Justice Delays And Justice Denies : Historical problems of Indian Judicial System

Advocate Arjun *

High Court Complex at Chingmeirong Imphal on April 07 2012 :: Pix - Bullu Raj

After Indian Independence on 15th August 1947, there brought a new inevitable change in Indian Administration of Justice. The most important and significant change in India was the introduction of the Supreme Court as the only Judiciary Institution on the top of the Judicial Hierarchy i.e., Supreme Court as the Apex Court in India. Previously during the British India era, there was an institution called the Privy Council as an ultimate Court of Appeal in the Nation at the top of the Judicial Hierarchy. Though the power and institution of the Privy Council of then British India has been passed on to the Indian Supreme Court in substitution. There is no such a new Judicial System introduced in collaboration of the Indian Social realities. Still the Indian Judicial System has been adopted and continued to be the same as it was during the British India.

The modern Indian Constitution makes a few provisions so to secure pure and important administration of Justice in the Country. It ensures independence of the Supreme Court and the High Courts. The Constitution also seeks to safeguard the subordinate Judiciary at the District levels in the states. One method to lighten the burden of the Subordinate Courts may be to create a new mechanism to resolve dispute outside the traditional judicial system. Gradually the expedient is being resorted too. Some new instruments of Justice have been created, which are the Lok Adalats, Family Courts and Tribunals.

Whereas the Supreme Court is at top in Judicial Hierarchy, the High Courts of Indian States are at the second rank in it. The High Courts are the Highest Courts of Appeal and Revision in the State from both the Civil and Criminal matters. Each state is divided into Districts. Each District has a three tiers system of Courts in Judiciary Jurisdiction. At the lowest, there are the Subordinate Courts which nomenclature designations vary from state to state. In some States they are known as Munsiffs and in some other States called as the Civil Judge Junior Division, Senior Division and in Criminal, there is a First class Judicial Magistrate.

The District Civil Judge and District Session Judge are the highest Court in a District's Judicial hierarchy. This Court is designated as the Principal Court of Original Jurisdiction and has unlimited Original Jurisdiction. This Court could take cognizance of some original matters under (a) The Succession Acts, (b). The Guardian and Wards Act. (c) . The Land Acquisition Act. (d). The Hindu marriage Acts and Other Acts etc.

The main functions of a District Court are to hear appeals from Lower Courts in the District. Generally speaking, the District Court is subordinate to the High Court of the State. The role of District Civil and Session Judge is very reasonable. He heads the District Judiciary and as such supervising and controlling the judicial work in the District are the primary functions of the District Court/District Judge. The District Court is in a manner responsible for the efficient judicial administration in the District.

To ensure the proper functioning of the Subordinate Courts, the Indian Constitution makes a few provisions. The Constitution invests every High Court with powers of supervening over all the Courts and Tribunals within the State concerned. The High Court thus has sufficiently wide powers, both administrative and judicial over the subordinate Judiciary.

Lastly, but not the least the Supreme Court of India has laid down great emphasis on provisions of legal Aid by the State to the needy and poor persons facing judicial imprisonment under trial pendency. Honestly Justice couldn't be done to the poor accused unless there would have been providing a wide range of programs of FREE LEGAL AID AND SERVICES in the Nation. The Court has asserted that a trial proceeding which doesn't make available this legal aid and services to a needy and poor accused whose criminal trial is to be undergone, cannot be regarded possibly as "reasonable", " fair" and "just".

The order/ judgement/ sentence if pronounced by any Court without giving an opportunity to the Accused to be heard, then it is prejudice and not reasonable, not fair, not just. It is against the Rule of Laws and Natural Justice. Thus, to such needy and poor Accused, a Free Legal Aid and Service has been extended from the State with reference to the Constitutional provision under Article 21. (The Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by Law).

Hence, when an accused who isn't in a position to engage or unable to afford a lawyer on account of her /his poor socio-economic backgrounds and indigence or if one be a handicap , woman, child and other low castes and tribes, a Free Legal Aid and Service from the State would be provided. It is the responsibility of the State to provide a hired Counsel to the Accused in his/her behalf, to defend him/her, for a free and fair trial in the Interest of Justice so required on cost of the State. This is a Constitutional right of the needy Accused but it is not mandatory on the part of the State to provide the FREE LEGAL AID AND SERVISE to such poor and needy accused. The Bench will see the circumstances and backgrounds of the accused to bring a Justice not only to him but to the State also. However, till today, maximum number of civil or criminal cesses is resoled / disposed off in favour of the rich.

In the Civil cases it is not so easy to get Justice in short period of time because the Civil Procedure Code is so sophisticate and thus can be tackled by the Lawyers sarcastically for their personal interest to make the procedure of the trial longer and delay. Because of such prolong and very cost nature of the proceedings with fees to lawyers and also after easing / releasing their immediate tension between the opposite parties at the beginning, parties come closer day by day.

Later on, they are also advised to settle the case in dispute under a compromise between them in an amicable ways out outside the Court under Sec. 89 of the Code of Civil Procedure, in order to avoid wasting much time, money, energy unnecessarily. Naturally, the maximum litigants are fed up with the lengthy procedure of the Civil Jurisdiction. Thus, almost but not all, the Civil cases are disposed off after an arbitration settlement/ or the riches can stand long time in the Court and get the decree in his favour at last.

In Criminal cases too, it is not so good as well. An accused arrested on a suspected or alleged charges of an offence may have to wait for a long days and months before the actual trial starts. In certain cases, an innocent person is put in jail longer days for a Judcial Remand. The question of his guilt would be decided by the Court in one way or other only after the Charge Sheet framed by the Police I. O. has been submitted thereinafter.

Very often, we have learnt and experienced that the dishonest and concocted stories are put up in the charge sheet by Police I.O. and thus an innocent person faces an unwanted criminal charge and trial and later on, suffers a lot in life. In some other cases, an accused is arrested on certain alleged charges of cognizable offence and put in the Judicial Custody before actual trial. Then, the I.O. never files charge sheet and even Police Departments forgets its investigation too. May be the Conducting I.O. transferred / posted to some other place in between. But the Police station has its case investigation in-charge always.

On other cases, an accused is ignorant and innocent of the legal proceedings or legal systems and also, when there is no one in the family and relative who can take up the matter seriously in behalf of the accused, the accused continues to stay in jail for a prolongation without any Court's knowledge and information. In such situation, who is to be blamed? Will the in-charge I.O. be punished or is the State being liable to pay compensation/damage to the bad luck accused?

Anyway, such provision for liability is not legislated till today. State can do wrong/mistake/bad things as if in the past, Kings didnot do no mistake and wrong. The State can be a party in criminal case but in prosecution. In its prosecution, if findings are negative, the opposite contestant/accused will get released. But while arrest, investigation, judicial remand, attending Courts how much he was suffered mentally, physically and also monetary loss for running here and there to hire an Advocate for representation, who will reimburse? No answer till date.

Naturally the State would look into such matters very honestly and seriously. At present, there is no wrong and mistake in the eyes of law when someone or a public officer does not perform or does his duties/ responsibilities properly. Because there is no any concrete and expressed penal provisions for officers in mistake/negligence/wrong in duty. Maximum rooms for excuse are there rather than few penal rooms.

Of course, Departmental inquiry, suspension is becoming meaningless nowadays. Because a rich officer could buy his prestige, position easily after the suspension period is over, to an upgraded position with promotion or with new office. Hereby, it is humbly suggested that at least, filing a charge sheet by an Investigating Police Officer to the Court for initiating Trial on the matter, has to be fixed within a time bound. But, it is better to be fixed depending upon the nature and seriousness of the crimes and offences in different ways. If so, it can serve Justice at least better than today's. There is a proverb that JUSTICE DELAYS, JUSTICE DENIES.