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  Discourse   22 Oct 2017  India’s Legal Logjam

India’s Legal Logjam

Published : Oct 22, 2017, 5:50 am IST
Updated : Oct 22, 2017, 5:52 am IST

In absence of enforceability of law, liberty becomes obsolete.

Fundamental rights are guaranteed, which makes them enforceable by law, that is, by approaching the courts.
 Fundamental rights are guaranteed, which makes them enforceable by law, that is, by approaching the courts.

Rights’ are possessed claims of individuals who live within an organised state, which can be enforced in courts of law. Rights maintain the fluidity of existence when individuals interact and live in the same society. Certain rights are essential and are recognised as fundamental rights, contained in Part III of the Constitution. 

Fundamental rights are guaranteed, which makes them enforceable by law, that is, by approaching the courts. Inversely, the state cannot infringe the same, and any laws that violate fundamental rights cannot subsist.

The Preamble of our Constitution seeks to secure to all citizens justice, liberty, equality and promotion of fraternity. This being the main purpose, one ought to examine the relevant provisions that give life and purpose to the Indian Constitution:

Article 14: The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. There is a prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, etc.

Article 21: No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. An interesting question arose: whether the right to justice can be a fundamental right? Justice is basically equity and fairness. The Constitution seeks to achieve justice for all its citizens.

However, this cannot be a fundamental right. The reason is simple: the Indian Constitution advocates justice by providing the means to achieve it i.e., through speedy justice, access to justice, legal aid etc. One cannot guarantee justice in itself, but what can be guaranteed are the access, infrastructure, and administration to achieve justice. The interpretation of ‘right to justice’ is ambiguous and not exhaustive. Justice is subjective and is often entangled within morality. This discretion would be defeated if the courts were compelled to entertain cases simply based on justice being delivered, even if it is trespassing the law. The following decisions point out attributes to securing justice. 

Hussainara Khatoon and Ors. vs. Home Secretary, state of Bihar, Patna, related to the enormous delay in bringing undertrial prisoners to trial. It was held by the Supreme Court that “Speedy trial is an essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Article 21.”

The court rejected the lack of financial resources as an excuse to deny justice. It was propounded as in Rhem v. Malclm, that “The law does not permit any government to deprive its citizens of their constitutional rights on a plea of poverty”. This was reiterated in Kadra Baheria vs. state of Bihar and Kartar Singh vs. state of Punjab.

In Anita Kushwaha and Ors. vs. Pushap Sudan and Ors, the Supreme Court laid down four main facets constituting the essence of ‘access to justice’: an effective adjudicatory mechanism, reasonable accessibility in terms of distance, speedy adjudication and affordability. The court held that: “Access to justice as a constitutional value will be a mere illusion if justice is not speedy.”

As seen above, these are fruits of judicial decisions. In January 2011, there was a discussion to add ‘right to justice’ as a fundamental right. The state is still endeavouring to provide legal aid to citizens who lack the financial resources to pay for it.

Hence, legal aid, speedy justice and access to justice are all wired in to achieve practical and real justice for citizens. Yet justice cannot be guaranteed, as ‘right to justice’, exclusive of criminal acts such as terrorism, smuggling and sedition etc., itself cannot make it an absolute fundamental right.

There is a strong classification in the kind of litigation one pursues, mainly, civil and criminal. An augmented need for justice is required for accused individuals languishing in jails, custodial deaths etc., yet one cannot impeach the importance of civil litigation which can be equally grim. The pendency of cases is multiplying with every passing day.

There have been many reforms in the judiciary in terms of administration. Some of the following reforms can be taken into consideration:

Penalise adjournments
Order 17 Rule 1 provides for a limitation of adjournments of not more than three times to a party during the hearing of a suit. A cumulative penalty after utilising such quota of adjournments should be imposed.

Establish circuit benches
Recently, a division bench of the Bombay High Court at Goa quashed the notification shifting the National Green Tribunal circuit bench from Pune to Delhi. Circuit benches provide access to justice and are feasible for litigants. In fact, there should be more circuit benches established for the convenience of litigants. This would also drastically reduce travel costs incurred by the government for its officers.

Increase induction of judges
Appointments should be made often and incentives should be attractive so that more young lawyers accept the honour of elevation to the bench. The age of retirement could also be extended, as a judge gets more experienced as he/she gets older, and that wisdom would definitely help.

Courts are undergoing a transformation with digitisation and entertaining e-petitions, e-documents and video-conferencing with parties unable to appear in person. This needs to be spread to more courts in the country. 

Encourage alternative dispute resolution
The stress on the judiciary cannot be reduced; certain matters have to be adjudicated upon by courts. But other issues such as commercial, corporate and family matters can be decided or settled through arbitration, mediation and conciliation.

Increase judicial infrastructure
Space is a hurdle, as courts are crammed with litigants, lawyers and staff. There is regular misplacing of papers. I believe the infrastructure of the court should be improved to encourage and increase the working capacity. Judges are over-burdened with work and the only way to resolve that is to appoint more judges and increase vacation assignments etc. 

There have been several judicial and governmental initiatives such as establishment of fast track courts, Lok Adalats and specialised courts and tribunals. 

This year the judiciary has given revolutionary judgements in the case of ‘right to privacy’ and ‘unconstitutionality of triple talaq’. It is important to patiently persevere to maintain the integrity of the judiciary and be optimistic of what lies ahead.

(The author is a practising Supreme Court and High Court lawyer. He specialises in constitutional and administrative law.)

Tags: indian constitution, religion