSTEM ON GROUNDS OF THE POWER SPECTRUM:
Power is the ability to affect another by its exercise. Power has a close interrelation with the law. So in order to understand the role of power in creating, supporting, and changing or subverting law Jurist Julious stone provides six power bands to verify the proper exercise of power . When we examine the adversary system on grounds of these power bands we find following results-
(1) Coercion Spectrum: The coercion spectrum is concerned with the degree of coercion involved in the power relation. A valid exercise of power or any valid law must be devoid of coercion or if at all necessary to the minimum. It is beyond doubt that the non accessibility of justice because of high cost and other procedural hindrances can be termed as the “vulgar notion” of power by the power holder. Rich party can put down the opponents by endless delays and they can drive up expenses by costly discoveries. Poorer parties often cannot afford to pay for investigators, expert testimony, and lawyer’s time and so on. Many possible witnesses are reluctant to come forward because of the possible harassment and humiliation in cross examination, time lost from work, and so forth. All these acts as excessive coercion.
(2) Ethical Component Spectrum: This count deals with ethical and moral aspects of law and it emphasizes that every law, decision, or policy must satisfy minimum standards of ethics and morality of the society, which differ from society to society. A uniform standard of ethics cannot be laid down for it differs from society to society. As has already been mentioned justice in the present system is hugely influenced by the counsel representing the party. There is no parity of power. Many times justice is not delivered. Adversarial process hinders peaceful resolution of disputes. Lawyers trained to be partisan advocates to promote the interest of the clients, often discord and tensions.
(3) Interest Affected Spectrum[41]: This count draws attention to the problems faced by the subject (in this case litigants),as a consequence of improper exercise of power, that is when their interests are affected by and subordinated to the interests of power wielders(State). In this case victim has to himself fight for justice and state does not provide for any considerable assistance. There are many procedural hindrances in his way and many times such victim is not able to access justice
(4) Influence Spectrum: This spectrum means the degree of influence exerted on the person subject to power. This band differs from the coercion band as influence is a positive but sanctions are a negative concept Influence has independent existence whereas coercion is a nonentity without fear and sanction. In adversarial system this spectrum is completely demolished. Rich can easily dodge the clutches of law; advocates can give him ample support. Such thing sets up as an example for other law abiding citizens who feel that they can also get away with law.
(5) The Head Count Spectrum: This spectrum is an inherent feature of all the four above mentioned spectrums barring the Ethical component. This count signifies the number of persons affected by any decision or law. The underlying idea of this band is to protect the interests of maximum number of persons. Justice is the first virtue of social institutions. Basic aim of legal system is to provide justice to every man in the society. But today, in India, our legal system has undergone such a deep state of crises that it is not able to provide justice to common man. Justice is not delivered to the majority of citizens because of various flaws embodied in the present system. Few amongst them are mentioned above. Justice delivery mechanism has badly failed to come up to the aspirations of half-clad and half-hungry masses of independent India.
(6) The Time Count Spectrum: This is by far the most important aspect of all the six power spectrums, because violation of the Time Count spectrum nullifies all other aspects. The time-count spectrum concerns itself with the stability of the other power spectrums through time. This band has two facets- One they are self-promotive in the sense that they grow stronger by their own continuance. The second facet of time count is delay - delay acts as an impediment to access and realization of justice and that preventive, as well as and protective remedies should be provided without delay. Both these facets are not fulfilled in the adversarial system. There is inordinate delay in the present system because of various reasons, few of them have been mentioned already. Moreover it has not changed to a stronger position .
Thus we find that present adversary system doesn’t answer the requirement of justice and has defied the promise of preamble of the constitution to provide (justice, social, economic and political).
8. SUGGESTIONS TO IMPROVE JUDICIAL PROCESS
The effective judicial process requires the cooperative effort of all three organs of the Government. To this effect I suggest following reformation which should follow by the executive, judiciary and legislature -
Legislature: Legislature being policy formulator must perform following works-
(1) Parliament must in exercise of its power under article 32(3) empower the lower courts to exercise writs jurisdiction within their local limits, so that common people may have easy access to the justice.
(2) Parliament must in consultation with judiciary frame a time limit within which the matter should be disposed of and its failure to attract the punishment.
(3) Parliament should make necessary amendment in advocate Act 1961 to prevent the frequent entry of incompetent person as lawyers.
(4) Alternative dispute resolution system must be proper funded and equipped with necessary infrastructure, So as to reduce the arrears of cases
(5) Parliament should by an Act nullify the judgment given by Supreme Court in Ram Jawaya case and Re-presidential Reference case.
(6) Legislature by law must fix the rules according to which the quorum of the judges be fixed, so as to avoid the personal influence of the convening authority on decision.
(7) Presently there is no supervisory jurisdiction of Supreme Court on High courts to prevent the misuse of their power except in appeal by quashing the judgment. They have become the actual lords. So Parliament should empower the Supreme court to ask the explanation from a High court judge when it found that he had exercised his power illegally .
(8) Parliament by law must establishes an independent body consisting of impartial legal experts to enquire into the conduct of judges whose decisions is quashed by Supreme Court or High Court in appeal.
(9) The parliament through a law should empower UPSC to hold an All India Judicial services examination to fill up the vacancies in High Courts and no judge of high court be appointed in his home state except chief justice of that high court (as he can run the administration more efficiently than non regional judges as a good administrator requires understanding of local language etc.); so that the concept of uncle judges can be removed. The vacancy in Supreme Court must be filled up by a selection committee having statutory competence, which consists of chief justice of India, prime minister, law minister, leader of opposition party in Lok Sabha and President. The decision must be taken by the majority of 3:2 and if it is 2:2 the decision of president should be final to elevate or not a high court judge in Supreme Court.
(10) An amendment in the constitution be made so as to make Article 39A as fundamental right. Article 13(3) should also be amended and the word personal contract should be inserted.
(11) Section 197CrPC should be repealed because it is against Article 14 as it gives unequal protection to the corrupt officers and protect their illegal actions and hence is an hindrance in execution of 166 IPC.
(12) Distinction as to bailable and non-bailable offence under section 436 and 437 CrPC should be abolished because it is against Article 14, 19, 21. There is no reasonable classification as accused is treated as per the convicted person even though there is violation of presumption of innocence unless proved guilty. Denial of bail also amounts the complete denial of freedom protected under 19(1)(a)-(g) which is unconstitutional under article 13(1) .
(13) Guidelines given by the Supreme Court in D.K Basu and Joginder Singh cases should be incorporated in section 41 Cr.P.C for arrest without warrant. Statutory recognition gives higher degree of protection than Supreme Court guidelines.
(14) An amendment in section 101, 102 and 103 of Indian Evidence Act be made so as to provide that it shall not be applicable under article 32 and 226. Under these Articles when Petition lies it shall be the state upon whom burden of proof shall lie that its action was constitutional. Because in absence of this amendment the petitioner who is already victim of wrong or injury or whose fundamental right is violated has to prove that whatever happened against him was unconstitutional, which is against the ethical and coercion band of power spectrum.
Executive:
(1) Role of executive is policy implementation and ordering of facts from is to ought. Delivery of justice is basically falls within the province of executive which is rendered through access to the administrative authorities. Article 14 casts an unconditional duty on state to provide equal treatment of law and equal protection of laws to every person. Unfortunately due to lack of ineffective implementation of Article 256 read with 365 and 356, the state often does not fulfil its constitutional obligation; hence the union government should use these supervisory and consequential provisions to compel the states to fulfil their duties.
(2) President and governor before giving his assent to an Act must satisfy himself that the Act is in consonance with the provision of the constitution because he has taken the oath under article 60 or 159 to preserve, protect and defend the constitution and the law.
(3) The President under article 124 (3) (a) should also appoint the distinguished jurist as Supreme Court judges.
(4) The Government should implement the guideline given by the Supreme Court in Prakash singh case, so as to separate the investigating police from the law enforcing police and also to make the police free from frequent transfers, political interference etc.
(5) The government should establish more fast track courts to remove the arrears of cases. It should also equip the judiciary with the modern technology like e-filing of suits, amendments, affidavits, etc. It should also enable the police with these modern technology.
Judiciary
The role of judiciary is policy control which comes into picture when executive fails to deliver the justice. Its importance lies in the sense that it is the final hope of justice for a victim. In order to make judicial process effective the court must observe following guidelines-
(1) Judiciary must keep it mind that its work is to say authoritatively what the law is i.e. policy controlling. Provisions of Article 142 and 226 of constitution, Section 482 Cr.P.C and 151 of C.P.C though gives inherent powers to the supreme court and high court to render complete justice , it means only to fill the gap within the parameter of the constitution and statutes and it does not mean to supersede the constitution or statute as it did in Ramjawaya kapoor and S.C Advocates on Records cases. The decision that consultation means concurrence amount the amendment in constitution without procedure and the statement that Indian government system is based on Westminster form of government and not on advanced presidential form of government amounts to change the nature of government from republic democracy to oligarchic democracy which is not permitted to the judiciary.
(2) When a petition is made to test the legality of any decision of the subordinate court/tribunal the court should only issue the writ of certiorari if grounds are satisfied, it must not issue other writs unless the statutory remedies are exhausted.
(3) The chief justice of India in exercise of his power under Art 130 should constitute at least its four regular benches in and for the eastern, western, northern and southern regions to hear appeals from regional high courts. It will help the people to have easy access to the Supreme Court. It is also in consonance to the time, ethical, and influence bands of the power spectrum.
(4) Judiciary must accept the norm of democracy that justice not only be done but it appears to be done. How government could fight against corruption if judiciary itself against the Right to Information Act, regarding disclosure of assets on ground of being not a public servant but constitutional authority. It amounts to double standing as on one hand they claim salaries and other benefits on ground of being public servant and denying the liability to disclose the assets by saying not a public servant . However true fact is that they are public servant within the meaning of sec 21 I.P.C.
(5) Supreme Court must also correct its illegal wrong judgments which are still being followed in this country.
(6) They must provide justice when aggrieved party knocks its door and not try to compromise the dispute as it did in Maneka Gandhi case, because Art 14 guarantees Restitutive Justice .
(7) Judges should play an active role in bringing truth and not merely being a silent spectator of dispute.
(8) There should not be presumption of constitutionality of the Act because it tends to presume a preponderance of power in favour of one party and tilts the balance unjustly. This totally affects the principle of parity of power which is ensured through guarantee of equal protection of laws under Article 14 as well as Article 13(1) and 13(2) respectively. Asking the injured party to prove the wrong or injury suffered destroys the guarantee of equal protection of laws. Such an opinion on part of court is extremely low on the ethical count of power spectrum.
OTHER REFORMATIONS
(1) Section 166 of IPC, 1860 should be enforced ‘which provides “Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. “. Under Article 14 of the Constitution it the duty of judiciary (Judiciary is a State as laid down in A.R. Antulay v R.S.Nayak AIR 1988 SC 1531) to render justice but where it fails, it amounts injury under section 44 IPC. Judges being public servant within the meaning of section 21 of IPC, injury caused by them amounts offence under Section 166 and accordingly they should be punished. Judges don’t have immunities from prosecution in criminal cases.
(2) Since section 197 Cr.P.C is hindrance and violative of equality provisions of art 14 it should be repelled by legislature.
(3) Court fees Act should be abolished as Art 14 imposes unqualified duty on the state to render justice not to do business with justice.
(4) Law of limitation Act 1963 should be abolished as it is also against the Restitutive Justice envisaged by art 14.
(5) Alternative mode of adversarial system - that is inquisitorial system should be implemented which is also envisaged by the Art 14 and is in consonance with the objective of the preamble to secure justice social, economic and political because. Despite of above reformative measures it is difficult to avoid the interference of extra constitutional people (lawyers) to play with justice. In this context we can also take the help of inquisitorial system of French and Italy.
CONCLUSION :
On ground of the above cratological analysis of the Indian Judicial process under various heads the writer comes to the conclusion that present adversary judicial system is against the spirit of the constitution and is an open violation of its normative character. Judicial process is run by those persons (advocates), who have no where mention in the constitution (except under Article 22(1) to the extent of consultation) and justice is not done but is purchased.
All three organs of the state have failed to fulfil their constitutional obligation to render justice according to the mandate of constitution as various laws which are unconstitutional are still operating in the Indian judicial process few examples of which are section 302 I.P.C, Court fees Act 1867, law of limitation , section 197 of Cr.P.C etc .
Judiciary as a state within the meaning of Article 12 is duty bound to do complete and Restitutive justice under Article 14 read with Article 142, but on several occasions it has acted as dispute settlement forum. It is also duty bound under section 57(1) of the Indian Evidence Act 1872 to take judicial notice of all existing laws having force, whether it is mentioned in the plaint or not, even then judges deliberately fails to take notice of this section which proves their incapacity and misconduct to deal with the cases rendering them liable for punishment under section 166 IPC and removal from the office. Despite of such frequent violation of the normative character of constitution by judiciary, still the legislature has failed to set an example of punishment by virtue of removal of any high/supreme court judge from his post.
Under constitutional power arrangement the work of judiciary is to say authoritatively what the law is i.e policy controlling. Provisions of Article 142 and 226 of constitution, section 482 CrPC and 151 of CPC though gives inherent power to the supreme court and high court to render complete justice , it means only to fill the gap within the parameter of the constitution and statute and it does not mean to supersede the constitution or statute as it did in Ramjawaya kapoor and S.C Advocates on Records case. The decision that consultation means concurrence amount to the amendment in the constitution without procedure and the statement that Indian government system is based on Westminster form of government and not on advanced presidential form of government amounts to change the nature of government from republic to oligarchic which is not permitted to the judiciary.
The main reasons for the injustice is due to non supervisions of the working of laws in states, even though the constitution has envisaged unique method of supervision under Article 256 read with Article 365 and 356. The president and Governors has failed to full-fill their oath taken under Article 60 and 159.
Thus we see that present Indian judicial process is not working according to the constitution and there is a need for revival of the ancient inquisitorial system which is also the mandate of Article 14. Inquisitorial method alone guarantees parity of arms and disposal of matters on pure legal basis. Individuals cannot overcome disability created due to unequal power balances in forms of one’s personal qualification, legal knowledge, financial capacity and so on. Inquisitorial mode of judicial process would help state to stand for the victim by eliminating advocacy all together along with improved administrative inquiry into the matter concerned.
RFERENCES
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11. Ihering, R. Von, “LAW AS MEANS TO AN END”.
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24. Joseph Raz, “PRACTICAL REASON NORMS”,(London: Hutchinson, 1975).
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[1] ‘Justice is the fair and proper administration of laws’ Black’s law dictionary VII edition by west group pub. P.g. 869
[2] Desirables includes principles of rule of law, natural justice, equity, equality , liberty etc .
[3] Examples of a good number of undesirables can be traced in the provisions of Indian Penal Code 1860.
[4] The notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of institutions that make law and of those who enforce it; it expresses fairness and the implicit recognition of the principle of equality.
[6] “Dharma” is that which upholds, nourishes or supports the stability of the society, maintains the social order and secures the general well-being and progress of mankind” M. Rama jois, LEGAL AND CONSTITUTIONAL HISTORY OF INDIA: Ancient Legal, Judicial and Constitutional System”, Universal Law Publishing Co. Pvt. Ltd p 25 .
[7] Justice is a system specific we need to search for the meaning of justice from the Constitutional text itself. Therefore, justice means delivery of substantive promise of law and this substantive promise of law may be fulfilled by virtue of Article 14 of the Constitution as this provision says that “ the State shall not deny the equal protection of laws within the territory of India.”
[8] Power is an ability to affect another by its exercise. However by considering the present arrangement of the power arrangement of the power structure, one question arises that is it separation of powers or separation of functions? If we look at the present situation we can see that the Government and Parliament are not separate. The Government is made of the same people who are also members of the Parliament. This system hinders the separation of powers. What is prevailing is a sort of separation of functions with shared powers.
[9] The Preamble of the Constitution of India states that: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. See the Preamble of Indian Constitution 1950.
[11] Dharma' is used to mean Justice (Nyaya), what is right in a given circumstance, moral values of life, pious obligations of individuals, righteous conduct in every sphere of activity, being helpful to other living beings, giving charity to individuals in need of it or to a public cause or alms to the needy, natural qualities or characteristics or properties of living beings and things, duty and law as also constitutional law. See supra no 6.
[12] There was neither kingdom nor the king, neither punishment nor the guilty to be punished. People were acting according to dharma and thereby protecting one another.
[13]’According to Kautilya in Artshastras ‘People suffering from anarchy, as illustrated by the proverbial tendency of the bigger fish to devour the small ones, first elected Manu, the Vaivasvata, to be their king, and allotted one-sixth of grains grown and one-tenth of merchandise as sovereign dues. Being fed by this payment, the kings took upon themselves the responsibility of assuring and maintaining the safety and security of their subjects (Yogakshemavahah) and of being answerable for the sins of their subjects when the principle of levying just punishment and taxes had been violated’ P-22: (P 24 S)
[14] All Dharmas are merged in Rajadharma, and it is therefore the Supreme Dharma ,Mahabharata shantiparva Ch.63, 24-25
[16] For e.g. - when the word ‘Dharma’ is used to indicate the giving of one’s wealth for a public purpose, it means charity, when the word ‘Dharma’ is used in the contract of civil rights(civil law),it means that it is enforceable by the state, in the case of criminal offence(in criminal law),it means breach of duty which is punishable by the state and when ‘dharma’ is used in the context of duties and powers of the king, it means constitutional law(Raj Dharma).
[17] "Being free from anger, (Akrodaha) sharing one's wealth with others, (Samvibhagaha) forgiveness, (Kshama) truthfulness, procreation of children from ones wife alone, purity (in mind, though and deed), (shoucham) not betraying the trust or confidence reposed, (Adrohaha) absence of enmity, maintaining the persons dependent on oneself, these are the nine rules of Dharma to be followed by persons belonging to all sections of society". The Shanti Parva (60- 7 -8) in Mahabharatha
[18] The law was the king of kings and nothing was superior to law. See Ramajois , supra no 6 at 24.
[19] Kula (gathering or family councils), Shreni (corporation), Gana (assembly), Adhikrita (court appointed by king). Nripa (king himself) . Among these each mention later is superior to the one mentioned earlier. Nar.p.6-
[20] Justice M. Ramajois, “Seeds of Modern Public Law in Ancient Indian Jurisprudence and Human Rights-Bharatiya Values,” (Lucknow, Published by Eastern Book Company, Edition, 200), p. 24.
[21] P P Rao, Access to Justice and delay in disposal of cases, Indian Bar Review, vol-30, 2003, p 208
[24] According to Julius stone there are six power bands through which we can determine the proper exercise of the power. (1)Coercion spectrum:- this band deals with the degree of coercion and sanctions behind a policy, decision (judicial or executive) and law. This count highlights the role of compulsions in the implementation or execution of any decision or law. (2)Ethical component spectrum: - this count deals with ethical and moral aspects of law and it emphasizes that every law, decision, or policy must satisfy minimum standards of ethics and morality of the society, which differ from society to society. A uniform standard of ethics cannot be laid down for it differs from society to society. (3)Interest Affected Spectrum:- This count draws attention to the problems faced by the subject (yielder),as a consequence of improper exercise of power, that is when their interests are affected by and subordinated to the interests of power wielders. Interest affected band protects the interest of general masses by prescribing instances of improper exercise of power. Example, doctrine of reasonable classification. (4)Influence spectrum:- this band differs from the coercion band as influence is a positive concept and there is no necessity of sanction, but the former is a negative concept and sanction and fear are the operative force behind the law or decision. Influence is self–reflexive and has its independent existence whereas coercion is a nonentity without fear and sanction. This counts deals with the factors which influence any decision or law and are influenced by it. (5) Head count spectrum:- this count signifies the number of persons affected by any decision or law. The underlying idea of this band is to protect the interests of maximum number of persons. (6)Time Count:- this band has two facets. One, it highlights the fact that continuance and antiquity makes any law or a practice stronger. The second facet of time count is delay i.e., delay acts as an impediment to access and realization of justice and that preventive, as well as and protective remedies should be provided without delay. See Julius Stone, Social Dimensions of Law and Justice, Delhi University Law Pub. Co., 1999. p. 598.
[25] See supra no 22 , Section 35, 35-A and 35-B .
[26] Rudal Sah v. State of Bihar AIR 1983 SC 1086
[27] Mohini Jain v. State of Karnataka (1992) 3 SCC 666
[28] AIR 1994 SC 268
[29] “(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, sub serving the constitutional purpose, so that the occasion of primary does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Court’s as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.
(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India and formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.
(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.
(6) Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office.
(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court judges/Chief Justices.
(8) Consent of the transferred Judge/Chief Justice is not required for either the first of any subsequent transfer from one High Court to another.
(9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justifiable on any ground.
(10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justifiable right in any one.
(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.
(12) The initial appointment of Judge can be made to a High Court other than that for which the proposal was initiated.
(13) Fixation of Judge-strength in the High Courts is justifiable, but only to the extent and in the manner indicated. “Ibid Para 80 of the judgment.
[31] (1976) 2 SCC 521
[32] If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation
Explanation: A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof. See original Article 352 in The Constitution of India 1949 online available at http://www.indiankanoon.org/doc/1018568/ However Later on the term ‘internal disturbance’ was replaced by ‘armed rebellion’ through the Constitution (Forty-fourth Amendment) Act, 1978.
[33] Dicey's 'three meanings' of the rule of law.....(1) in a decent society it is unthinkable that government, or any officer of government, possesses arbitrary power- over the person or the interests of the individual; (2) all members of society, private persons and governmental officials alike, must be equally responsible before the law; and (3) effective judicial-remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the State" (see Law in a Changing Society by Friedmann, 2nd Ed., page 501).
[36]“Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.” See section 166 of Indian Penal Code 1860.
[37] (2004)9SCC751
[38] Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549
[39] AK Gopalan v. State of Madras, AIR 1950 SC 27
[40] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226
[41] See supra no. 24.
