reform of judicial system
kewal krishan sethi
mussoorie
1971
almost fifty years back, government decided that i needed a refresher course. accordingly i reported at mussoorie leaving family at dilli. suddenly there was a lot of time and a good library to go to (besides class room and dining hall). the natural outcome was a write up. the burning topic those days was formalization of separation of judiciary. si i had to take it up.
here is the outcome of that activity. i have not touched it except for correcting some grammatical mistakes.
Reform of judicial system
kewal krishan sethi
mussoorie, 1971
judiciary has been claimed as one of the most important wings of any government. it has been called the protector of our fundamental rights, our person and our property. highest honour sis rightly accorded to the judicial pronouncements. but , nevertheless, it is admitted on all hands that our present judicial system needs undergoing various changes to serve the interests of justice even better. some of these aspects are considered in the present paper. it should be explicitly stated at the outset that no offence is meant for any person in the judiciary. it is the judicial system which We are considering and not the personality of judges for whom we have the highest esteem.
the judiciary in India is a single line system with this supreme court at the top and high courts in every state ( with exceptions in some states like punjab and haryana). below the high court we have the district courts. administrative work is done by the district judge but the case work is done by him and his colleague styled as additional district judges jointly. next in the line all the courts of magistrate First class and magistrates second class. at all levels the civil work is done by the same person as there is no specialisation at any stage. administrative law is also dealt with by them. the appellate and the original jurisdiction is all levels except the courts of magistrates first and second class. the courts subordinate to district judge do not have appellate jurisdiction.
in considering any reform of the judicial system, it will be in order to take a look at the systems obtaining in other countries.
our system is said to be based on the british pattern. it is therefore in order to take a first look at the britishers. the justice is britain is dealt with at the lower level by JP justices of peace. they are appointed by the lord chancellor usually on the recommendations of lord lieutenant or borough committee. the justice of peace doesn't have a permanent payment system. no knowledge of law is required. justices of peace sit at country quarter sessions where number is not less than two or more than nine. the decisions are by majority. in London there is a provision for salaried and legally qualified chairman. then we have the court of quarter sessions. There is a recorder ( a barrister of at least five years standing), appointed by the lord chancellor. he carries a small salary. his role is only advisory and decisions are by the JPs. in london there are stipendiary magistrates who are qualified and salaried. they exercise summary jurisdiction and also carry out preliminary enquiries in the case of indictable offences. other boroughs and counties can also opt for special magistrates if they are able and willing to pay.
appeals can lie to the court of criminal appeal. this appeal can only be against conviction, not acquittal. if a substantial point of law of exceptional public importance is involved ( to be certified by the auditor general) an appeal can be made to the house of lords which has got special committees for the purpose.
the chief characteristics of british system may be noted. the main points are as follows
1. there is no link between the civil service and the judiciary
2. there is an intimate linkage with private profession of barristers at law.
3. justice in england is not really a service administered by the state servants in the manner of orderly government department. only the leading members of the profession are clothed by state with authority to administer justice.
4. home secretary has control over the police and also makes appointments of metropolitan police magistrate.
5. there is no system of parquet. ( please see french system for explanation of this term). presentation of cases is not by full time government counsels. .
6. england does not have separate administrative courts.
7. there are no promotion prospects for judges in the usual course.
8. county judges are laymen. occasionally they are there because of their local standing. they try small cases and indict for graver offences.
9. the judiciary does not have advisory role.
the legal system is quite complicated in united kingdom and only a brief discussion has been attempted above. civil cases are also dealt with similar pattern.
we will next study the system of united states. there are two parallel systems of courts in united states - federal and state . except for, louisiana, the traditions and practice of english legal courts is follows. In louisiana nepoleanic code is followed. the supreme court can declare a law unconstitutional but it does not give any opinions or advice. the supreme court is not bound by the precedents.
federal system provides for two levels subordinate to the supreme court and it also provides for certain special tribunals. there are some ninety federal district courts of original jurisdiction. the next (intermediate) level is is of eleven circuit courts of appeals. the circuit court of columbia hears appeals against decisions of regulatory commissions and departmental tribunals. there are also federal courts to hear claims against the federal government.; a court of custom, a court of customs and patents; a tax court; a civilian court of military appeals to hear appeals from military court martial. all federal judges are appointed by the president with the approval of the senate. their appointments are for life or during good behaviour. a liberal pension scheme stimulates voluntary retirement.
each state has its own system. there is no uniformity. but the chief points are the following. at the base are the JP justices of peace courts. they are largely confined to rural areas. JPs are elected by voters for a two or four year term. they need not be legally trained. in fact they seldom are. for example in a survey in pensylvannia, it was found that of the total of 1171 JPs, there were 189 farmers, 152 realtors, 92 merchants, 62 clerks, 42 teachers, 27 miners, 25 accountants, 24 carpenters, 21 railway workers, 22 salesmen; 14 painters, 10 barbers and 10 housekeepers. only 16 were attorneys [bruce smith, rural crime control i.p.a. new york pp 247-48] the payment to JPs is usually out of fees collected. they have civil as well as criminal jurisdiction.
in the cities, the magistrates (or police courts) have fixed salaries and can try minor offences. in the larger cities, there municipal courts instead of JPs.
at the intermediate level, we have district, county, superior, general sessions, oyer and terminers, and circuit courts. they are usually headed over by single judges who are members of the bar. they receive fixed salaries. trials are generally by jury system. they have both appellate and original jurisdiction. the judges are usually elected by the voters though in some states, the governor makes the appointments. it is almost universal to pay the judges but in a number of minor or local courts, the load of cases is such that a part time judge can handle them. most of the states elect all their judges at all levels. fixed terms are usual. it is not necessary that judges should be eminently qualified. judges are comparatively well paid though they may not have as large income as some of the private attorneys. some of the state permit recall of the judges. state supreme courts have the authority, usually, to remove the judges from office. some states make provisions for removal of judges by legislative or executive action.
in the french system, the provision of justice is a government service like the provision of education or the provision of main roads. for administering justice there are civil servants. at the head is the minister of justice (who is a politician). the permanent civil servants are divided into three categories.
magistrates as judges
sitting as tribunal of first instance or in the supreme court (court of cessation)
magistrates as parquets
whose duty is to represent the state both in the prosecution of crimes and in any civil proceeding where state interest is involved
magistrates
as staff on the ministry of justice
the three categories are not mutually exclusive. the members of the service may belong to different categories at different period of their service as they rise in hierarchy. for example, a person entering at twenty five may start as parquet of a small tribunal; may be promoted as a judge; be parquet of a higher court and so on until he can (if and when possible) reach court of cessation. the system has nothing to do with the profession of law which is separate. one has to make a choice between a private practice and the government service.
side by side with the ordinary courts of justice, there is a system of administrative courts (conseile dé perfecture – local administrative courts) with ascending hierarchy. we have the central administrative court (conseil détat) which hears appeals from the local administrative courts and itself hears the more important administrative cases in the first instance, their duties also include advising the various ministries on the form and content of schemes and regulations. the staff for these courts comes from the ‘magistrates’.
and finally we take up the soviet system. at the base in the soviet union are the people’s courts which are courts of first instance in most of the cases (94 % in 1960), it is composed of a professional judge and two assessors. next in hierarchy are the district courts. they are courts of territorial jurisdiction which hear appeals from the decisions of the people’s courts and also act as court of first instance in some cases. the next level is that of supreme court of the republic. in some smaller republics, the district courts are not there and appeals come directly to the supreme court. the appeals are heard by a bench of three professional judges.
the assessors in the people’s courts are directly elected for a period of two years. often assessors with special qualifications are chosen to sit in individual cases for example an engineer in a case involving industrial injuries; a school teacher in the case of children). assessors need not have any legal training. once elected, they are given a hand book and have to attend at least two lectures a month in special courts for assessors. the lectures are given by the judges, the practicing lawyers or the university law teachers. xxxxx
people’s courts judges are elected directly by secret ballot for a period of five years. he must be elected by polling at least fifty percent of voters (total voters not the votes polled). there are periodical ‘report back’ to their electors in which judges have to give account of their stewardship. moreover they may be recalled. the judges are not necessarily party cadres. less than fifty percent are members of the communist party. 40 percent are women. the judges, before election, need not be legally qualified. once elected, they have to take correspondence courses in law if they are not legally qualified.
under the soviet system, acquittals also have to be accompanied by reasons. the appeals can be filed against conviction or acquittal on wrong reasons. the appeals may be on law points or on facts or on both. the appeals against acquittals can be filed by the affected party or the procurators (see below for explanation of this term). procurators can appeal against acquittal or lenient sentence. he may appeal against illegality in the verdict or in the sentence. for example if the court imposed greater fine then it has powers to do, the procurator may appeal. (even if the accused does not for reasons of ignorance or otherwise).
the appellate court may annul the whole proceedings and order a new investigation or a new trial. it cannot impose a more severe penalty. in both the criminal and civil cases, there is only one appeal as of right for the parties. review is provided by the supreme court of the republic, and by district courts in certain cases. only procurators, presidents and deputy presidents can seek review. the accused or the aggrieved person can petition procurator or the president of district or supreme court for review.
any study of soviet system should include a study of role of procuracy. the set up is described below. the procuracy is headed by a procurator general. the organization is on all unions (federal) basis. completely free from the local control, procurator general is appointed by the supreme soviet for seven years. all other procurators are appointed on his advise or are subject to his confirmation.
the function of procuracy is to ensure the observance of law by all persons and institutions, public or private. he has to draw the attention of some higher authority to what appears to be a breach of law. it is procurator’s duty to protest but never to decide. he supervises the preliminary investigation and prosecution. he has the duty to look after the family of the offender and also the victim. for example, he has to ascertain if the victim wants to bring up a civil suit for damages and to help him do this. he sees to it that the offender’s goods are not liquidated but are saved to meet the interests of the victim. the procurator draws or endorses the indictment when it is transferred to the court. he also acts as prosecution counsel in serious criminal cases. he is also empowered to drop the proceedings at any stage.
apart from the courts, the soviet police are entitled to impose fines on the spot for minor administrative infringement for example parking offences, walking on the grass in public gardens where this is not allowed. maximum fine that can be imposed is ten roubles ( it is twenty roubles in moscow), there can be no detention for more than two hours. fine can also be imposed for excessive drinking. sobering up charges have to be paid when a drunken man is taken to the police station for sobering up.
having taken a look at the system in the various countries, let us now look at our own system. the magistrates are recruited and appointed as magistrate second class. they get promoted to the posts of magistrate first class, thence to additional district magistrates, district judge/ additional district judge. some can go up to high court or the supreme court. they deal, at all levels, with civil, criminal and administrative law. the prosecution branch is under the police department where the law graduates enter as assistant public prosecutors and go up to the level of public prosecutors. they represent the state in criminal cases before the magistrates. for presenting the case before the high court and in all civil cases. appointment of pleaders and additional government leaders are made from among the practicing lawyers who represent the state on payment of fees. they can also take up cases of the private persons in which the state interest is not involved. some direct recruitment form the bar to high courts and supreme court has also been done
the striking feature of indian system is complete independence of judiciary from executive. at no level, the two mix nor is there any interchange. at no point of his career, the magistrate is with the executive or has any experience of the field. this separation is post independence development. article 50 of the indian constitution states that the judiciary will be separated from the executive. it is one of the directive principles. in some states (indian) like gwalior or indore, judiciary was always separate from executive but were both under the king. but now we have gone a step further and at no level any control is exercised except with the approval of the high court. let us see how this separation has worked in practice. before doing so, it will be well to know the roots of the provision of separation.
the draft clauses of the constitution did not contain any such provision. it contained reference to trial by jury; abolishing of capital punishment; ban on general search warrants and so on. the draft articles drafted by the subcommittee on fundamental rights (headed by shri k. m. munshi), was the draft of shri harnam singh; draft of shri b. r. ambedekar did not contain such proposals. the advisory committee on fundamental rights did not discuss this provision. shri d. p. khaitan’s suggestion for inclusion of this provision in part 7a did not find favour with the drafting committee which submitted its report on 21.2.1948. subsequently the drafting committee included draft article 39a regading the provision of three years time limit was dropped and the article as accepted.
it is characteristic of the indian constitution that such an important procedural article was put in the directive principles. be it as it may, the provision was followed by various states so that by now most of the states have separated judiciary, some by law and some by executive orders. we have now sufficient experience of the system and can study the issue.
it will be seen at once that the indian system is unique in this respect. nowhere else the separation is accorded to the extent to which it has been done in india. in so far as the recruitment and service conditions are concerned, we are very near the french system but so far as procedure of administration of justice is concerned, we have taken the idea of the british system (so we say). but in applying it we have gone further than that. in fact we appear to have chosen the worst features of all the systems. no attempt has been made to see if the indian situation is fit for the experiment which is being tried in india. but even worse, we have not studied the situation of other preceptors – the british.
england does not possess a professional judicature. its judges are also those who have proved themselves at the bar; its magistrates are in the main laymen selected principally because of their local standing and knowledge of public affairs. though in london and other towns, there are stipendiary magistrates, elsewhere they are not necessarily qualified men. the bench thus has the respect of the advocates who appear before it. and of the general public. secondly the members of the bench do not acquire the dogmatic habit of mind that a long enjoyment of judicial authority tends to introduce. in the counties and boroughs, there are individuals who are justices of peace by virtue of the office they hold, such as the chairmanship of the county council and the mayoralty. thus there is no separation of the judiciary such as we have enjoined in india.
the reason for not separating the judiciary from executive is clear. the administration of the law has to be kept in proper relationship with public opinion and the public conscience. it is further essential that each magisterial bench should include the representatives of the main stream of opinion that informs each locality. the essential point is to have a bench which the public trusts.
none of these applies to india. the magistrates are recruited when they are, generally, raw legal graduates and immediately invested with the judicial authority. they continue to exercise that authority all through their career. the danger of becoming dogmatic are all too clear. the law is applied everywhere with the same brush. the customs of the locality are neither known nor cared for. the magistrates have absolutely no idea of the field conditions or how or why the executive acts in the way they do. they have only learnt the theory and the provisions of law, not why these laws were , in the first place, necessary. they never had the opportunity to know the repercussions of their judicial pronouncements and all too apt to forget the difficulties in the way of execution of his orders. the judicial protection which he enjoys tends to make him haughty, careless with his actions. leniency at the wrong place, strictness in ordinary situations are quite common. the exercise of the powers is arbitrary and absolute. it is said that power corrupts. we have given power to the magistrate. there is no responsibility. no wonder, the general crime position is worsening. the police may be partially responsible for this but the judicial system cannot be absolved of its part.
it will be seen that in all the major countries of the world, the justice at the lower levels is administered by those who came from the life, or have active associations with it. the election of the unqualified laymen for administering justice is common amongst soviet union, united kingdom, and united states. there is no reason why we cannot do this. the justice in india was usually done by the panchayats. why can we not do it now. it is argued that the laymen cannot administer justice, they do not have the necessary make up. in this regard, it is to be observed that there are three considerations in the administration of justice. the major part of the magistrate’s function is to decide which story ought to be believed, and in prosecutions, what the penalty ought to be. secondly, in many cases, local knowledge is as necessary as the legal knowledge, finally there are always lawyers at hand to guide the courts on legal problems. the characteristics of the british judiciary are observed to be
1. a professional judiciary acquainted with the local conditions.
2. a centrally organized administration that gives substantial uniformity without sacrificing judicial independence or ignoring local conditions.
so far as elected judges are concerned, it may be argued, with some justification, that we are not yet ready to face the elected judges. they do represent the social maladies but that, itself, is not a deterrent . the more important aspect is the dearth of the elected judges who may be men of personal resources. to make them salaried may well be negation of the election principle. to have the part time judges as elsewhere may not be possible in the existing circumstances. as such we have to look for other alternatives. but even so, the basic facts remain the same.
it is time to stress the duty of magistrates towards society and the law that the society has created for its regulated life. in united kingdom, a justice has to take the oath of allegiance and the judicial oath. the judicial oath reads -
“ i will do right to all manner of people after the laws and usages of the realm without fear or favour, affection and ill will”.
the words are reminder that magistrates, like any other, entrusted with the judicial powers are the ministers and servants of the law and not its critics. yet it is not uncommon, in india, to find judges making a virtue of flouting some acts of which he does not approve or following some procedures of his own devising, comfortable in the knowledge that his hardhoods are not likely to be challenged in appeal. the difference between the civil and the criminal cases is that whereas the former is a means for protection or reparation for the individual in particular, the latter is devised to protect the community generally. the emphasis in the criminal justice is on community. when a thief is sentenced to three months imprisonment, the victim of the theft does not personally gain from it. it is the welfare of the society which is the consideration for awarding the sentence of imprisonment. any system which neglects the welfare of the society needs a drastic revision.
criminal law has three aspects – treason, felonies, and misdemeanours. the first is the crime against the established state as such. the second is crimes against the authority of the state and the third are the crimes against the society (for example cheating, breach of trust). the number of crimes in the third type are very large and have been recently expanded to include such offences as adulteration, profiteering and so on.
one of the direct result of the separation of judiciary is the growing alienation between the executive and the judiciary. it is said that if you want to hang a dog, give it a bad name. there has been so much criticism against the executive that it is almost universally believed that everything that executive does is wrong. no matter what is said, the members of judiciary are also members of the society. whereas the opinion of other sections of the society may not be harmful, when it is associated with judicial power which is not tempered with responsibility, the situation is ripe for danger. the result may be leniency which may have disastrous effects on the society. this is a common occurrence not only in india but even in the united kingdom. we have an interesting anecdote.
“the moralists’ prevailing impressions suggest that hard core criminals are bound to come to a bad end, if nobody takes them gently by the hand”. “who says crime never pays? i have made a profit. the magistrate must be a mug” was the reply on 17th july 1963, when two young thieves were fined. “i could hardly stop myself laughing in the dock,’ one said. ( a duty to the public by c.v. hearn -- fredrick mulleur limited)
or again “today many a thug has no need to worry about his old age. unrepentant sluts, homosexuals, vicious criminals will get a golden handshake in some press interview. the wages of sin are a nice fat cheque or a role in a movie”. but who even suggests there are serious grounds for complaint is suspected immediately of being subversive, of undermining public confidence. (ibid page 120).
let us take another example. “there was a car accident. one girl had a crushed pelvic and became, because of the serious extent of her injuries, she may never have a child. another had several fractures of the right leg, injuries to head, ribs and eye. she had also lost her memory. her doctors say she will probably have to walk with a stick for the rest of her life. both legs suffered concussions. both are still in hospital, months afterwards. under the act, the drunken driver could have been fined for $ 100 and jailed for four months. he was fined $ 30 and disqualified. was this punishment enough for completely ruining the lives of two young girls. (ibid page 127).
did the magistrate do his duty towards the society? it is often said by the judges, lawyers and the policemen that the law is an impersonal thing, an independent entity. nothing is further from the truth. the law is strictly a set of rules made by men (or the society). there is nothing impersonal in it. if it does not serve the purpose and when such defect is detected, the law is changed. last year’s favour may be this year’s felony. but all law is for the welfare of the society. it must be administered as such.
forgetting the duty towards society has another aspect to it. sometimes the ceremony, tradition and the moral rectitude are forgotten. secure in his judicial powers, the magistrates are quite apt to forget the judicial balancing of the crime and punishment. such instances are not rare. an attack with a four inch blunt knife, not causing injury may be dismissed as misconduct; or if a serious view is taken, an imprisonment of short duration will follow. but if the same act is in relation to a member of the supreme court, it becomes attempt to murder and the punishment can be seven years rigorous imprisonment. such is justice. (it actually happened in the case of mr justice grover).
the learned magistrates seem to have forgotten that it is the required duty of the police to get at the truth. the first natural reaction of the wrongdoer to find some excuse, stretch the truth, evade the truth, deal in half truths, or lie. all strata of society are affected by pimps, pounces, prostitutes and so up the scale to the ministers of state. a significant factor in the increase of crime is that a number of offences go undetected, or are never cleared up, and the number of obviously guilty who are acquitted increases. certainly we should safeguard persons who are suspected of crime, but it is equally certain that the public should be guarded by administering correct justice and handing out adequate sentences.
not only the magistrates have a duty towards the accused but also to the victims and their relatives. this is usually forgotten. too often procedural technical mistakes are cited as reasons for acquittal. the judges and the magistrates , oblivious of public criticism, refuse to believe that some of their convictions and dismissals hold the law, themselves and other enforcement agencies up to ridicule. it is not very rare to find the witnesses go back on their statements in the court for fear of reprisals. the fault is put across by the judiciary on the police who are suspected to have taken false statements, but is it always truth? does not the misplaced generosity of the court or the purely procedural technality by the culprit make it happen?
our laws are so deliberately elastic that it is possible to get around most of them. the executive officers do try to bend the rules a little in trying to separate the wolves of the society from the unfortunate lambs. it is admitted on all hands that there is a lot of perjury in our courts. the oath in the court has hardly any significance attached to it. and if we cease to believe the executive altogether, the days ahead will be dark indeed. in their frenzy to protect the criminal, the magistrates appear to have forgotten that executive also has a duty towards ordinary, honest, upright and decent citizen.
and this brings us around to the oft repeated truism “a man is innocent till he is proved guilty” or again “it is better to let a hundred guilty men go free rather than convict one innocent person”. let us look at the procedure. a crime is reported. the police, up to this point, have no relation with the victim or the accused. they look into the crime. if they are satisfied about circumstances against the accused they file a challan. the magistrate then looks into charges, hears the police and the accused and allows cross examination of witnesses so as to elicit the truth. he has to satisfy himself about the truth of prosecution story.
should he start with the firm belief that prosecution story is all wrong? this is the meaning of term ‘a man is innocent till he is proved guilty’. it is generally well known that if you are on high ground, the enemy has a difficult job to dislodge you. here the story of innocence is already established. it is to be dislodged. does it give equal chances to the adversaries? does it enable society to defend itself? we do not think so.
how can a person be presumed to be innocent when an important official, who has supervised a thorough preliminary investigation into the whole case considers that he is guilty of the offence he is charged with. the prosecutor must prove the offence in the open court, but the court should not start off with any ‘presumption of the innocence’ such as prevails in india. it is only after a thorough preliminary consideration of the evidence by a trained and qualified impartial officials that can be considered the safeguard of the innocent person.
there is another aspect. ultimately the police and the judiciary are both government servants. they come from the same society. why should it be presumed that one is more responsible and the other irresponsible? if we can believe that, then there is something radically wrong with our society.
then again if the principle of presumption of innocence is extended to its logical conclusion, the appellate court should also start with this presumption that the deision of lower court is wrong. this is not being done. why? is it a case of departmental loyalties or are there different yardsticks for different organizations. these duplicate standards will come up again for discussion below.
all the above conflicts between executive and judiciary, between society and judiciary arise because of ‘independence’. independence, it may be asked, is sought from what. certainly not from responsibility. the knowledge of the field, the implications of laws; the consequences of verdict are essential in carrying out one’s duty. this can be ensured by asking the magistrates to have practical experience of investigation of crimes, of mob control, of multivariate situations that arise everyday in society. let the magistrate face the angry wrath of the aggrieved without shielding himself in his ivory tower of isolation and independence. a short period of this treatment and he shall return a wiser and more sober man to his duties. it is argued that the magistrate will try to get good remarks from his executive boss by carrying out his biddings. but is this correct? does the boss have any less stake in his duties towards society than he has? and there is always the appeal. by all means make the judiciary at the higher level above the ‘mean’ executive (as has been the case everywhere in united kingdom. soviet union in united states). this will give sufficient safeguard without giving impractical slant to the judicial system. .
so far as the danger of non separation is concerned, we have only this to say. the best of the rules can be perverted. in the last analysis, the quality of legal procedure depends very largely upon the people working it. abuses occur everywhere. the demand that only the courts can deliver justice is based on the assumption that judges are necessarily more fair-minded than the investigators. both of them are usually law graduates and, in any case, have legal training. but the ability is not synonymous with fair-mindedness.
one more term remains to be explained. this is ‘beyond reasonable doubt’. too often, this term is taken to be something other than what it means. what ‘reasonable doubt’ means is not some whimsical or fanciful doubt which a person might conjure up for the purpose of creating a difficulty, but such a doubt as would govern the course of action of a person in some private affair of moment of his own. often ‘reasonable doubt’ is taken mean that ‘you do not like to do it’ or’ it is disagreeable to you’. it does not mean that by some possible hypothesis, you can arrive at that conclusion. there is hardly anything that a really subtle and ingenious mind cannot convince itself; there is hardly any truth that a subtle and ingenious person cannot bring himself to doubt. unfortunately all this has been happening much too often to the discomfort of the society.
one other area of disturbing aspects of the judicial system is the delay in the disposal of cases. day after day the number of the cases pending in the courts is going up. they are taking longer and longer for disposal. even if it is taken for granted that the queue is lengthening because of the lack or the shortage of staff, it does not explain the increase in the time of disposal. in considering the figure for disposal, it is to be kept in mind that even cases of trivial nature like violation of motor vehicles act are taken, statistically, as seriously as the case of, say, theft or cheating. the disposal time of the former is one day (when on the spot time of serious cases is done by the mobile courts) so that actual average disposal is much more than is indicated by the average figure.
before we discuss the reasons, it is in order to take an example. we have chosen that of bihar. we have concerned myself with the cases pending at the lower levels since it is there that the common man normally comes across the court procedures. the following table gives the position of criminal cases in bihar over the period 1965 to 1967.
average duration (days)**
year
pending
instituted
disposed
balance
ipc cases
others
1965
116988
174217
164145
123196
242.9
25.7
1966
123196
166718
158037
131890
260.2
25.5
1967
131890
179251
144362
161743
268.7
30.2
(source : report on criminal administration, bihar)
** refers to cases finally disposed off
the duration of disposal of cases is seen to be increasing every year even though there is no increase in the cases instituted. the number of magistrates has also remained almost unchanged. in fact, average disposal per magistrate in 1965 was 303 and in the year 1967 was 274. the situation becomes disturbing when we look at the number of persons involved in the cases. we have the following figures for the cases finally disposed off.
year
total accused
convicted
compounded
fine imposed
1965
345571
117050
60418
88248
1966
316392
103298
47626
78762
1967
295110
93250
35984
70880
(source : report on criminal administration, bihar)
these figures do not include those persons who are called as witnesses. it will be seen that quite a substantial number of persons got out of the court by compounding their offences. these figures should also be kept in mind while computing the actual disposal time of the cases by the magistrates.
year
pending
instituted
disposed
balance
uncontested
duration(days)
1964
54605
85455
40506
99554
12929
916.1
1965
59039*
43772
42352
60459
13134
977.4
1966
58225**
43520
36964
54791***
30831
1028.3
* in 1964, 51417 cases were transferred to collectors or gram kutcheries; 8921 cases received on transfer, 1982 received otherwise. hence the difference between closing balance of 1964 and opening balance of 1965
** in 1965, 4655 cases were transferred to collectors or gram kutcheries; 1936 received on transfer or otherwise
*** in 1966, 86 suits were transferred to collectors or gram kutcheries; 1763 received on transfer or otherwise.
it will again be seen that the average duration of the cases disposed off is growing at an alarming rate. the number of uncontested cases – that is those who want to get out and settle out of court – are on the increase. in 1966, the total number of contested deposed off is 6133.
at the end of 1966, 51680 cases were pending with the munsifs (the lowest court of first instance. a year wise breakup of the pending cases follows --
yeartotalmunsifpre 195734919195739151958773819591277419603341681961836545196223011743196355954400196498907755196515443119381966314472498566648
the congestion of cases is not unique to india. other countries are also facing the problem. on congestion of cases in the courts of united states, prof. karlen remarks, “so the vicious circle revolves and revolves until the united states is now perilously close to a breakdown of law enforcement and a collapse of civil justice. (pp 82-85 – prof. karlen – judicial administration –the american experience)
if this is the situation in united states with its advance economy, how much more true for india. the reason for this congestion is twofold. one is that delegation or powers is not sufficient. the civil courts deal with far too many cases which should be dealt with by other agencies. the judicial system in india makes civil courts pervasive over all the aspects of law. they administer not only what is strictly civil justice but also administrative justice. the result of this is that the congestion increases. for example under the madhya pradesh land revenue code, if a person is alleged to have encroached upon government land, he can be tried by revenue courts and evicted. in the appeal after appeal that is provided in the code, it takes years. when his case is rejected by the highest revenue court, he is entitled to go to the lowest civil court. this not only duplicates the process but delays the justice and gives civil court jurisdiction which is not strictly ‘civil suit’.
in france, the administrative laws, procedure and use (or misuse) are controlled by the administrative courts. there is growing realisation all over the world that this must be followed, otherwise the congestion is likely to increase. the reason for this is that the special laws require special knowledge. it is not possible for every man, however brilliant he may be, to know all the laws. in case a suit is brought before him, the judge has to familiarize himself with the particular law in a brief period. this results in his taking time for the disposal of the case and the understanding of the particular law may not always be perfect.
the variety of laws that the court have to administer in india is bewildering. in a random example, we studied the cases reported in air 1970 november. the high courts and the supreme courts dealt with 185 acts, rules made under the acts and other statues. this included such subjects as
1. administration of evacuee property act 1950
2. andhra pradesh buildings (lease, rent, and eviction) control act 1960
3. bengal chambers of commerce arbitration rules
4. bombay chamber of commerce – bye laws
5. indian administrative services (regularity of seniority) rules 1954
6. indian police service (cadre) rules
7. kerala state and subordinate services rules 1958
8. railway establishment code
9. m. p. rules for admission to medical colleges
this is only a brief selection. it will be seen that these came strictly under administrative laws. an illustration will help in understanding of this aspect.
in case reported in air 1950 sc 1950, the subject matter was whether the word ‘hank’ is used in the dictionary sense or in the technical sense. the rules exempted from excise duty cotton yarn of 17 to 35 count which was cleared from the factory in hanks. hank, in commercial parleys, means coils of yarn of 840 yards. in the dictionary sense, it is just a coil of yarn. here the word ‘hank’ is important and it is our view that those who framed the law and those who administer the law are more appropriate authorities to interpret the term. a general jurist should not be asked to do it.
it is a general practice of the higher courts in united kingdom and united states where there are no administrative courts not to judge the facts of the case. they limit themselves to the interpretation of the law and the maladies of the administrator. no such conventions have as yet developed in india. thus while the law may be found to be correct, case may be remanded on facts.
however before we discuss this question in detail, it will be in order to look at the circumstances which have necessitated judicial adjudication by the administrators.
there are two agencies in the government for administering laws i.e. the courts and the administration. both are designed to achieve public security. administration achieves public security chiefly by preventive measures. it selects a hierarchy of officers to each of whom definite work is assigned. a set of rules is created to help him in the exercise of his authority. well exercised, it is extremely efficient. there may be exceptions where arbitrary action is taken. on the other hand, law operates by redress or punishment rather than by prevention. it visits infractions of the rules with penalties. it does not supervise action. it leaves individuals free to act but imposes penalties on those who do not act in accordance with the rules prescribed. it is not quick enough, or automatic enough, to meet the requirements of a complex social organization.
take an example. a diseased animal lying on the courtyard of a neighbour. redress can be through a court of law. damages can be claimed if the diseased animal (which is neighbour’s property) led to some disease. can it be as this way of doing things? the answer is in negative. the better course is for the health officer to remove the animal and destroy it thereby preventing mischief. it may be that such action saves the whole neighbourhood.
such acts are judicial. the health officer considered whether the animal was dangerous or not. he decided that it was. there can be more complex situations. fixation of rates for a particular commodity – prices – is judicial adjudication. the action under workman’s compensation act is adjudication.
while the need for such administrative action is now accepted, there is a controversy as to who should conduct judicial review of such acts. as pointed out above, the question of facts as well as law are at present decided in ordinary court of law. in united states, courts have often held that administrative officers may have final power of even interpreting the law. for example mr justice shapard has stated in seymour vs. united states “the executive department is charged with perfectly independent duties which require the ascertainment of facts, involve the interpretation of law, and in many respects, call for the exercise of judgment and discretion; and this independence is so complete that no matter how gross an error may be committed in the exercise of these duties, the courts will, nevertheless, powerless to interfere (2 ap.d.c. 240) {quoted – administrative justice and supremacy of law – john dictinerson – p42}
or again.
“the courts will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even when these duties require an interpretation of law, (mr justice bradley in dunlop vs. black 128 us40 – quote ibid p 42)
in india, the practice and convention is different. injunctions – temporary and permanent – can be issued against the officers acting in their official duties by any court of law. sometimes the question is confused with that of supremacy of law. this is not correct. judicial review is not excluded. the law has to be followed. all we are discussing is whether such cases should be dealt with by the ordinary courts or special administrative courts. if former is allowed, it will mean process of adjudication in a separate compartment or cell, as it were, tightly sealed from the sphere of government action. there will be a single minded attention to the individual rights of the party immediately before the court, with only an incidental regard for the interests of the public at large; and with a disregard for the exigencies of the social policy which has been congenial to the naïve individualisation embedded in the philosophy of our present system. the introduction of administrative justice, with the resulting opportunity for policy and discretion to affect the determination of the individual rights is one of the ways which ensure that interests of the community as a whole will be considered.
under the system which we suggest, we closely follow, mutatis mutandis, the french system. appeals can be made to lie against the decisions of the executive officers (or courts) by expressly provided for special administrative courts. for various acts or combination of acts. these can be parallel set of law courts where magistrates are specially trained for the job. as already argued, they should not be in a tight compartment immune to the field conditions or the policy decisions. they may not be under the concerned department for the duration for which they are acting as magistrates of the special administrative courts. it may even be provided that their service conditions can be looked after by the department of justice. what we are arguing against is that there should not be water tight compartmentalisation. such an action, as proposed above, will ensure the necessary technical skills. without, in any way damaging the prospects of honourable justice and also ensure the welfare of those who are put on such duties.
the appeals from the lower administrative courts can be made to lie before the superior administrative courts which are established and run on the same principles as above. at the state and central level we can have the supreme administrative courts which will have functions resembling those of conseil détat. the supreme administrative court will also advise the state government in respect of drafting of the law and the rules thereunder. it will also be the final administrative court system. the central supreme administrative court will advice the central government regarding the drafting of the act. the constitutionality , and only the constitutionality, of the law can be tested in the supreme court of india.
here it is to be kept in mind that as the decisions of the administrative courts will have to be taken on the actions of the officers who are quite senior, the courts should also be manned by officers of sufficient seniority. again the appeals against such decisions should not be too many. the provisions of review or revision should also be limited. this is because we are advocating new system wholly with regard to the expediting decisions on these cases.
we have recommended for a completely independent review of constitutionality of the law and the rules by the highest court of the country.
the activity of the administrative courts has to be positive and not, what may be called restrictive. its function is to get something done, not merely to adjudicate controversies or mark out tights. these are only incidental. a utility commission, unlike a court, must focus the attention on the particular needs and particular difficulties of the special situation before it.
it should not be construed that the setting up of the administrative courts is meant to negate the principle of supremacy of law. it would not be a correct interpretation. the objective is to improve the machinery of judicial review by importing more specialisation. it is not a rival creation of any other agency. the idea is to tap the intimate knowledge of the field of the experienced officers and also to be responsive to social needs. nothing is more important for the attainment of the advantages of a regime of law than it should show, more and more, a record of wholesome application and growth. it must demonstrate increasing usefulness in order to retain the opportunity to be useful at all.
the lawyers and those legally trained are always subject to the temptation of viewing the law’s postures as too narrow and specific away. the real posture of law is not so much as to protect any special scheme of social arrangements as to further the ends for which the scheme itself exists. and where by virtue of altered circumstances the scheme becomes obsolete, it is not for the law to neglect the substance by perpetuating the form.
it is always a ticklish business for a private person to appeal against a decision which he believes incorrect. this is especially true of the people who cannot afford a lawyer; who have no administrative experience; or who have no connections with persons knowledgeable about the administrative matters. furthermore the administrative courts can also be asked to cover not only the financial wrongs and the mistakes but also expediency in dealing with a case. more often than not, it is the need in such cases for an agency to which a person can turn without many strict formalities.
the administrative courts can provide an external and yet not foreign checks upon operating officials. these can be developed as a relatively easy next step. staffed by men who understood administration because they, themselves have been a part of it, they can seek to harmonize individual protection with the official efficiency needed for the completion of larger tasks,
the french conseil détats may well be the finest flowering of the administrative justice. embracively supervising administrative decisions and simultaneously advising the cabinet, government, and the civil service concerning all phases of public administration - that is both redressing past grievances and proposing steps that may avoid their recurrence – the conseil détats is model to copy. serving as the general staff of the public service as well as being the custodian of justice, the conseil looks ait the matter before it not with the judicial eye of those trained to suspect government but with the administrative eye of those charged with maintaining it. there is no reason why we, in india, cannot learn from the french experience.
we must come to another important aspect of the deficiencies of the existing judicial system. this is the role of the law in relation to social and welfare activities of the government. the subject has achieved a notoriety in recent days following the nationalisation of certain banks and the supreme court reversal of such decisions. it is not suggested here or discussed that the decision of the supreme court was correct or not. we are only concerned with the general principle on whether the judicial system should give a right to the courts to stop the social change.
a case which immediately comes to mind is the creation of article 31a in the chapter on fundamental rights. this change was brought in so as to make it clear that the state’s right to ensure social welfare could not be limited by the constitution. article 31a was added in 1951 to make it clear that a law providing for the acquisition of the ‘estate’ ( e.g. zamindari abolition law) shall not be open to attack on the ground that it infringed any right of the individuals granted by the part 3 of the constitution.
it will be recalled that the zamindari abolition laws which came first in our programme of social welfare legislation was attacked by the vested interest affected by it mainly with reference to article 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation, and place these laws beyond challenge in the courts, article 31 a and 31b and the ninth schedule was enacted by the constitution (first amendment) act. subsequent judicial decisions interpreting article 1, 19 and 31 have raised serious difficulties in the way of the union and the states pulling through other and equally important social legislation on the desired lines for example while the abolition of zamindari and the numerous intermediaries between the state and the tillers of the soil has been achieved for the most part, our next objectives in the land reforms and fixing of limits to the extent agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum limit and the further modification of the right of land owners and tenant in agricultural holding.
in the interest of the national economy, the state shall have full control over the minerals and all resources of the country, including, in particular the powers to cancel or modify the terms and conditions of prospecting licences, mining leases, and similar agreements.
it is often necessary to take over under state management for a temporary period a commercial or industrial undertaking or other property in the public interest or in order to secure better management of the undertaking or the property. laws providing for such temporary transfers to the state management should be permissible under the constitution.
the reforms in the company law now under contemplation, like the progressive elimination of the managing agency system, provision for the company amalgamation of two or more companies in the national interest, the transfer of an undertaking from one company to another one. required to be placed above challenge. it is accordingly proposed in clause (3) of the bill to extend the scope of article 31 a so as to cover these categories of essential social welfare legislation.
the right of the court to delay or thwart the social welfare legislation was thus sought to be removed. however, the supreme court has now decided that the parliament cannot amend any article in part 3 of the constitution even if a provision in that part stands in the way of the social welfare legislation.
it has been suggested by some that a new constituent assembly should be called for such a purpose. however, there is no provision in the constitution under which such an assembly can be called. there is no provision in the constitution about referendum about any change in part 3 or any other part of the constitution. it is also not clear as to how a constituent assembly elected for a specific purpose on the basis of adult franchise, would differ in composition from the lok sabha now elected. the will of the people is generally reflected in the composition of lok sabha. why this cannot be accepted is not clear. even though the constitution is silent on this, the right is inherent.
this raises a fundamental question. can a wing created under the constitution for specific purposes try to make that constitution a stumbling block in progress or social change. a dynamic society calls for a creative jurisprudence and the consciousness of the nation must act in context. the court is just one organ of the government and must respond to social change. to this extent, the court has to study the social environment. this can be achieved only if the opportunities for this exist. otherwise the criticism of today becomes the disapprobation of tomorrow.
the real will of the people is embedded unconsciously in the national institutions rather than focussed in a single act of conscious volition. the existing body of law is an expression of the nature of people. it stands in an organic connection with the national character, grows as the people grow, develops with the people and declines when the people lose vitality. it is difficult to state a fact more conclusive of a strong and preponderant opinion than a popular vote upon an issue or by its representatives.
law should be stable and yet it cannot stand still. hence all thinking about laws has struggled to reconcile the competing demands of the need for stability and the need for change. in fact, it is due to the pervasiveness role of the law, that it is stated that “while law represented the usual opinion of yesterday, the judges represented the moral values day before”. (quoted by shri k. m. panicker in his dissent to the draft on fundamental rights- quote from emile iggnet) .
the example of computation between court and the legislature wing are not rare and are not peculiar to india. in our country, the question of nationalisation of banks comes immediately to mind but other cases are not rare. not very long ago, we had the confrontation between uttar pradesh assembly and the high court. while these were more about some important issue, the confrontation on smaller issues is common so as to escape notice. for example, we refer to the following newspaper report.
“prices of controlled and semi controlled industrial products have become an issue of confrontation between the government and the judiciary. in december, the cabinet decided not to allow any increase in the price of levy sugar provisionally fixed for the 1969-70 season at rs. 126.40in east uttar pradesh; rs. 126.92 in western zone and rs. 125.34 for the central zone.
some sugar mills in uttar pradesh approached the allahabad high court for fixation of economic prices. the high court upheld the mills plea and allowed levy prices which were rs. 16 to rs. 17 per quintal more than those fixed by the government for 1969-70 season. in a number of other cases, the court allowed a stay of the 1970-7 levy prices and ordered that the difference between economic price and the levy price be deposited with the court pending a final disposal of the appeal.? (hindustan times dated 28.4.1971) “
in the united states, the supreme court of united states threw out several of the conditional economic measures of the ‘new deal’ of president roosevelt in 1937. president then had to make these proposals which came to be called ‘court packing bill’. under this measure, he would have been empowered to appoint additional judges for each sitting judge who had passed the age of seventy. the motive was obvious and the bill was never passed. but certain judges voluntarily retired and others were apparently more receptive to extensive economic controls subsequently instituted.
in united kingdom, the supremacy of the parliament is universally recognised. in fact it is the supremacy of the lower house which is the first for all the legislative activity. when the house of lords did not fall in line with the proposed reforms act, the prime minister threatened to create many new peerages as to force the house of lords to approve the bill. the contingency did not arise since the upper house relaxed its oppsition. it will thus be seen that both in united states and united kingdom, the confrontation ended in indirect, not direct, acceptance of the principle of the supremacy of the elected representatives and not the appointed agents. it is not known as to why we have not accepted the british practice especially when we have accepted and copied, even blindly, so many other points of dubious utility. it is to be hoped, however, that the stage of actual confrontation is not reached in india and the principle of supremacy of elected representatives of the people in india is accepted.
it may be argued that a brute majority may create laws which oppress the minority group. this may very well be but can it be argued that if the majority of the people want to take a particular course, a handful of men, however prominent, can stop them. after all what is the agency through which the court can act if not the executive wing. if such action is not possible, the only course is to apply for the execution of the court decision to those who would listen to it. they are, as we have seen, in minority and should therefore be not in a position to help. the result may not be what the court intended but a lot of bloodshed, depending upon the course of events, wwhich might have been flown for nothing. if we can believe that the majority is good enough to govern the country and amend all provisions of the constitution, except part 3, we do not see any reason to believe why it cannot be trusted to do justice in respect of part 3.
it is, sometimes, lost sight of that the constituent assembly which drew up the constitution was not fully representative. the constitution making body was composed of representatives of british india (including the areas now in pakistan) elected by proportional representation by the members of the provincial assemblies. the members of each provincial assembly were to be divided into two groups, general and muslim except in punjab where they were to be divided in three groups – general, muslim, and sikhs. each group was to elect its own representatives. the number of representation allowed to each group and province was proportional to population, one million to one. to these 292 members, 4 members from chief commissioners’ provinces and 93 members from the indian states were to be added. the method of election was left to be determined by the consultation.
it is thus clear the present lok sabha is much more representative of the people of india than the constituent assembly. it is , therefore, surprising that the decisions of the constituent assembly cannot be reversed by the lok sabha.
the evolution of the society is through many phases. it cannot be thwarted by an arbitrary exercise of authority, the river may be stopped for a time by the mighty dam but unless outlets are provided, the dam’s stability cannot be guaranteed and then the process may do more damage than would have been done if uninterrupted flow had been there. the will of the people is supreme. the attempts to block it do often lead to violent upheavals. there has , fortunately, been no such vital issues so far but there is no reason to believe that if the constitution is not amenable to the will of the people, it may not create serious difficulties in future.
therefore the only way is to recognize that the lok sabha can amend each and every part of the constitution so that the proper outlet of the will of the people can be created and our constitution can be a dynamic, organic body and not a dead wood.
the other aspect of the judicial reform are not so fundamental and can be taken up in a detailed study. but it will be worthwhile to mention one relating to the law of ‘contempt of court’. we have generally accepted the principle that the prosecution and the judge will not be the same person. in fact we swear by such an attitude and any other approach is considered as blasphemy. but in the matter of ‘contempt of court’, this principle is not followed. the court is empowered to convict for its own contempt.
in the basic approach, contempt of court is any action of any individual trying to lower the authority of court by casting aspersions as to its attitude or decisions. but in actual practice, this has been extended to apply to cases which have no relation with the basic approach. for example, if someone is directed to produce a document to the court and he does not do so, it is termed to be contempt of the court whereas it should be considered as refusal to obey the orders of a lawful authority, a crime punishable under indian penal code. the law of contempt of court has been interpreted liberally to short circuit the legal process. this is sought to be maintained in the names of supremacy of justice. even the talk about the reform of the judicial system can be labelled as contempt since this, in effect, means that the present system does need some reform and it will be an attempt to bring the present system into disgrace. we do not think the gagging of opposition by such means will raise the efficiency of the system. it only generates discontent which may assume proportions which are dangerous to the whole society. it is not my contention that e m s namboodripad was right when he said that the present judicial officers are influenced by the class interests. but we do maintain that it is his right to hold opinions about the role of judiciary and to express them.
an interesting case about the extent of contempt of court is reported in air 1970sc1821. the calcutta high court held chief minister of bengal guilty of contempt for delivering a speech on all india radio in support of an order known as west bengal milk products control order 1965. in this case not only the speech on the petitioner or the court was taken to be contempt but also the likely effect on the likely litigants. in my view, on the ground, the whole of present judicial system which is largely responsible for accumulation of cases leading to deterrence of likely litigants from coming to courts is guilty of contempt of court and, therefore, on analogy, the whole of system should be dispensed with or hald to be in comtempt of court.
in other countries, the law of contempt is not taken so seriously. in one case, chief justice lord parker has observed, “even of a judge who eventually sat on the appeal had seen the article (comments made upon a person after his conviction and before the appeal was heard) in question and had remembered its contents, it is inconceivable that he would be influenced consciously or unconsciously by it. a judge is in a very different position to a jury man, though in no sense superhuman, he has by his training, no difficulty in putting out of his mind, matters which are not evidence in the case. this, indeed, happens daily to the judge on assize. this is all the more so in the case of a member of the court of criminal appeal, who in regard to an appeal against conviction is dealing almost entirely with points of law, and who, in the case of an appeal against sentence, is considering whether or not the sentence is correct in principle”. (regina vs. duffey ex parte nash (1960) 2 qb 188)
the pattern in india also needs to be changed. there is very often a demand for codification of the acts which amount to the contempt of court. we do not think this will go far enough. in my view, we should apply the principle of separation of prosecutor and the judge by appointing a jury of at least five persons (and maximum eleven) from various walks of life who can sit and judge whether the particular act amounted to bringing the dignity of the court into question or not. after all the purpose of law is to ensure that the common man retains the confidence in judiciary or not. we are arguing for the permission to common man to decide whether or not the confidence has been shaken. this should be satisfactory to everyone. for the acts in which the orders of the court are not followed, the action should be under the normal law of the land viz. disobedience of lawful orders of the lawful authority.
it may not be out of place to mention that even when the conviction of contempt is not by some court but by another, the system plays a part. we will quote two such cases to illustrate my point.
section 197 cr. p.c. has been enacted with a view to afford protection to public servants against vexatious and frivolous prosecutions at the hands of those who may come to bear grudge and malice towards them for what they have done in the course of discharge of their official functions. normally what is done in good faith in execution of official duties is never an offence in view of section 79 indian penal code. however, in practical life, even honest officers may commit mistakes. section 197 cr. p. c. is for such contingencies.
the above is to be kept in mind in the following case and also the fact that the mini9ster is a public servant within the meaning of section 197 cr. p.c.
a minister was to address a meeting. as he was preparing to do so, a person showed him a quantity of rotten atta and asked him if this was meant for eating. the questioner persisted in his question and hampered the progress of the meeting. the minister lost his temper and called him a ‘goonda’. a complaint under section 500 i. p.c was lodged and warrants were issued against the minister. his plea that he is covered by section 197 cr. p.c. was negatived by the high court (air 1970 bombay 385).
contrast this with the following. there was a complaint against a civil judge. the complainant was a witness before him. in the course of his deposition before the civil judge (the accused) the judge called the witness ‘nalayak’ and ultimately expressed the opinion that the witness be turned out after giving a shoe beating. it was held that the judge (against whom the complaint was lodged) was acting in a way which had a reasonable relation with the performance of official duties of the judge. (air 1959mp 230).
in another case the judge not only abused the complainant but slapped him on the cheek, unlaced his shoe and raised it, saying ‘ i will beat you with my shoe’. it was held that the judge was acting in the capacity of judge till he started dictating the judgment and cannot be said to have ceased acting as such when he started abusing and assaulting and showed that shoe to the complainant (air 1939 mad 604).
we have observed above that we consider judiciary to be another, though an important, wing of the government. the judicial officers form a part of the same society to which all others belong. it is not unreasonable to expect that the maladies of the general social structure are also shared by the judicial officers. one such malady now affecting india is corruption. the judiciary is not free from this, as indeed, it cannot be, being part of the society. in rajasthan, a magistrate was caught red handed while accepting rs. 11,450 from a person accused in a passport case (civic affairs nov.1962 p 51) in bombay, a magistrate was compulsorily retired on account of his malpractices. the then governor of bihar, shri anantasayanam iyenger while inaugurating the bihar lawyers’ conference on 3.4. 1963 said, “i an afraid , in some cases people have become persona disignata with the judges. you just appoint his lawyer because he is son in law or he belongs to this community, or if the case is transferred to some other judge, he gives up one lawyer and appoints the other. it is a disgrace to the lawyers. it is a disgrace to the judges. people were persona grata with this man or that man. not only here, the cancer has spread to the districts also. as i have heard, some boy becomes a lawyer and wherever his father is a subordinate judge, this boy is taken along. another case has come to my notice of a sub divisional officer being a satellite where he goes. it is a disgrace. “.
the question of propriety of such statements apart, the very act that a responsible governor was compelled to make such a statement publically indicates a very unsatisfactory state of affairs. the santhanam committee was prevented from looking into judicial ranks through the limitations of the terms of reference, but it did not feel confident to give the benefit of doubt to this sector. the report said that the committee were informed by responsible persons, including vigilance and special police establishment officers that corruption exists in the lower ranks of judiciary all over india and in some places it has spread to the higher ranks also.
we hold that corruption is the end product as a process of administration and is preceded by maladministration. for eradicating the former, the latter should be checked. suitable channels for ventilation of grievances of individuals against the system are an essential perquisite for checking maladministration.
at present the only remedy available to the aggrieved is an appeal or revision to a higher court of justice. this, we have already pointed out, is a time consuming process. secondly the system needs such elaborate proofs that the allegation is seldom proved. the ordinary persons have neither the time nor the inclination to take up a venture, purely for his satisfaction, the corruption is quite often a means to shield particular action and it is doubtful if a person is going to spend time to get this mode of corruption checked. the only remedy appears to be an independent system of checks and enquiries. if such a system is part of the judicial process, this will not amount to interference with the ‘dignity’ of the system.
there are two alternative systems available. one is that of ombudsman and the other that of procurator. the latter has been described briefly above. ombudsman system has been tried in scandanavion countries. they are appointed by the legislature but function independently of it. they are generally persons of proven independent status. they have no links with the executive and have only the most general answerability to the legislature. they have access to all official papers and can give ex-officio opinion about misdoings of the rulers and the administrators.
in japan, a similar system of administrative inspection bureau operates. this system is similar to that of the ombudsman. ombudsmanship is really a question of appointing well read, well qualified, popular persons so that they have the confidence of the people.
in india, the appointment of ombudsman has been recommended by several persons. in fact indian counterpart name of lokpal and lokayukt have been suggested. but even here it is suggested that that judiciary should be kept out f its jurisdiction. it has been suggested that the supreme court and high courts should have the power to issue writs in the nature of mandamus. it has been argued that the efficiency will not be much in the powers that may be vested in him as in the moral force that such an office will bring to bear on the administration and its functions.
none of the above solutions is satisfactory. to leave judiciary out of the purview of ombudsman or any other agency will leave an important organ of the government out of the purview of supervision why such a view be taken of one organ has not been made clear by anyone. further it will be quite difficult to find so many ombudsmen for the country who will be able to take up this work, in a honorary capacity. if the work is made payable, then it would not be ombudsmanship in the way it is envisaged and working elsewhere. the argument of moral opinion is really not worth describing. the corrupt have already lost their morals. in appealing to their finer feelings, it would be quite in order to first determine if they have any finer feeling. such an attitude will only be a case of wishful thinking. further what is envisaged in a hierarchy of ombudsmen which will act as a sort of judiciary. and will suffer from all the defects of exclusiveness, eparability, and the accumulation of work. there will be no check on their activities.
it is also important to realise that such an institution cannot take care of all administrative ills. it will work satisfactorily, if at all, in a country , province or state that is already well governed. where the administration is riddled with corruption and inefficiency, the problem is too big for ombudsman and the reform of the whole system is necessary. the system will become overloaded and fail in its essential function.
the solution, therefore, lies not in creating a few ( or even many) ombudsmen but to have a completely new approach. the procuracy of soviet union will be a good example to follow. in essence, it will meant creation of a new department. their work has not been properly studied because we have always believed that the institutions in communist countries are agencies for persecution. but this is not always correct. procuracy is one such agency. the procurators are given the right to inspect all documents. they can make on the spot investigations,; they can receive complaints; or can act suo moto. the special feature is to initiate action. the procurator need not wait until a citizen submits a complaint. it is to be stressed that the procurator does not interfere in the work of the bodies under his supervision. he does not annul illegal instruments, he does not punish anyone guilty of violating the law. he does not eliminate the cause of violation. his duty is to protest, not to decide. he acts through the organs of the state, through the government and through the courts. his weapons are three fold.
(i) objection – he can object to any illegal decision. he proposes that such violation be rectified. the objections are filed with a higher body. his objections have to be considered within a stipulated period.
(ii) presentment – it is a legal document through which the procurator responds to violation of the law or failure to take action or from a formalistic and bureaucratic attitude to the execution of the provisions of law. the body receiving the presentment is obliged to consider it within a month and to eliminate the reasons thereof.
(iii) institution of proceedings against officials – the proceedings can also be against the officials who permit violation of law, abuse of authority, neglect and red tapism or the departmental proceedings.
the procurator supervises police investigation of crimes. he presents the case in law courts. he can appeal against the decision of the law court. he can appeal against the decision of the law courts. he can enter objections to the illegal and unjustified judgements, decisions, findings and orders by the judicial organs etc. he can bring civil proceedings for protecting the rights and the legal interest of the citizens
the system is independent of other organs of the government. the appointment is for fixed term. in the soviet union, there were nearly 2000 procurators working in the hierarchical structure. in such a system, a person, instead of going to court himself, can approach the local procurator. the procurator does the rest including determining the question of illegality of the order and the action of the court. his functions extend to remedying the breach of law not only by the departments but also by the courts themselves. if the court gives an unjustifiable or illegal sentence, not only can the accused bring it to the notice of the higher court but the procurator can take up the matter up and lodge a protest against it so that illegality of the sentence or the breach of law committed by the court may be rectified by the higher tribunal.
such a system is of immediate relevance to indian conditions. it does not suffer from the shortcomings which the system of ombudsman does. it ensures the constant watch over all the organs of the government. it does not depend upon finding out of independent men of sufficient resources to be above board. it limits direct interference with the administration. it is the only agency which can succeed in indian circumstances.
we have briefly described the maladies of the present judicial system and have suggested remedies for them at various places above. these can now be summed but before that we may say a word on the approach so far. the legal system and the judicial system have been studied mostly by the lawyers. and they are directly interested in its working. secondly very often the fear of the unknown has deterred any attempts to rationalise the function. thirdly, there is too much attachment to the principle of separation. it has been overworked. the study of the basic character of indian situation is completely left out. in fact, so complete is our adherence to what we have been taught, that we do not take notice of even the progress, the teachers have made since the day they taught us what they knew then. this last point will bear some illustration but first let us note the fact that the present study is free from all these defects. there is no adherence to dogma; there is no reverence for the known devil; there is no fear of the unknown. without these attributes, the study would have remained a description of the frog’s world who did not move out of his well.
the doughmore committee and later the franks committee in united kingdom has said, “we agree with the doughmore committee that tribunals have certain characteristics which often give them advantages over the courts. they are cheap, accessible, freedom from technality, expeditious, and judges have expert knowledge of their subject. (framks report p 9)
on the other hand we have the views of the justice v. rameshwaran “there should be no break in our legal traditions and the present system of review by the high court. the constitutional climate in india is different from that in france, and my view is that the french system will not flourish satisfactorily in india. it is not a sound principle to vest final decision in administrative matters involving questions of law to administrative courts as in france. the english system of review by independent courts composed of professional judges is much more satisfactory. (role of law in planned society – journal of indian law institute 1958).
here is example of ‘known devil is better than the unknown’.
the independence of judiciary has been stressed more than what is necessary but we can take note of the system in other countries. in india, we had the tradition of an interchange of officers between magistracy and the executive duties. this system had worked very satisfactorily. the mistakes could be corrected at higher levels which were not under the executive in any sense. this deterred a sense of irresponsibility at lower levels. the civil justice is specialised to some extent and, as we have stated repeatedly, we do want special courts for specific purposes so that we proposed separate courts for civil matters. the criminal and the civil justice is thus proposed to be on the same lines as obtained before the present craze of separation set in 1947.
the administrative laws shall be administered by the administrative courts which will have specialists in their respective fields as judges. they will be under the jurisdiction of the ministry of justice but will be drawn from their departments after serving for a sufficient number of years. the courts will be two tier for states and three tier for the central laws. not more than one appeal will lie against any decision. the procurator (which agency is being proposed below) can protest against any decision. the senior level in states and the centre will also be in charge of advising the respective governments about the drafting of the law as also revising the rules and instructions in the light of experience.
the procuracy shall be headed by a procurator general to be appointed by the lok sabha. his tenure shall be a fixed one for seven years and he will not be liable to be removed except through procedure now envisaged for a supreme court judge. the procurator general will appoint chief procurator for each state . they will have fixed tenures. the concerned assembly by a two third majority can call for recall of a state chief procurator but otherwise he will not be answerable to the state government. the subordinate procurators will be appointed as per requirements and can be removed by the central procurator general.
the law of contempt has been briefly touched above. the suggestion is for all trials by jury. the jury will not have less than five persons and not more than eleven . they will be selected from the panel consisting of members from all walks of life. all members of the jury should be from different walks of life. such a panel will be kept separately for all the states. the panel names will be selected by the chief justice, state procurator general, the chief minister, opposition leader and shall be members for their lifetime. the number of persons on the panel shall not be more the 22. a similar panel will be selected for the centre. the number can eb suitably ib=nceased for bigger states.
In conclusion, it will be unfair to repeat what has been said once before viz. “the best of rules can be perverted . in the last analysis, the quality of legal procedure depends upon the people working it, abuses occur everywhere”.
the important thing is to consider, with a detached view, what will give the maximum relief to the aggrieved and which system will prove more adaptable to the obtaining circumstances. the fact of system having succeeded or failed elsewhere is no guide to our problems unless there is a parallel set of circumstances, which is a rarity. the best thing is to study one’s problem and suggest one’s own solution suited to the genius of the soil. and finally one cannot, after having considered all the aspects, argue that the system be not given a trial because it is not traditional. the traditions grow out of usage. they are not planted as full fledged traditions. if the french or the russian system have traditions, it is the result of more than 150 years of working. nor can it be said that tradition is the only important factor. one must learn from one’s own experiences and one’s own analysis of the situation.