The judiciary interprets laws enacted by the legislature and dispenses justice according to those laws. The judiciary must act independently without fear or favor. The judges must be honest and men of courage and integrity. However, it must be remembered that the Indian legal system is a legacy of our colonial rulers and with the passing of time many evils have crept in to it and it fails to satisfy the aspiration of the people. Hence there is urgent need of a complete overhaul of judicial machinery.
Honesty and integrity of the judges must be given top priority. The judges should not merely be honest but also seem to be so. Besides being honest, fearless and independent, they must also be learned and wise. They must have sound legal knowledge, and must also know how to apply that legal knowledge to the cases before them. They must be able to discover the facts, and deal with them with an open mind. They must be able to separate the grain of truth from the chaff of falsehood. They must be firm and above suspicion so that they may decide a case fearlessly and give their judgment without fear or favors. They must have a conscience so that they may tell themselves at the end of each day that they have done their best according to the light that is within them.
There is something in the very nature of the office of a judge and the function he performs that demands that he should be a person of high integrity, whatever may be the moral norms prevailing in other walks of life. The judiciary has neither the power of the purse not that of the sword. Its most valuable asset is the confidence it inspires and the respect it evokes for its capacity to redress the wrongs of those knocking at the door of the courts and to keep the scales even any dispute between the rich and the poor, the mighty and the weak, the state and the citizen, without fear or favor. This can only be ensured if the judiciary is manned by a person who cannot be lured by pecuniary or other temptations or by rewards or undue favors and benefits or deterred by fear and frowns of those in seats of power and authority. Once the image of the judiciary is tarnished because of the doing of some of its members and its credibility goes down, the loss is not merely that of the judiciary, the nation itself is deprived of the most stabilizing element in the even flow of its life.
Once an impression prevails that justice is a purchasable commodity and those who administer it can be tempted, the common man would be left with no forum to look for redress of his grievances. There is nothing which rankles in the human so much as a brooding sense of injustice. We must remember that in the final analysis the people are the judges and that every trial is a trial of our judicial system also. Its strength and weakness, its success and failure, its utility and creditability, the respect would depend ultimately upon the way it satisfies the hopes and aspirations of the people in quest of justice.
The problem of delay and the accumulation of huge arrears of cases both in the lower-courts, the High Courts, and the Supreme Court have assumed serious dimensions and invited a ;lot of criticism of the entire legal system. The causes of this delay are many. There are lacunas within the law itself of which clever lawyers take undue advantages and seek adjournments on personal grounds, for the benefit of their client. Justice delayed is justice denied. The flaws in the legal system give rise to unlimited frivolous suits, the purpose being not to seek redress but to cause harassment to the opponent. This is one of the most important causes of the accumulation of arrears.
Lok Adalats are being held constantly in some one chosen centre or the other, but they touch merely the tip of the iceberg. The expansion of judiciary has not kept pace with the increasing number of laws suits. It has been noticed that, at least in the lower courts, the Judges fail to assert themselves either out of lethargy or fear of tussle with the lawyers leading to strikes etc. the problem of delay must be faced boldly and quickly both by reforming the legal system and by eliminating extraneous factors responsible for such delay. The existing system must be improved to meet modern requirements.
The constitution of India provides for a very delicate process of consultation between the executive and the judiciary in the matter of appointment of judges through Supreme Court and the High Courts. A qualitative improvement in judicial appointments can only be achieved if all the constitutional functionaries inviolable in the consultative process strive to attract and find the best talent available in the country and seek for men of unimpeachable integrity of character and dedication. Extraneous consideration such as caste, community, religion, and politics must not prejudice the selection of judges.
But we must remember that the judicial system and legal machinery do not work in isolation from society. They are integral parts of the entire social and political system. Their working depends on the cooperation of other elements of the system. We must have a non-political, efficient, dedicated, honest and upright judiciary which must aware of its responsibilities and remain fearless. Only such persons should be appointed as judges, who enjoy the confidence and trust of the nation. They must be allowed to function in such a manner that the country is assumed of fair and equal justice along with the achievement of political, social and economic justice.
If judges with special acquaintance or competence or those who have specialized in certain branches of law are allotted cases under that particular branch of law, the time taken to decide these cases would be much shorter than the time taken by judges who are not familiar with the branch, especially if it is a specialized branch. Benches formed of competent judges should be allowed to function for a reasonable length of time and the judges constituting the Bench should know well in advance when the Bench is to break, so that there may be no part-heard cases left by the Bench after it is dismantled. This however requires discipline on the part of judges themselves. They must sit in time. They must not absent themselves from the Court simply because there are certain rights to have some leave of absence. This is a matter on which the internal discipline of judges is very essential. They must realize that they hold a high and dignified position in society.
The business of the courts should be so arranged as to avoid the situation of old cases getting older and of new cases receiving priority. Lack of proper listing and proper notice of new cases and the given priority to old cases is a factor which contributes to the accumulation of arrears and to mal-administration of justice. Matters involving common questions of law must be grouped and posted together for hearing before the same Bench not only to save the precious time of the court but to avoid conflicting decisions and ensure uniformity in approach leading to certainty and continuity in the progressive development of law.
The management of the court system should be modernized by taking advantage of new technology. While computers have invaded all fields of activity in the country and modern technological advances have radically altered the working in offices, the judiciary has remained outside the mainstream of this technological advancement. It is, therefore, necessary that every High Court must have a computerized system for keeping a catalogue of pending cases, a computerized library index of its decisions to avoid conflicting decision, an adequate number of world processors, photo-coping mechanics and electronic typewriters, a computerized micro-filming centre for maintenance of record and a telex system connecting the supreme court with other Courts. This is essential for inter-communication and interaction among different courts. Judges can help by strictly adhering to the hours of work, by exercising the caution and restraint in allowing adjournments with are the bane of our present-day court proceedings, and restricting oral arguments to the minimum by writing period after the conclusion of the hearing.
Members of the legal profession can and should also help. They must discipline themselves in order to be effective ministers of justice. The argument should be short, brief and helpful. These should be prudent preparation before presentation in the court either in pleadings or the advocacy. There is a tendency in our country to rush to the court at the slightest provocation. If lawyers could adopt a positive approach and strive to arrive at reasonable out of courts settlements, the time and expense of the litigants would be saved to a great extent and the inflow of cases into courts would be reduced, thereby facilitating expeditious disposal of pending cases.
To-day a larger number of litigation in superior courts in concerned with interim reliefs and interim orders. If we go by the number of interim orders subsisting for years together without the matter coming up for final hearing due to dilatory tactics, one gets the Impression that the majority in the profession have come to regards interim reliefs as final reliefs. The number of frivolous and vexatious petitions being filed is increasing by leaps and bounds. An overwhelming majority of special leave petitions field in the Supreme Court are dismissed and yet there are no sign of decrease in filling such petitions. Frequent adjournments are sought upsetting the schedule of work. The responsibility to company with the instructions of the client cannot extend to lawyers being an active party in the creation of delays. Lawyers frequently indulge in lengthy arguments before the court. There is need to reduce the quantum of oral arguments prepared with great caution and precision. Judicial time can be saved to a great extent and the settlement of cases expedited.