Lucknow, UP, India, 226028

THE SHORTCOMINGS OF THE JUDICIAL SYSTEM IN INDIA

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If one delves deep into the history of democracies, one can find an uncanny reference to the British way of life. Democracy is, more specifically parliamentary democracy is a clone of the British model of government. Of all the countries that adopted this model, India is the primary disciple.  It not only adopted a western ideology but also altered it for better to suit its cultural, socio-economic, and religious standards. And as the saying goes India definitely is the largest democracy in the world. The sophistication behind a democratic setup lies in the pillars that support this ideology. A very Pavlovian definition of this setup is the Legislature, Executive and Judiciary, affirming the very existence of democracy. But it is the Judiciary of a country that sets the ball game for it. Judiciary as an institution enjoys or rather should always enjoy supreme status. Of all the other institutions in a democracy, it is the Judiciary that builds a reputation for any country, depending on how strong or slack it is.

 Judiciary stands firmly on an autonomous pedestal and Article 12 of the Indian constitution caters to this objective in some way. The aforementioned Article is essentially dicey when it comes to defining the judicial system. It specifically does not include the judiciary to fall under the realm of the ‘State’. A more pinpoint justification is that, when Hon’ble courts take part in Judicial actions, they cannot be subjugated by the ‘State’, but when performing non Judicial duties the Hon’ble court are assessed under the purview of the ‘State’. This is the very epicenter of the drawbacks of the Indian Judiciary.

Designated to enforce the law and adjudicate disputes, the Indian Judiciary is rendered one of the finest systems of courts of Justice, comprising of the Supreme Court, respective High courts, and District or subordinate courts. However, owing to a conglomeration of issues the Indian Judicial system has become lackadaisical in nature, paving way for falsification, malfeasance, and duplicity in its proceedings.

The first stumbling block is the police department, fraught with all sorts of fallacies that hamper smooth judicial proceedings. The onus of the backlog in the judicial system is first on the police and then on the courts. As far as the police department is concerned, the rub lies in the number of reported IPC crimes that have not been thoroughly investigated. Most of the time cases are not even registered in the police kiosks, so as to prove a diminished crime rate as they don’t want to create any hurdle in the path of their promotion. Complaints related to women-centric crimes are treated callously and the respective woman is often discouraged to lodge a complaint. There is always a sheer reluctance to lodge F.I.R, which is only considered when bribery is involved. Sometimes when even bribery fails to do the trick, section 156/3 of the C.r.P.c. comes to the rescue. The power under the aforementioned section can be utilized by the magistrate to administer the police to conduct investigations. According to the National Crime Records Bureau, this quandary is getting severe with each passing year. The year 2016 recorded the highest number of pending cases, amounting to 25 million.

The scrutinizing procedures are also laden with errors. Proper investigation is never carried out and shoddy paperwork is the icing on the cake. Primary evidence often tampers. The most lucrative specimen of such culpability is the Arushi Talwar Murder Case, which was treated like a shuttle cork, first in the hands of the police and then in the hands of two different CBI Teams. The case still remains unsolved. There is also a tendency to go ahead with the red herrings instead of true facts. Due to the latency of the police in accounting proper IPC sections in a respective case, the culprit often gets a narrow escape, because variation in IPC sections is caused by the police. Certain strong IPC sections are deliberately removed by the corrupt police officers by taking bribe that misleads the case, loosening its temerity. It is also the most revered Advocates who leave no stone unturned to save their clients.

Ironically, Advocates are both the backbone and termites of the Indian judiciary. Owing to the configuration of an egalitarian society, parliamentary democratic framework, and Rule of Law, equality before law prevails above anything else and as a result, even the hardcore criminals assert their Right to Advocacy and sometimes even free legal aid if needed. An Advocate in such a situation would do anything to defend his/her client. There is an immense absurdity in the Advocate-client nexus. Legal help is often considered the last resort to get to the bottom of the dispute. The clients often do not understand the legal boundaries leading to conflict with the Advocates. Witnesses also get hostile when a certain case runs for a longer time. An apt example is the Salman Khan hit and run case, where over time, witnesses ditched their conscience to testify against the culprit. Being human, a trust organization that takes part in philanthropic activities has been established so as to save Salman Khan from the gallows. All these meticulous strategies are the mental gems of the legal team that works for Salman Khan. These efforts have proven to be a straw man as far as Salman Khan hit and run is concerned.

 Hierarchical obligations too add to the slow pace of the judicial system. The interconnectedness of the intricate structure of the courts is the stumbling blocks in judicial proceedings because no matter how grave an issue is, one cannot directly approach the Apex court or the High court. It is mandatory that one follow the step by step procedure and approach the lower court first, even if the chance of redressal seems grim.

The flag bearers of justice —- The Judges, also affect the working of the judiciary in peculiar ways. According to an Economic Times report, given the Indian populace, there are only 20 judges per 10 lakh people. Thus, there is a terrible pendency ratio. Judges are also transferred from time to time which leads to laxity in dealing with essential cases. It is witnessed that the new judge appointed, often treats the transferred cases as an adopted child. Adjournment application is another blot on the system. Though put forward by Advocates, it depends on the judges’ discretion to accept or deny it. However, acceptance of the adjournment application leads to further pendency of the case.

‘Delays’ are collectively seen as an HRD issue. It is the Ministry of HRD that can address it. And therein lies the rub. Legislature gets mingled with the judiciary to burden it even more. Keeping this view in mind, there is a constant power struggle between the government and the Judges for determining who has the final word on the judiciary’s ideological trajectory. A classic example of this situation is witnessed when often some judges are always at loggerheads with the governmental heads, and some march to the tunes of powers so as to gain governmental patronage.

Overall litigation proceedings are delayed and as a result trial period starts late and gets stretched for time immemorial. Even fast track courts—- a new innovation in the Indian judicial system lack in providing speedy justice. It took almost 8 years to pass the final verdict of the Nirbhaya Case despite being under trial in a Fast Track court. Unnecessary violations of court orders give an impression of a lenient judiciary, which does not suit its watchdog image.

Red tape is another hidden evil crippling the judicial system. Like all government offices, the clerical department of the court is being devoured by this monster. Legal clerks gives into bribery when it comes to putting close-ranging dates for a particular case. Their insincerity blocks judicial time. The gaps grow longer and longer between hearings. It leads to the impoverishment of the litigants. The unfortunate ones don’t even get a chance of fair trial due to untimely demise.

 Keeping the above argument in mind, it is no sedition to be polemical about the conduct of the Indian judiciary, because even if one doesn’t take notice of its shortcomings, the shortcomings are still clearly etched out. The constitution definitely needs context-specific amendments that can enhance the system. The constant run-ins among the Legislature, Executive and Judiciary needs to be neutralized to achieve a greater good. More stringent vigilantism is required to arrest the numerous evils in the system, namely bribery, nepotism, red-tapism, callousness in dealing with cases, and so on. The criminal justice fora need special consideration to ensure the deliverance of proper justice. Despite some glitches here and there the Indians judiciary does qualify to be enlightened with more progressive avenues. Collective efforts are needed to once again see the Indian judiciary functioning to the glory of the Sun. No doubt judiciary in any parliamentary democracy holds the supreme power.

Author(s) Name: Mayank Srivastava (Shia P.G. College, University of Lucknow)

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