by K Rajasekharan
Advocate, Thirssur Bar
Advocate, Thirssur Bar
Strengthening subordinate judiciary – consisting of district and below level courts – is a much needed but grossly neglected reform. It has the potential to address the ever increasing problems of backlog and delay in justice dispensation and make the judiciary far more productive. A well functioning judiciary is a sine-qua-non for sustainable economic growth, investor confidence building and the overall human well being.
Subordinate courts are the courts where ordinary citizens literally interact with Indian judiciary with issues crucial to their life, liberty and property. The strength of Indian judiciary depends mostly on the strength of such lower courts which conduct the crucial chunks of judicial proceedings such as witness deposition, evidence taking, primary arguments and first level adjudication. If lower judiciary deals with cases seriously and comes up with proper adjudication based on valid law and legal principles, nobody would spend time and money on appeals, revisions and similar petitions unnecessarily as no higher court could alter or amend such foolproof verdicts. However the status of such courts is quite disappointing due to a plethora of reasons some of which the judiciary can itself address but some others it needs support from outside.
Judiciary as a whole and subordinate judiciary in particular is endued with archaic and cumbersome procedures which devour its foundation itself. Such procedures cripple judiciary and take away its efficiency. Even though the principles of fairness and transparency underlying such procedural laws are still valid, the procedures have made the justice dispensation at the grassroots delay ridden, dilatory and counter-productive.
Take for example; a plaint under section 26 of the Civil Procedure Code (CPC) cannot proceed unless a challenge of valuation is decided. It can be again challenged in revision under section 115 of CPC. The First Appeal under section 41 CPC, Second Appeal under section 115 CPC and revision by the High Court under section 115 CPC, are other provisions that can be used to delay adjudication. Judicial interference by invoking Article 226 or 227 is as well possible for the parties in the case. The Supreme Court can interfere as per any of the articles coming under Chapter IV of the Constitution. Special Leave Petition (SLP) under Article 136 of the Constitution is a grossly misused provision. Even a cheque case under Section 138 of the Negotiable Instruments Act can be adjudicated at four levels including SLP in the apex court. That means an ingenious advocate gets a plethora of ritualistic judicial procedures coming well within the legal framework to delay cases. We can no longer afford to stick on to the justice delaying procedural perfections when the mounting backlog of cases and the inordinate delay in adjudication crumble our judiciary. Statistics shows there are 60260 cases pending before the Supreme Court, 38.68 lakh cases in High Courts and 3 crore cases altogether in the entire judiciary altogether.
In fact, eighty percent of the backlog of cases is in the lower judiciary which runs short of 23 percent of judges in sanctioned posts. The subordinate judiciary is working under severe deficiency of 5,018 court rooms. The existing 15,540 court halls are not enough to cater to the sanctioned strength of 20,558 Judicial Officers as on 31 December, 2015 which shows that there was a deficiency of 5018 court rooms then. There is also a shortage of 41775 staff members in the lower judiciary. Since neither the Centre nor the States have any direct role in filling the vacancies of subordinate judges the prime responsibility for the lapses in addressing this much deliberated problem of shortage of subordinate judges rests with the judiciary. The inordinate delay in filling up vacancies of judicial officers should not be allowed to continue.
There is a widespread criticism that laws and legal principles have no much application in lower judiciary. The binding legal principles enunciated by the superior courts do not find a place in the proceedings of the lower courts. In the past, many of the prudent judgments of the lower court judges were upheld by the Privy Council. This shows that when lower judiciary adheres to merit and meticulousness in handling cases, the higher courts cannot upturn such verdicts. If the subordinate judiciary is well equipped with competent persons and its decisions go well in tune with jurisprudence many of the appellate and revision cases would not arise at all. Therefore an efficient and well-equipped subordinate judiciary, competent to deliver legally prudent judgments, can reduce the number of cases in appellate and revisionary jurisdictions, which in turn avoid the imminent collapse of the judiciary.
Appointment of judges of competence, caliber and integrity at the district and below level by establishing an All India Judicial Service (AIJS) is an easy way out in improving the quality of lower judiciary. Caste, creed or religion should get no decisive role in appointment. Recruitment of meritorious judges is more important than the recruitment of greater number of judges. An incumbent judge must have some prior bar experience but no bar experience is prescribed in selection of Munisif-Magistrates in Kerala. A young, fresh law graduate with no much experience in nuances of procedural conundrums in the court can pass the selection test and become a judicial officer who in turn decides crucial issues pertaining to citizens. Even the year long pre-service training at the time of induction is not sufficient to equip a fresh ill-experienced, law graduate into a capable judicial officer of substance. Therefore legal practice as an advocate should be a requirement in the selection of subordinate judges. The Munisif-Magistrate selection in Kerala in 2013 and the District Judge selection in 2017 met with allegations about nepotism, patronage and favouritism. Quite unfortunately, the administrative side of the high court invariably comes on side of the controversy. The judiciary that exists for enforcing rule of law everywhere else is not keen enough to enforce rule of law in selection of its officers.
The Advocates, as officers of the court, have a great role to play in judicial proceedings but a large section of them do not rise up to the role they are expected to play. Many lawyers with work concentration have more interest in talking fresh briefs than attending old ones. The practice of filing multiple appeals and revisions, numerous interim and interlocutory applications, adjourning cases indiscriminately for no serious reasons by lawyers, and such other practices, gradually weaken the judicial process, cause undue delay in case dispensation, and unduly enhance the cost to litigants. Indian judicial system has become more advocate centric than litigant centric nowadays. Seeking adjournments has become an art in advocacy. Judges, who are not firm on rules or assertive in attitude, grant adjournments on flimsiest of grounds. Repetitious, time consuming argument is another delaying mechanism. Some lawyers prefer long winded and prolix arguments with no substantive points. Similarly, many of the judges prefer writing judgments of unnecessarily length. The multiple interpretations they offer quite often offer unscrupulous lawyers to use the judgment to their advantage at the appellate levels.
In criminal cases, the strength of adjudication depends mostly on the efficacy of investigation and evidence collection. Deficiency in the police machinery is a common problem in almost every criminal case nowadays. The police need to be set free from extraneous shackles of pressures including that of the political masters. The investigation and prosecution wings should remain separate, but complementary in case handling. Independent police functioning is quite essential for the judiciary to handle adjudication effectively. Extra-legal methods are dominantly being pursued by both police and prosecution wings to achieve results in many cases, particularly in politically prominent ones.
The appointment of public prosecutors and other law officers need to be done based on merit rather than on the basis of patronage as being done now, so as to make the criminal proceedings fair, proper and unbiased.
We now live in a dense jungle of laws, many of them are outdated and not in tune with our times. Neglect in reforming laws also makes the judicial functioning difficult. The existence of a plethora of poorly crafted laws and their varied interpretations make it difficult for anyone to know the right legal perspective in an issue. It would be difficult for the judges or lawyers to keep abreast of the changes every enactment of law brings forth in the legal sphere.
The strength of judges is a decisive element in the performance of the court. But that is not the sole criterion in determining the quality of the institution. Judges play a primary role in court and case management. The quality of the judiciary revolves round the merit of the judges and the qualitative input/support the bench receives from all around.
The contrasting interpretations in similar issue by the higher judiciary quite often pose endless troubles to lower judiciary in finding the right perspective on an issue from diverse ones. This inconsistency makes adjudication a gamble in which the stratagem of lawyers and incompetence of the judges play a crucial part.
To vitalize judiciary, the stays and endless adjournments should be firmly curbed. Frivolous appeals must be minimized by enforcing rules and procedures strictly. Long winding arguments and pretty long argument-notes should be discouraged. There should be broadly fixed time limit for arguments. Adjournments on personal grounds, except for illness, should not be allowed. The ongoing practice of filing any number of interim and interlocutory applications in civil courts should come to an end. No appeal or interlocutory applications should be allowed except in issues that cannot be dealt with in the final orders. The filing of written arguments must be enforced.
In short, the problems that make lower judiciary vulnerable and weak are litigation explosion, increase in legislations, increasing election petitions/cheque cases/etc, inadequacy of judges, non-merit of judges, inadequacy of staff members, insufficiency of infrastructure in courts, wrong priorities in disposal of cases, hastily made imperfect legislations, absence of talented lawyers, ignorance of statutes/procedures among stakeholders, shoddy police work, and inept prosecution. They need immediate attention and curing. No doubt, strengthening lower judiciary is far more important than introducing Court of Appeals in between the High Court and the Supreme Court or establishing more Benches of the Supreme Court in different parts of the country.
N B :- This article was originally published by the Lawyers Club India site. Click here to view the article.