Saturday, December 19, 2015

Our Judiciary...a critique..!

Interpretation of the same proofs varies with judge to judge which influences the verdict. We have seen in the Salman case how the verdict of the lower court was refuted by the High Court denying the reliability of the same proofs those were sufficient enough for lower court to order punishment. It has been debated on public forums and in private whether the changed verdict was an outcome of the “proofs and their interpretation” or extra-judicial forces influenced the interpretation and hence the judgment. Prima facie this issue may look ordinary practice of our judicial system but in depth it raises a vital question mark on the authenticity of our judicial system.

Interpretation of the proofs in legal framework is essential to deliver equitable justice. Judicial interpretation of the laws is other issue in which many aspects are involved. We have seen in the case of “Right to privacy”, many judgments were issued considering this was fundamental right of the Indian citizens as outlined in the constitution. However few judgments went contrary to this ‘assumption’ contemplating that right to privacy is not at all fundamental right of the citizens as there is no such clear cut directive in the constitution. This is matter of judicial interpretation and the controversies help us to amend, alter or replace the laws or make corrections in the constitution. This is the way how the judicial machinery is improved and justice is delivered. However, interpretation of the evidences is solely dependent on the judge or bench of the judges within the framework of Indian Evidence Act, 1872. Still there are no certain criteria that can define unanimously the interpretation of the proofs.

Judge too is human beings. Being human there always is every possibility of error of judgment and this can easily be forgiven, though not expected from the justice. But when there are cases of sheer negligence, deliberate interpretations or misinterpretations we should be alarmed and caution the overall judicial system of its implications. With such cases faith on justice will not prevail. There are enough grounds to suspect the honesty of the judges which makes our judiciary vulnerable.

The fact is there are no enough courts in India. Millions of cases are pending for decades. It is said that justice delayed is justice denied and on this ground we the Indians are denied justice. Judges are overloaded with the work getting far less time to study every case in depth. The work environments too are far from good in the court rooms. Subordinate staff too is limited. Lot much have been written on these issues but we find not much improvement so far. The constraints posed by the overwork and work environment before the sitting judges really are pitiable.

But this cannot justify the injustice delivered by the judges for whatsoever reasons. The main problems, apart from above, those are noted, experienced and privately agreed by many lawyers with our judicial system are:

1)    Judiciary no longer is aloof from the corruptions, either financial or moral.
2)    Political influences play many a time major role in justice delivery system.
3)    Casteism too has plagued the judicial system to some extent.
4)    The court staff is also corrupt, many a time act as an agent between petitioners/criminals and judges. Some lawyers specialize in such unethical (but effective) practices.
5)    Many judges have been accused of unlawful beneficiaries of lands in related cases.
6)    There was demand from some NGO’s, like ‘Center for Investigation & Prosecution of Corrupt Judges of India’ that the judiciary must be brought under the perview of the Jan Lokpal.  However, there is no heed to this demand.

Former Chief Justice of India, Hon’ble V. N. Khare, in an interview with “Outlook” had conceded that the bribes are rampant with lower courts. His statement had came on the backdrop of the bail granted by special judge who had allegedly taken Rs. 5 crore bribe to grant bail to former Karnataka minister, in July, 2012. He also had agreed that the work over load, pendency of cases because of the shortage of manpower is a major factor that indulges to the corruption among judges.

The recent survey conducted by "Transparency International" speaks that the 77% Indians believe that the judiciary is corrupt. The amount paid as bribes, as estimated by TI is, Rs. 2630 crore in the year 2005 alone. The chapter titled as 'Indolence in India Judiciarystates that 61% of the bribe amount goes to the lawyers, 29% to the court officials and 5% to the middlemen. There is no way to verify this claim. Rather the figures could have been projected based on some real data gathered from inside sources. But it shows in what alarming situation our judiciary has fallen in!

Recently, in September 2015, in Vapi (Gujarat) two judges were arrested by the vigilance Cell of Gujarat High Court and were sent to judicial custody. The charge on them was they had accepted bribes to pass favorable orders. There are many cases though very few come in the light.

Thus the interpretation of the proofs changes, sometimes because of the judge's personal sentiments, his way of thinking, prejudices, ideology or caste or religion he belongs to or simply because he is sold to the bribe! The Outrage of the public sentiments too sometimes dictates how the justice should be delivered and often judges fall to those pressures. Political influences too play a role in certain types of the cases.

Our judiciary, same like our military, is a holy cow, hence seldom and that too with reservation, is criticized. Fear of the possible charges leveled under “Contempt of Court” and possibility of the punishment of imprisonment or penalty withholds citizens from openly talking/writing about it! Justice in India comes long after suffering to the innocents.

Other thing that I would like to beg your attention at that most of the HC and SC judges strongly desire for the suitable postings after retirement, on some commission or committees. It always better for such judges to be in good books of the powerful political parties. Such affiliations yield far better rewards, they are aware of it. With such a long-term planning to restore self-esteem and power, even after retirement, the decisions of such judges while on seat, concerning the people belonging to such parties would become obviously questionable, but there are seldom or no questioners. The corridors of the power are so brutal where the plight of the common man is always an end result.

Unfortunately, judiciary too is no exception!

Whenthe interpretation of the laws and the evidences are marred with some or other selfish intents of the judges is indeed assassination of the justice! There can be academic disputes over how to interpret law/constitutional provisions or the evidences and testimonies of the witnesses. The verdicts given with some genuine understanding of individual judge is pardonable.

But certainly not, when caste, religion, economic and future power gains influence the court orders! This is not good justice. Faith of common citizen in judiciary, as statistics shows, already has been declined. This is not at all a good sign of our democracy.

Judiciary must and at once should come out of this fallacy or people won’t approach courts for justice. The police will keep on taking disadvantage of the judiciary at the cost of freedom of the people which is guaranteed by our constitution. The guarantee will remain in the book and law of jungle will come to be applicable in the country.

I am afraid of this possibility!

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