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Now Time For Diagnosis Of The Ills Of Subordinate Judiciary

The judges and the jurists of the country, and as also the print media, often make mountain of a mole hill in the matter of exercise of Public Interest Litigation jurisdiction by the judges of the higher courts. The same is much ado about nothing when there is no dispute that the power of judicial review over the functioning of the Executive and the Legislature for enforcing the fundamental and other rights of the citizenry under our constitution vests in the judiciary. So while discharging the said responsibility, the judiciary is bound to cause some aberrations here and there. It is neither possible and nor expedient to lay down the so called Lakshman Rekha.

Need of the time now is for appropriate diagnosis of the ills of the subordinate judiciary as the masses come only in the contact of subordinate judiciary where the litigant population is generally feeling oppressed, depressed, suppressed and compressed. The entire system is lying paralysed metabolically and mentally. About 3.5 crores of cases are now said to be pending in the subordinate courts. Under the burden of such a huge backlog of cases the entire system of subordinate judiciary is virtually choked. Hitherto there have been only casual correctives by the peers at the helm of affairs without any proper investigation into the causes of malfunctioning of subordinate courts.

As a right minded citizen and as an extinguished ex-participant in the system, I cannot help but remark that while such like occasional correctives by the peers may be well intentioned but the same are certainly not adequate and not likely to fulfill the desired objectives till the diagnosis of the ills of judicial system is properly done. Drowned under the weight of heavy docket of work and other reasons which are in legion, the Judges of the Apex and the High Courts perhaps do no have the time to realise the gravity of inefficiency syndrome in the lower judiciary which is eating into its vitals even more than the element of corruption. The Judges occasionally chant the mantra that the only problem in the rungs of the subordinate judiciary is of the pendency of a large number of cases for which increase in the number of subordinate courts is almost invariably suggested as a panacea.

The above said approach is only casual and cannot cure the ills. In Punjab and Haryana subordinate courts, of which I have a personal experience of 47 years, both as an ex-judicial officer and now as an advocate, there is no dearth of first appellate courts and the courts of civil judges-cum-magistrates and the infrastructure for the last about one decade but the working is still fast deteriorating because of changed work culture.

Earlier, only a decade back, practically all the presiding officers of the first appellate courts used to give dictation of evidence in all cases themselves but now the said practice has been almost given a complete go bye and the resultant effect is that there is no control over the proceedings which go unregulated. Most of the Sessions Judges do not record statements of the accused under section 313 of the Code of Criminal Procedure properly as the Public Prosecutors frame the questions and answers thereto are dictated by the defence counsel flouting the very purpose of recording such statements. In most of the courts judgments/orders are not pronounced on the stipulated dates and later on the orders are manipulated by showing as if the said orders were pronounced within the stipulated period of 7 days of hearing arguments and within 15 days of conclusion of evidence. Hardly three or four bail applications in a day are assigned to each court and even the said bail applications are some time not disposed of on the same day. There is no capacity of giving dictation of even a few simple and short sentences in the open court. This may be because of twin reasons i.e. either there is no capacity to dictate the orders in the open court or the presiding officers shun the dictation in the open court apprehending interference from the counsel appearing before them.

In the Matrimonial courts and as also before the Accident Claim Tribunals, evidence is being recorded not by the officers or even by the steno typists. The said evidence is being recorded by advocates as local commissioners and the manner of recording of evidence is most shabby. One cannot find even three sentences consecutively in the deposition of the witnesses recorded in this manner in which there are not 2-3 mistakes which is disgusting and gives such a shabby and poor impression about the working that the same is nauseating.

At the level of the magistracy a sort of fish market is created in most of the courts where evidence is being recorded at 2-3 places in criminal cases simultaneously by the court staff without any effective, nay even the remote, supervision of the presiding officers.

On civil side the legislature amended the Code of Civil Procedure, 1908 recently by prescribing that examination-in-chief of the witnesses will be by way of affidavits so that precious time of the courts was saved. The said amendment is nullified virtually by the entire subordinate judiciary by obtaining affidavits of witnesses on one date and then adjourning the case to some other date for cross-examination of the witnesses which is causing an acute hardship and inconvenience to the witnesses who are compelled to come to courts even more than twice for the same purpose. Primarily lawyers are responsible for this malady as they take the stand that they had not gone through the affidavits of the witnesses as the same were supplied to them on that very date. Further in the amended Code of Civil Procedure, at the most three adjournments are permitted to a party to lead its evidence in support of its cause but after conclusion of evidence, in most of the cases, numerous adjournments are being granted for leading rebuttal evidence and for addressing arguments as neither the advocates are ready for addressing arguments soon after the conclusion of evidence and nor the presiding officers are willing to hear arguments.

Judges of the Apex and the High Courts have shown serious concern on occasions regarding the malady of the winning over of the witnesses by the accused specially in heinous offences. This echo is but natural. But the dignitaries do not realise the diamond hard stark reality that instances are not lacking where the subordinate judiciary itself is a contributory to this malady. In some courts even sessions trials are being adjourned just on the asking of unscrupulous advocates till the inconvenient witnesses come round. I have a personal experience of appearing in a sessions trial in one of the courts in Haryana where a complainant in a sessions case did not appear consecutively for more than 15 hearings even though every time he was outside the court premises. He was insisting for payment of money to him. I personally apprised the judge concerned about the situation but he pleaded helplessness by stating that he could not do anything when the witness was not before him. Subsequently, when the said trial came to be transferred on the file of the Hon'ble Sessions Judge in routine then the matter was brought to his notice and this time the Sessions Judge took umbrage and called that witness from outside the court premises by sending his Naib Court and then only statement of the said witness could be recorded. In yet another murder case in Haryana, the defence counsel got adjourned the sessions trial on three dates so that he could manage compromise between the parties. When I, as a counsel for the complainant, protested on the fourth adjournment and requested for a short adjournment then in the open court the said advocate had even the audacity of stating within the hearing of the judge that before the next short date I myself could be killed. The Hon'ble Judge had not guts to initiate proceedings for contempt of court against the said advocate. Next day when I submitted application for initiating contempt of court proceedings in the said matter then the same was returned by telling me that I myself could move the said complaint for initiating contempt of court proceedings before the High Court.

Concern regarding the low rate of conviction in cases is also not entirely correct. The public perception in this direction is blurred by media hype. People, and even the Hon'ble Judges, are failing to discern that the penal provisions of dowry deaths and dowry related cases are generally being misused by the complainants. Even in most of the cases complaining rape, where victims are more than 18 years of age, the allegations of rape are on the face of them false. Police is also registering a large number of false cases under sections 399 and 402 IPC. In the dowry related and false rape cases the accused are being blackmailed and when they pay money to the complainants then the matters are settled and the cases go in acquittal with the resiling of witnesses.

Again the common and general perception today is that an accused is a devil and the complainants are poor victims. Even this projection needs correction. Instances are not uncommon when even innocent persons have to languish in jails for considerable periods without there being even semblance of evidence because of unwarranted dismissal of their bail applications and unwarranted convictions. Personal uncodified formulas have been evolved even at the High Court levels that sentences of those who have been awarded imprisonment by the trial courts for a period exceeding three years, will be suspended only after the convict first undergoes one fourth of the sentence imposed even though there may not be the slightest evidence against them. Then in some cases even this formula is not adhered to.

The height of inefficiency and bankruptcy of mind will be evident to the readers if I am permitted to quote 3-4 instances in which I myself had been the counsel. In one case the High Court had directed the Additional Sessions Judge to grant exemption to the accused on an application being moved before him on such terms and conditions as deemed appropriate. When application was moved the learned Additional Sessions Judge complied with the High Court order by giving direction "that the said accused was to attend the court in person at the stage of framing of charge, during recording of evidence of the prosecution, recording of the statements under section 313 Cr.P.C., at the time of hearing arguments, and, of course, at the time of judgment". The readers will wonder as to what dates were left out on which the accused was not to appear! In one more case the petitioner-husband failed to pay interim maintenance ordered against him in matrimonial proceedings under section 13 of Hindu Marriage Act, 1955 on the date when the case was fixed for recording his evidence. Instead of debarring the husband from proceeding with the case the Additional District Judge sent him behind bars without there being any execution petition from the side of the wife. It was observed that these powers were being exercised under Section 125 (3) of Code of Criminal Procedure, 1973. In yet another case, there were allegations against some police officials that they had fired shots upon an innocent citizen when he refused to cough up money on their demand which resulted into his instant death. The police came out with the counter version that they had simply given signal for stopping but there was firing upon the police party and the police party had to retaliate in defence. It was thus not the case of any of the two parties that the citizen died because of rash and negligent firing by the police. However, the learned Additional Sessions Judge framed charge under Section 304-A IPC which covers death by rash and negligent acts. The said Additional Sessions Judge even refused to rectify the charge when appropriate application was moved under Section 216 of the Code of Criminal Procedure. I refrain from quoting more instances showing total non-application of mind in the cases by the subordinate judiciary.

For the inefficiency syndrome there is liability of the Bar also as without effective assistance of the counsel representing the case there cannot be proper and effective verdict. One is lucky today if he gets a correct verdict in his cause. Justice is the psychological yearning of every human being and yet one has to depend upon his stars for a correct verdict. And let me hasten to clarify that corruption and workload are not the only causes behind this malady.

Oliver Wendell Holmes Jr. once remarked, "This is a court of law, Youngman, not a court of justice". The underlying sarcasm in this barb should generate and fuel the impulse of law courts and the advocates to turn the law courts into courts of justice.

In the words of Addison, "To be perfectly just is an attribute of the divine nature; to be so to the utmost of our abilities is the glory of man". It is this spirit which must motivate the Bar and the Judiciary to strive to realize its full potential and convert it into kinetic energy.

Legal fraternity has a great responsibility to ensure the process to achieve the true object of justice to all. The Judges have a duty to perform which is more onerous to keep the judicial ship afloat on even keel.

Sensitivity to all that we perceive, proper storage of all materials, intelligent docketing and developing the right impulses by training of the mind are sure to help in the development of perception needed to dispense justice according to law. The process is ongoing in everyone, but a conscious effort to develop the proper perception is the need. The ideal is difficult to achieve but the duties of the public oblige us to do our best.

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