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The
governments are under an obligation to provide an adequate machinery
for justice, to appoint more judges and to give them better emoluments
and facilities, to build more court houses, to enact better laws, to
devise better dispute resolution procedures, and to administer more
effectively and equitably, rather than to blame lawyers and judges for
the increase and proliferation of litigation.
-Former Chief Justice of India, R C Lahoti
We
must realize that the reason why Judiciary in India is respected is
because of the confidence which it has, over the years, come to enjoy
amongst masses for unbiased, impartial discharge of its constitutional
functions without fear or favour, or enmity or affection. The strength
of Indian Judiciary lies in its impartiality, its integrity and its
independence. However, it lies in the perception that Judges are free
from every form of prejudice and that in discharging their duties. The
very confidence of the people of India in the confidence and
impartiality of the judiciary which constitutes the moral foundation
upon the judiciary which neither has finances nor the physical
facilities to ensure compliance and effective implementation of its
orders. In a democratic form of government, judiciary occupies a special
position. While the bureaucracy is also a permanent set-up, it is under
the direct control of the politicians. Judiciary is given a special
position, though its budget is ultimately in the hands of politicians.
Though the constitution mandates a few items including the expenditure
on salaries, allowances and pensions of judges of the Supreme Court, the
functioning of the judiciary is still largely dependent on the of the
politicians, whose partiality because of their party interests and
selfishness is a matter of common knowledge. Independent judiciary is
not a pleasant thing for the politicians. As sometimes, they want their
political opponents to be punished for their criminal acts, they have
got to tolerate the judiciary as a necessary evil. The reluctance of the
politicians to promote courageous, honest and efficient judiciary in
the country is borne out from the fact that the allocation for judiciary
in the 10th Five-Year Plan (2002-07), was only Rs 700 crore, i.e. 0.07%
of the total Plan outlay. The budgetary allocation for judiciary in
most of the states is less than 1% towards judiciary. The Supreme
Court-approved salary hike for judicial officers has not been
implemented.
Recently
when the Supreme Court pronounced that in the Amar Singh phone tapping
case only one witness has been examined in the last four years, because
of repeated adjournments, the Bench of Justices G S Singhvi and A K
Ganguly observed with anguish: “This case should have been over in three
months. Adjournments have become a cancer to the institutions… The
system has already become sick. What can be the expectation of the
common man for speedy justice? Even in Supreme Court, a special leave
petition takes eight years to reach final hearing… We all give sermons.
We go to National Judicial Academy and give lectures to judicial
officers asking them to speed up disposal of cases. But where is the
infrastructure? They are already under heavy burden. There are only
lectures, committees and commissions, but no solutions.”
On February 22, 2011 (Friday) the Supreme Court held that the meager
budgetary provisions by the Centre and states impeded setting up of
additional courts and infrastructure needed to speed up the justice
delivery system. In this connection the Supreme Court
observed:[1]
“No government wants strong judiciary”.
It is only on the paper. Look at the budgetary allocation. It is less
than one %,” the bench remarked while pointing out that the judiciary is
overloaded and a large number of courts need to be set up across the
country for speedy justice
delivery.[2]
Pointing
out the infrastructural problem and growing vacancies in the judiciary,
the court said “it is a very difficult situation. If by chance the
government does it (setting up more courts), then we have difficulty in
getting competent people.”
Dispensation of justice is also impeded by not filling the posts of Judges in High Courts.
[3]
For example: the sanctioned strength of Allahabad High Court is 100.
There are 10 lakh of cases pending here. It has been functioning for
long with just 45 judges. The High Courts of Gujarat, Rajasthan, Punjab
and Haryana, Andhra Pradesh, Patna, Calcutta, Bombay, Karnataka and
Jharkand also deserve special mention in having the posts of judges
vacant for long. Out of a total pendency of 41.83 lakh cases pending in
the 21 High Courts of this country, these ten High Courts account for
68%. The number of vacancies in the trial courts is also alarming. Out
of 17090 judicial officers having a pendency of 2.78 crore of cases,
3070 posts are vacant.
Recently
speaking at the 17th Commonwealth Law Conference in Hyderabad, Mr Singh
said, “Our judges, while interpreting laws, have also widened their
scope and reach as lawgivers. The judicial process has a dynamic role to
play both as the guarantor of justice to litigants and as upholder of
the constitutional conscience. But at the same time, it has to be
ensured that the basic structure of our Constitution is not subordinated
to political impulses of the moment or to the will of transient
majorities.” Underlining the need for the judiciary to adapt itself to a
fast-changing world to retain its relevance, Mr Singh said the role of
courts and judges in making law an instrument of social stability and
progressive change cannot be over-emphasized.
[4]
The
truth is that the Government feels uncomfortable and embarrassed when
its partisan decisions are challenged and nullified by the judiciary.
Left to itself, the Government of the day would never have ordered
an inquiry into the 2G Spectrum plundering as it was afraid of losing
power in the event of withdrawal of support by its coalition partner,
the DMK. The former Minister for Telecommunication, A Raja, not only
ignored the suggestions of Union Minister for Law M. Veerappa Moily and
then Minister for Finance P Chidambaram, but also defied the Prime
Minister’s instructions. His successor, Mr Kapil Sibal, has trashed the
Comptroller and Auditor-General’s report, suggesting that the loss to
the exchequer was ‘zero’ and not a presumptive `1.76 lakh crore as
indicated by the CAG report.
[5]
The
judiciary is an important pillar of any democracy. In India, it has
performed creditably and stood the test of time in spite of what
self-serving politicians might say. But for judicial intervention, many
wrongs would never have been set right. Although, it can be said with
some surety is that crime cannot be hidden for long. It is but natural
that politicians will feel unhappy when pulled up by the judiciary. The
judiciary’s job however, is not to please politicians but to uphold the
law of the land. Despite rumblings in political parties, it should be
remembered that the judiciary has by and large acted creditably. Its
decisions are independent of political compulsions. India has adopted a
universal democratic pattern under which it is perfectly within the
domain of the judiciary to tell other branches of the state what they
should be doing, where they have transgressed and what are their limits
of power. Instead of finding fault with the judiciary, the Prime
Minister and his Government would do well to ensure speedy justice for
the commonman.[6]
Conclusion
In
an ideal situation, the judiciary will refrain from intruding into the
domain of the executive and the legislature and stick to applying and
interpreting the law. But when there is cynicism about the seriousness
and impartiality of the Government in stemming corruption, maintaining
checks and balances as has been mandated by the Constitution becomes
imperative. Irrespective of what any politician may say or feel, the
judiciary must continue doing its job without being swayed by either
pressure or criticism. The politicians in charge of the governmental
machinery in India are giving step-motherly treatment to the system of
judiciary. The age-old saying, ‘Justice delayed is justice denied’, is
deliberately neglected. The judiciary does not get the priority it
deserves both in administrative and financial matters. In the interest
of democracy, this trend should change. The youth of India have to
ensure this.
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