INDIAN JUDICIARY- AN ANALYSIS

By-Vidhisha Haritwal

In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.

-Albert Einstein


Judiciary is a justice system that serves justice to the people of their country by providing fair trial. The judiciary is the organ to interpret the law and give assurance to provide advantage from the due procedure without doing ant delay. But the scenario is quite opposite as the backlog of cases everywhere is challenging for the courts to fulfil this agenda. Especially, Indian judiciary is overburdened with the accumulation of the cases which results in delaying the justice.Our Constitution of India, is not follow doctrine of Separation of Powers unlike USA, rather it has been restated the Independence of Judiciary in various cases as a part of our Constitution. So it is really essential to for the judiciary to act independently and impartially to serve the purpose of the constitution’s goal. Therefore, it is very essential for the judges to act reasonably, fairly, impartially and fearlessly. As the judiciary is the strong bridge between the state and their citizens against the misuse or any abuse of power by the executive. So, it is very necessary for the judiciary to be free from any executive pressure or any kind of external pressure or influence that has been given in different provisions of the Constitution.


Current Position

As it is rightly said by Albert Einstein, if the matter is related to truth and justice, the distinction should not be created between the large and small issues. If Judges fails to give justice in the initial stage then it will lead to create more heinous crime. The recent judgement of The Gujarat High Court where the court has quashed the FIR filed against the Principal and other staff of Sahjanand Girls Institute in Bhuj for stripping 66 female students to check whether they were menstruating.

Justice Joshi stated,


"Normally, this Court would not entertain the quashing petition in serious offences like offences under Sections 376 and 302 of the IPC. But, in the present case offfences which are registered upon the applicant are less serious in nature, which is discussed earlier. Therefore, with respect, latest law is not applicable to the present case." With the observation that continuing proceedings in respect of the FIR would be a “futile exercise”, the Court quashed the FIR.[1]


The above case is the proven example that the judges are somewhere not providing the justice to not only to those 66 girls but they are setting wrong example. Stopping the crime at the right moment and at the initial stage is an essential part here that the Indian Judiciary has to play which they miserably failed by giving the judgement.


Our Indian Judiciary has given other judgement also like by not giving right to marriage to the same sex people as our legal system and values do not recognize it and stating that it is very sacramental as stated by Solicitor General Tushar Mehta in Delhi High Court in the case of Iyer Mitra &Ors vs Union of India. As they clearly stated that the marriage is between a “man” and a “woman” and this cannot be possible in the same sex marriage.


The petitioners have rightly pleaded that just decriminalising the same sex marriage was not the permanent situation rather they can the act which speaks of solemnization of marriage between “any two Hindus.” As arguing Right to marry to your choice is the part of Article 21 of the Constitution of India. It affecting the social status of the homosexual couple union is lagging behind. They stated “It is against the Constitutional mandate of non-arbitrariness if the said right (to marry) is not extended to homosexual apart from heterosexual couples.”

Arguing that Right to marry is part of Article 21 of the Constitution of India, the Petitioners have contended. Even the petitioners have also pleaded that the denial of right to marriage to homosexuals couples is also against the various conventions of which India is also a signatory to including the Charter of Human Rights and it is tested the two fundamental rights under International Human Rights Law: Equality and Non Discrimination.


There are instances where our Judiciary remove dowry and sati which was consider as the value and custom under Hindu custom. So, Indian Judiciary has a right to give the status and the right that the homosexual couple deserves as much as the heterosexual couple.


Drawbacks

  • Backlog of cases: Indian Judiciary is facing an overburdened of the cases may be because of less number of judges or less number of courts which leads to backlog of the cases. This fact has not been hidden from anybody but still the implementation to cure is not found. In the whole situation poor people are suffer more. As the backlog leads to delay in justice and as it is rightly said that justice delay is justice denied.

  • No Transparency: As we know another problem face by the judiciary is the lack of transparency as Right to Information is not in the ambit of the legal judiciary. Maintaining transparency is the biggest challenge to the judiciary system particularly while appointing the Judges.

  • Judicial Activism: The term means when the judges pass the based on their opinion rather than from law. As we can clearly see in the two above cases that rather punishing accuse or giving right to the same sex couple they have been doing what their opinion is. These cases should be reviewed more if found challenge in other court.

Suggestions

  • Independence of the judiciary is directly linked with human rights and liberties of the society. Rights, decision and liberties would be reduced to the level of no more than just laws, when they are not enforced by courts. So, the judicial systems must be safeguarded, protected, strengthened and streamlined right from the bottom. So, freedom to operate independence of the judiciary is an indispensable condition for keeping alive the rights of the citizens. The real test of the independence of the judiciary arises when times are abnormal or judicial process is used to achieve political objectives. At such times judiciary is itself on trial. Another direction in which the judiciary faces threat is from within. If the Indian judiciary is to enjoy the confidence of the people, it could be achieved only by dedicated and conscientious work.

  • Delay in disposal of cases by the courts frustrates the purpose of justice the judiciary is facing the threat of mounting arrears and long delays. The system can yield results only if we abide by the norms of the system. Delay causes dismay, and creates disillusionment in, all those who knock at the doors of the courts.

  • In India remuneration of judges is far less compared to other countries, this is considered to be a reason that almost all judges after retirement get involved in some kind of activity for financial gain, some in the private sector and some in the public. Increasing the salary and pension of judges may mitigate their involvement in the financial sector, but this is not a reliable solution because greed has no end.

  • A certain cooling off period should be imposed, which needs to be completed before reinstating any public office. It will make sure that there were no political or executive involvements in decision-making of the judge. In my opinion, the cooling off period should be at least 10 years so as to make sure that 2 terms of the Lok Sabha are completed, which will mitigate the chances of external interference.

Conclusion

There are lots of problems with the judiciary in our country at all levels, but to each such problem, there is a definite set of solutions for them too. What is required is the willingness from the part of judiciary too. There is an urgent need to take reformatory measures for increasing the accountability of Indian judiciary for ensuring a fair, unbiased and speedy justice to the citizens.


The Constitution of India provides justice for all. Members of the Judiciary are the administrators of justice. The judges strive to ensure free and impartial administration of justice in order to provide its citizens fairness in application of law. The duty of judges is considered to be very pious, therefore the constitution has provided for independence of judiciary so that they can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or favor. The problem starts when the other organs, i.e. the legislature and the executive start to interfere with them. The external interference not only erodes the piousness of the profession, but curtails individuals of their rights. In the recent past it has been seen that retired judges takes public office within a very short span of time after their retirement.


Amazingly, it was found that they were involved in many decisions important to the government in their tenure and more surprisingly they ruled in favour of the government. These early-retirement appointments are a real issue to worry about. The decision of the court of hearing a useless political petition urgently and refusing to consider an urgent petition, involving real problems of needy people is not understandable.

Reference

[1]Lydia Suzanne Thomas, Bar and Bench, 25th September, 2020 https://www.barandbench.com/news/litigation/bhuj-stripping-case-gujarat-hc-quashes-fir Note- Views and opinions as expressed in this article are solely of the author and Indian Legal Wing is not liable for the same. The information contained in this article is for general information purposes only. We endeavour to keep all the information up to date and try our level best to avoid any misinformation or any kind of objectionable content. If you found any misinformation or objectionable contents in this website please report us at indianlegalwing@gmail.com

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