Thesis

Judicial Reforms in India: A Case Study of Uttar

Pradesh Thesis submitted for the Degree of

Doctor of Philosophy in

Public Administration By

Divya Anand

Under the Supervision of

Prof. Manoj Dixit (Professor, Department of Public Administration)

Department of Public Administration University of Lucknow, Lucknow

June, 2014

This is to certify that Ms. Divya Anand has completed

her research on “Judicial Reforms in India: A Case Study

of Uttar Pradesh” under my supervision in the Department

of Public Administration, University of Lucknow, Lucknow as

per the Ph.D. ordinance of University of Lucknow, Lucknow.

This thesis embodies the result of the candidate’s own

investigations conducted during the research period.

TO WHOM IT MAY CONCERN

I wish her the best for her future endevours.

(Prof. Manoj Dixit)

This thesis submitted for the award of the Doctor of

Philosophy Degree in Department of Public Administration

titled “Judicial Reforms in India: A Case Study of Uttar

Pradesh” is entirely original and the best of my knowledge

and belief, this thesis has not been submitted in part or full,

to this university or any other University / Institution for the

award of any degree.

DECLARATION

(Divya Anand)

Department of Public Administration

University of Lucknow,

Lucknow

Acknowledgement

Pursuing a Ph.D. research work is a both painful and

enjoyable experience. It’s just like climbing a high peak, step by

step, accompanied with bitterness, hardships, frustration,

encouragement and trust and with so many people’s kind help.

When I found myself at the top enjoying the beautiful scenery, I

realized that it was, in fact, teamwork that got me there. Though it

will not be enough to express my gratitude in words to all those

people who helped me, I would still like to give my many, many

thanks to all these people.

First of all, I would like to give my sincere thanks to my

honorific supervisor, Prof. Manoj Dixit, Professor, Department of

Public Administration, University of Lucknow, Lucknow; who

accepted me as his Ph.D. student without any hesitation when I

presented him my research proposal. Thereafter, he offered me so

much advice, patiently supervising me, and always guiding me in

the right direction. I have learned a lot from him, without his help I

could not have finished my research work successfully.

I am thank full to Prof. Rashmi Pandey, Dean, Faculty of

Arts, University of Lucknow, Lucknow. His valuable guidance has

given me energy to complete my research work.

I am also thankful to Prof. Kumkum Kishore (Head),

Department of Public Administration, University of Lucknow,

Lucknow for being kind enough to provide Departmental help for

submission of the thesis.

I sincerely acknowledge the contribution of Dr. N L Bharti,

Dr. Vaishali Saxena, Ms. Nandita Kaushal for their constant

encouragement. I have no doubt; it was difficult for me to complete

my work without their motivation and valuable suggestions.

I would like to express my appreciation to all those

departments and persons who have offered me their time when I

collected necessary data for my research work in their

departments.

I am very grateful to my parents. Their understanding and

their love encouraged me to work hard and to pursue my Ph.D.

research work. Their firm and kind-hearted personalities has

affected me to be steadfast and never bend to difficulty. They

always lets me know that they are proud of me, which motivates

me to work harder and do my best.

How can I forget the obligation to thank my brothers and

sisters for their constant encouragement and sharing my burden

in order to let complete my research work. They form the backbone

and origin of my happiness. Their love and support without any

complaint or regret has enabled me to complete this Ph.D. project.

Of course the final responsibility of any slip or gap is mine;

however the affirmative results be shared by all, friends, inspirers

and my teachers.

Date: (Divya Anand)

i

Preface

While the corporate media often lionises the judicial system

as the only working wing of the State and projects it as the only

institution which stands in the way of a government controlled by

criminals, the vast majority of the country do not see the judicial

system as capable of providing any modicum of justice to them.

The system is totally inaccessible to the poor of the country, being

so formal and procedurally complex that it can only be accessed

with the help of lawyers, whom the poor cannot afford. Even those

who can access it cannot hope to get their disputes adjudicated

within a reasonable time. The majority of undertrials spend more

time during trials than the maximum sentence that can be

imposed upon them. Even if they are out of jail during this time,

the agony of defending themselves during this long trial is more

painful and taxing than serving the sentence that could be

imposed. In fact, the agony of a trial through the judicial system

has become the easiest way for the police and powerful persons

who can have the police at their beck and call, to harass,

intimidate and silence inconvenient persons, especially political

activists who are trying to change the oppressive and exploitative

system of the country.

Even if one can get one’s case decided by the court, the

course of justice is often perverted by corruption within the

judiciary and indeed within the entire system of administration of

justice. The corruption within the judicial system is no less than

that of any other institution of the State, and is well known to

those who have had to deal with it. It is less visible because of the

ii

lack of any system of accountability of the judiciary, and because

the media is unwilling to talk about it, due to the fear of contempt.

The corruption within the judiciary is exacerbated by the total lack

of accountability of the judiciary in the present system. Not only is

there no system for disciplining corrupt judges (other than an

unworkable system of impeachment), the Supreme Court has by a

self serving judgment removed judges even from the ambit of

criminal investigation. Thus one cannot even register an FIR

against a judge taking bribes openly without the prior permission

of the Chief Justice of India, which has never been given. The

judiciary protects its own very zealously.

On top of all this immunity to the judiciary is the power of

contempt of Court, which can be and has been used by the

judiciary to stifle public criticism, or even an honest evaluation of

the judiciary. This threat of contempt has prevented a frank

discussion of the judiciary by the media, which is partly the reason

why there hasn’t been any serious public debate about the state of

the judiciary. And now the judiciary is even seeking to remove itself

from the purview of the Right to Information Act. After having

loudly pronounced that the citizens have a right to know

everything that goes on in every public institution, the Supreme

Court asks the government to effectively exempt it from the

purview of the Act by removing the jurisdiction of the independent

appellate authority, the Central Information Commission over the

Registrar of the Court. It was also recommended that the Chief

Justice should be the final word in deciding whether any

information about the Court should be given out or not. Most High

Court have not even appointed a public information officer under

the Act, and the Delhi High Court has framed rules which

iii

prohibits the release of non judicial information about the court,

such as purchases and appointments. All this has ensured that

the judiciary becomes a law unto itself, totally non transparent,

and accountable to none.

It is this complete insulation from all accountability, which

has led to a situation where it can easily transgress its jurisdiction

by interfering in matters of the formation and implementation of

executive policy. Under the cover of its expansive interpretation of

Article 21 (which by itself is not objectionable), particularly the

right to environment, the judiciary has been ordering the removal

of slums from the Yamuna Pushta, hawkers and rickshaw pullers

from the streets of Delhi, and has even directed the government to

take up the highly controversial project of interlinking of rivers.

Sometimes these arbitrary powers are being exercised against the

wishes of the executive, but often in connivance with the executive,

allowing the executive to do what a democratically accountable

government dare not do, such as demolish the yamuna pushta

slums of Delhi or take up the project of interlinking of rivers.

The recent orders regarding the sealing of commercial

establishments running in residential areas in Delhi is another

example of judicial high handedness. Though it was well within the

powers of the judiciary to stop the violation of the Master plan, it

could have ordered the government to consider altering the

masterplan just as they were ordering the sealing of commercial

users. Moreover, it was totally beyond the jurisdiction of the

Courts to order the sealing of properties even after the Master Plan

had been amended to allow commercial user in some areas, merely

because they had been made to give affidavits earlier that they

iv

would stop the commercial user by a certain date.

It is this lack of accountability which has allowed the

judiciary to take decisions which are against their declared creed

regarding the rights of the poor and trample upon their rights with

such impunity. Thus, after having declared that the Constitution

guarantees every citizen the right to shelter and livelihood, the

courts have nonetheless ordered the homes of hundreds of

thousands of slum dwellers of Delhi and Bombay to be ruthlessly

bulldozed, without providing them with any alternative dwelling.

They have also ordered hundreds of thousands of hawkers and

rickshaw pullers to be driven off the streets of Delhi and Mumbai,

thus depriving them of their livelihood, without making any

alternative arrangement for them. While this is partly due to the

elitist background of the judges and the impact of the new

economic policies on their thinking, where human rights have also

been left to market forces, such wanton disregard for basic

constitutional values is also facilitated by the impunity engendered

by this total lack of accountability of the judiciary. For the poor

therefore, the judiciary like the police has become an instrument of

oppression rather than an institution for the protection of their

rights. They have come to fear and hate the judiciary almost as

much as they fear and hate the police.

The ruling establishment, particularly successive law

commissions have devoted considerable thought to some of the

problems which afflict the judiciary, particularly to that of the

lethargy of the system. However, not much thought has been

devoted to some of the other problems such as access of the poor

to the system or the elitist sensitivities and bias of the judges, or

v

even to the issue of judicial accountability. And the law

commissions, manned as they have been, largely by retired judges,

have displayed their own establishmentarian and elitist biases in

their reports. They have therefore suggested patchwork solutions

rather than the radical restructuring of the judiciary that is

required.

The solution suggested for judicial accountability has been a

feeble in house system where sitting judges are supposed to hold

their own brothers to account. And in the unlikely event that they

hold their brother guilty, they again send the matter to Parliament

for considering the impeachment of the judge. This is one of those

recommendations of the Law Commission which is acceptable to

both the government and the judiciary, keeping the feeble

accountability introduced within the judicial family. The Judicial

Council bill cleared by the Cabinet recently, seeks to give statutory

status to the “In house procedure” for inquiring into complaints

against judges which was adopted by a Chief Justices conference

almost 10 years ago, but which has hardly ever been used.

However the Law Commission’s recommendations made 20

years ago about a 5 fold increase in the number of judges have

been gathering dust as are most of its even somewhat radical

recommendations. Neither the government nor the judiciary has

made any effort to have those adopted. The record of both the

executive and the judiciary regarding judicial reforms does not

inspire any confidence that they are serious about making the

judicial system work. It appears that both are content with the

present non functional and unaccountable judicial system. And for

good reason too. The judges are happy with the total lack of

vi

accountability and impunity that they have in the system and the

government is happy with the non functioning of an institution

which could hold them to account. The media hyped skirmishes

that we see between the judiciary and the executive mask a much

bigger partnership between the institutions, where they have

teamed up together to do what they want with impunity but also

appropriate land and other resources from the poor and give them

away to large vested commercial interests.

However, with the judiciary becoming more and more

powerful and increasingly arbitrary and anti poor, allowing the

administration of justice to remain in the hands of the elitist ruling

establishment would be suicidal for the common people of the

country. Time is running out for all of us. The people need to take

charge and drive this campaign to reclaim the judicial system.

Every citizen of the country has a vital stake in the proper

functioning of the judicial system. Ignoring it will not only intensify

the judiciary’s assault on the poor, it is the path to anarchy. The

rule of law cannot survive in the absence of a properly functioning

system for the administration of justice. The people need to reclaim

the judiciary by having it restructured in accordance with the

needs of the common people.

Date: (Divya Anand)

CONTENTS

Chapter: 1 Judicial System in Ancient India 1 - 76

Chapter: 2 Review of Literature and Methodology 77 – 91

Chapter: 3 Conceptual Understanding of Justice 92 - 134

Chapter: 4 Judicial Reforms 135 - 195

Chapter: 5 Structure of Courts of Uttar Pradesh 197 - 211

Chapter: 6 Evaluation of Judicial Response 212 – 264

Chapter: 7 Conclusion and Suggestions 265 – 293

Bibliography I - XXXI

ANNEXURES

Chapter : One

Judicial System in Ancient India

1

Chapter - One

Judicial System in India

India has the oldest judiciary in the world. No other

judicial system has a more ancient or exalted pedigree. But

before describing the judicial system of ancient India I must

utter a warning. The reader must reject the colossal

misrepresentation of Indian Jurisprudence and the legal system

of ancient India by certain British writers. I shall give a few

specimens. Henry Mayne described the legal system of ancient

India "as an apparatus of cruel absurdities". An Anglo-Indian

jurist made the following remark about what he called "the

oriental habits of life" of the Indians before the British turned up

in India: "It (British rule in India) is a record of experiments made

by foreign rulers to govern alien races in a strange land, to adapt

European institutions to Oriental habits of life, and to make

definite laws supreme amongst peoples who bad always

associated government with arbitrary and uncontrolled

authority."1 Alan Gledhill, a retired member of the Indian Civil

Service, wrote that when the British seized power in India,

"there was a dearth of legal principles."2

These statements are untrue. It is not for me to guess

why they were made. They may be due to sheer ignorance, or

imperialist self-interest, or contempt for Indian culture and

civilization which was a part of the imperialist outlook which

1 History of the Constitution of the Courts and Legislative Authorities in India, by Cowell (1872), p.3. 2 Alan Gledhill: The Republic of India, p.147. In fairness I must state that several British Indologists of eminence like E.B. Havell, A.L.Basham,

Spellman, and others, do not share the prejudices of their imperialist predecessors though their approach may be different from ours. The reader is advised to study The History of Aryans Rule in India by E.B. Havell; The Wonder that was India by A.L. Basham, and Political Theory of Ancient India by John W. Spellman.

2

dominated British Jurists, historians, and thinkers in the

heyday of imperialism. But the effect of this misrepresentation,

which has few parallels in history, was to create a false picture

of the Indian judicial system both in India and outside.

We must go the original texts to get a true and correct

picture of the legal system of ancient India. The reader will

discover from them that Indian jurisprudence was found on the

rule of law; that the King himself was subject to the law; that

arbitrary power was unknown to Indian political theory and

jurisprudence and the king’s right to govern was subject to the

fulfillment of duties the breach of which resulted in forfeiture of

kingship; that the judges were independent and subject only to

the law; that ancient India had the highest standard of any

nation of antiquity as regards the ability, learning, integrity,

impartiality, and independence of the judiciary, and these

standards have not been surpassed till today ; that the Indian

judiciary consisted of a hierarchy of judges with the Court of the

Chief Justice (Praadvivaka) at the top, each higher Court being

invested with the power to review the decision of the Courts

below ; that disputes were decided essentially in accordance

with the same principles of natural justice which govern the

judicial process in the modern State today: that the rules of

procedure and evidence were similar to those followed today ;

that supernatural modes of proof like the ordeal were

discourage ; that in criminal trials the accused could not be

punished unless his guilt was proved according to law ; that in

civil cases the trial consisted of four stages like any modern trial

– plaint, reply, hearing and decree ; that such doctrines as res

judicata (prang nyaya) were familiar to Indian jurisprudence ;

that all trials, civil or criminal, were heard by a bench of several

judges and rarely by a judge sitting singly ; that the decrees of

3

all courts except the King were subject to appeal or review

according to fixed principles ; that the fundamental duty of the

Court was to do justice "without favour or fear".

Rule of law in Ancient India

Was there a rule of law in ancient India? Let the texts

speak for themselves. In the Mahabharata, it was laid down " A

King who after having sworn that he shall protect his subjects

fails to protect them should be executed like a mad dog."

"The people should execute a king who does not protect

them, but deprives them of their property and assets and who

takes no advice or guidance from any one. Such a king is not a

king but misfortune."

These provisions indicate that sovereignty was based on

an implied social compact and if the King violated the

traditional pact, he forfeited his kingship. Coming to the

historical times of Mauryan Empire, Kautilya describes the

duties of a king in the Arth-shastra thus : "In the happiness of

his subjects lies the King’s happiness; in their welfare his

welfare; whatever pleases him he shall not consider as good, but

whether pleases his people he shall consider to good."

The Principle enunciated by Kautilya was based on a very

ancient tradition which was already established in the age of the

Ramayana. Rama, the King of Ayodhya, was compelled to

banish his queen, whom he loved and in whose chastity he had

comlete faith, simply because his subjects disapproved of his

having taken back a wife who had spent a year in the house of

her abductor. The king submitted to the will of people thopugh

it broke his heart.

4

In the Mahabharata it is related that a common fisherman

refused to give his daughter in marriage to the King of

Hastinapur unless he accepted the condition that his daughter’s

sons and not the heirapparent from a former queen would

succeed to the throne. The renunciation of the throne and the

vow of life-long celibacy (Bhishma Pratgyan) by Prince Deva

Vrata is one of the most moving episodes in the Mahabharata.

But its signifiance for jurists is that even the sovereign was not

above the law. The great King of Hastinapur could not compel

the humblest of his subjects to give his daughter in marriage to

him without accepting his terms. It refutes the view that the

kings in ancient India were "Oriental despots" who could do

what they liked regardless of the law or the rights of their

subjects.

Judiciary in Ancient India

With this introductory warning, I shall endeavour to

describe the judicial system of ancient India. According to the

Artha-shastra of Kautilya, who is generally recognised as the

Prime Minister of the first Maurya Emperor (322-298 B.C.), the

realm was divided into administrative units called Sthaniya,

Dronamukha, Khrvatika and Sangrahana (the ancient

equivalents of the modern districts, tehsils and Parganas).

Sthaniya was a fortress established in the center of eight

hundred villages, a dronamukha in the midst of 400 villages, a

kharvatika in the midst of 200 villages and a sangrahana in the

center of ten villages, Law courts were established in each

sangrahana, and also at the meeting places of districts

(Janapadasandhishu). The Court consisted of three jurists

(dhramastha) and three ministers (amatya).

5

This suggests the existence of circuit courts, for it is

hardly likely that three ministers were permanently posted in

each district of the realm.

The great jurists, Manu, Yajn-valkya, Katyayana,

Brihaspati and others, and in later times commentators like

Vachaspati Misra and others, described in detail the judicial

system and legal procedure which prevailed in India from

ancient times till the close of the Middle Ages.

Hierarchy of courts in Ancient India

According to Brihaspati Smiriti, there was a hierarchy of

courts in Ancient India beginning with the family Courts and

ending with the King. The lowest was the family arbitrator. The

next higher court was that of the judge; the next of the Chief

Justice who was called Praadivivaka, or adhyaksha; and at the

top was the King’s court.

The jurisdiction of each was determined by the

importance of the dispute, the minor disputes being decided by

the lowest court and the most important by the king. The

decision of each higher Court superseded that of the court

below.

According to Vachaspati Misra, "The binding effect of the

decisions of these tribunals, ending with that of the king, is in

the ascending order, and each following decision shall prevail

against the preceding one because of the higher degree of

learning and knowledge".

It is noteworthy that the Indian judiciary today also

consists of a hierarchy of courts organized on a similar

principle-the village courts, the Munsif, the Civil Judge, the

6

District Judge, the High Court, and finally the Supreme Court

which takes the place of the King’s Court. We are following an

ancient tradition without being conscious of it.

The institution of family judges is noteworthy. The unit of

society was the joint family which might consist of four

generations. Consequently, the number of the member of a joint

family at any given time could be very large and it was

necessary to settle their disputes with firmness combined with

sympathy and tact. It was also desirable that disputes should

be decided in the first instance by an arbitrator within the

family. Modern Japan has a somewhat similar system of family

Courts. The significance of the family courts is that the judicial

system had its roots in the social system which explains its

success.

The fountain source of justice was the sovereign. In

Indian jurisprudence dispensing justice and awarding

punishment was one of the primary attributes of sovereignty.

Being the fountain source of justice, in the beginning the

king was expected to administer justice in person, but strictly

according to law, and under the guidance of judges learned in

law.

A very strict code of judicial conduct was prescribed for

the king. He was required to decide cases in open trial and in

the court-room, and his dress and demeanour were to be such

as not to overawe the litigants. He was required to take the oath

of impartiality, and decide cases without bias or attachment.

Says Katyayana: "The king should enter the court-room

modestly dressed, take his seat facing east, and with an

attentive mind hear the suits of his litigants. He should act

7

under the guidance of his Chief Justice (Praadvivaka), judges,

ministers and the Brahmana members of his council. A king

who dispenses justice in this manner and according to law

resides in heaven".

These provisions are significant. The king was required to

be modestly dressed (vineeta-vesha) so that the litigants were

not intimidated. The code of conduct prescribed for the king

when acting as a judge was very strict and he was required to

be free from all "attachment or prejudice" Says Narada: "If a

king disposes of law suits (vyavaharan) in accordance with law

and is self-restrained ( in court), in him the seven virtues meet

like seven flames in the fire" Narada enjoins that when the king

occupies the judgment seat (dharmasanam), he must be

impartial to all beings, having taken the oath of the son of

Vivasvan. (The oath of Vivasvan is the oath of impartiality: the

son of Vivasvan is Yama, the god of death, who is impartial to

all living beings).

The King’s Judges

The judges and counselors guiding the king during the

trial of a case were required to be independent and fearless and

prevent him from committing any error or injustice. Says

Katyayana: "If the king wants to inflict upon the litigants

(vivadinam) an illegal or unrighteous decision, it is the duty of

the judge (samya) to warn the king and prevent him.”

"The judge guiding the king must give his opinion which

he considers to be according to law, if the king does not listen,

the judge at least has done his duty. When the judge realizes

that the king has deviated from equity and justice, his duty is

not to please the king for this is no occasion for soft speech

8

(vaktavyam tat priyam natra); if the judge fails in his duty, he is

guilty."

Delegation of Judicial power by the King

As civilization advanced, the king’s functions became

more numerous and he had less and less time to hear suits in

person, and was compelled to delegate more and more of his

judicial function to professional judges. Katyayana says: "If due

to pressure of work, the king cannot hear suits in person he

should appoint as a judge a Brahmin learned in the Vedas."

The qualifications prescribed for a judge were very high.

According to Katyayana; "A judge should be austere and

restrained, impartial in temperament, steadfast, God-fearing,

assiduous in his duties, free from anger, leading a righteous life,

and of good family.

In course of time, a judicial hierarchy was created which

relieved the king of much of the judicial work, but leaving

untouched his powers as the highest court of appeal. Under the

Maurya Empire a regular judicial service existed as described

above.

Quality of the Judiciary: Integrity

I shall now say a few words about the quality of the

Judiciary and the code of conduct prescribed for judges. The

foremost duty of a judge was integrity which included

impartiality and a total absence of bias or attachment. The

concept of integrity was given a very wide meaning and the

judicial code of integrity was very strict. Says Brihaspati: "A

judge should decide cases without any consideration of personal

gain or any kind of personal bias; and his decision should be in

9

accordance with the procedure prescribed by the texts. A judge

who performs his judicial duties in this manner achieves the

same spiritual merit as a person performing a Yajna."*

The strictest precautions were taken to ensure the

impartiality of judges. A trial had to be in open court and

judges were forbidden to talk to the parties privately while the

suit was pending because it was recognised that a private

hearing may lead to partiality (pakshapat). Shukra-nitisara

says: "Five causes destroy impartiality and lead to judges taking

sides in disputes. There are attachment, greed, fear, enmity,

and hearing a party in private."

Another safeguard of judicial integrity was that suits

could not be heard by a single judge, even if he was the king.

Our ancients realized that when two minds confer, there is less

chance of corruption or error, and they provided that the King

must sit with his counselors when deciding cases, and judges

must sit in benches of uneven numbers. Shukra-nitisara

enjoined that "Persons entrusted with judicial duties should be

learned in the Vedas, wise in wordly experience and should

function in groups of three, five, or seven." Kautilya also

enjoined that suits should be heard by three judges

(dharmasthstrayah). Our present judicial system, created by the

British, does not follow this excellent safeguard. Today every

suit is heard by a single Munsif or civil Judge or District Judge

for reasons of economy. But the state in ancient India was more

interested in the quality of justice than economy.

Integrity

Every Smriti emphasizes the supreme importance of

judicial integrity. Shukra-nitisara says: "The judges appointed

10

by the king should be well versed in procedure, wise, of good

character and temperament, soft in speech, impartial to friend

or foe, truthful, learned in law, active (not lazy), free from anger,

greed, or desire (for personal gain), and truthful."

Punishment for Corruption

Corruption was regarded as a heinous offence and all the

authorities are unanimous in prescribing the severest

punishment on a dishonest judge. Brihaspati says: "A judge

should be banished from the realm if he takes bribes and

thereby perpetrates injustice and betrays the confidence

reposed in him by a trusting public." A corrupt judge, a false

witness, and the murderer of a Brahmin are in the same class of

criminals. Vishnu says: "The state should confiscate the entire

property of a judge who is corrupt." Judicial misconduct

included conversing with litigants in private during the

pendency of a trial. Brihaspati says: "A judge or chief justice

(Praadvivaka) who privately converses with a party before the

case has been decided (anirnite), is to be punished like a

corrupt judge."

Jurors

The most noteworthy feature of the judicial system was

the institution of sabhasada or councilors who acted as

assessors or adviser of the King. They were the equivalent of the

modern jury, with one important difference. The jury of today

consists of laymen- "twelve shopkeepers"-whereas the

councilors who sat with the Sovereign were to be learned in law.

Yajanvalkya enjoins: "The Sovereign should appoint as

assessors of his court persons who are well versed in the

literature of the law, truthful, and by temperament capable of

11

complete impartiality between friend and foe."

These assessors or jurors were required to express their

opinion without fear, even to the point of disagreeing with the

Sovereign and warning him that his own opinion was contrary

to law and equity. Katyayana says: ‘The assessors should not

look on when they perceive the Sovereign inclined to decide a

dispute in violation of the law; if they keep silent they will go to

hell accompanied by the King." The same injunction is repeated

in an identical verse in Shukr-nitisara.3

3 Shukra, IV, 5,275

The Sovereign-or the

presiding judge in his absence-was not expected to overrule the

verdict of the jurors; on the contrary he was to pass a decree

(Jaya-patra) in accordance with their advice. Shukr-nitisara

says: " The King after observing that the assessors have given

their verdict should award the successful party a decree (Jaya-

patra)." Their status may be compared to the Judicial

Committee of the Privy Council which "humbly advise" their

Sovereign, but their advice is binding. It may also be compared

to the peoples’ assessors under the Soviet judicial system who

sit with the professional judge in the Peoples’ Court but are

equal in status to him and can overrule him.

But there was one exception. If in a difficult case the

jurors were unable to come to a conclusion, the Sovereign could

decide the matter himself. Shukra-nitisara says, "If they (the

assessors) are unable to decide a dispute because it raises

difficult or doubtful issues (sandigdha-roopinah), in such a case

the Sovereign may decide in the exercise of his Sovereign

privilege.

12

Criminal Trials

In criminal trials it appears that the question of innocence

or guilt of the accuse was decided by the judge or the jurors,

but the quantum of punishment was left to the King.4

Three systems of substantive law were recognized by the

court, the dharma-shastra, the arth-shastra, and custom which

was called sadachara or charitra. The first consisted of laws

which derived their ultimate sanction from the smritis and the

In the

trial scene in Mrichchhakatika, The Little Clay Court, the judge

after pronouncing Charudatta guilty of the murder of

Vasantasena, referred the question of punishment to the King

with the remark, "The decision with regard to Charudatta’s guilt

or innocence lies with us and our decision is binding

(Pramanam), but the rest lies with the King."

Interpretation of the Text of the law

Principles of interpretation were developed to high degree

of perfection. Judges were required to decide cases, criminal

and civil, according to law (samyak, yath-shastram, shastro

ditena vidhina). This involved interpretation of the written text

of the law-a task which created many problems such as the

elucidation of obscure words and phrases in the text,

reconciliation of conflicting provisions in the same law, solution

of conflict between the letter of the law and principles of equity,

justice and good conscience, adjustment of custom and smritis,

and so on. This branch of law was highly developed and a

number of principles were enunciated for the guidance of the

courts. The most important of them related to the conflict

between the dharm-shastra and the artha-shastra.

4 The State and Government in Ancient India, by A.S. Alkkar, p.249.

13

second of principles of government. The bordr line between the

two often overlapped. But the real distinction between the

smritis and arth-shastra is uniformaly secular, but that of the

dharma-shastra not always so. IN fact so remarkably secular is

the arth-shastra in its approach to the problems of government

that this has induced some writers to advance the theory that

the artha-shastra (literal meaning: the science of ‘artha’ or

pursuit of material welfare), did not evolve from the dharma-

shastra but had an independent origin and developed parallel to

it.

Whatever their respective origins, in several matters the

arthashastra and the dharma-shastra are in conflict. How did

the law courts resolve this conflict when it arose in particular

suits? The first principle was that of avirodha: the court must

try to resolve any apparent conflict between the two. (This is

called the principle of harmonious construction today. But if

the conflict could not be resolved, the authority of the dharma-

shastra was to be preferred. Bhavishya purana provides :

"whens mriti and artha-shastra are inconsistent, the provision

in the artha-shastra is superseded (by smriti); but if two smritis,

or two provision in the same smriti are in conflict, whichever is

in accordance with equity is to be preferred." Narada smriti lays

down a similar rule of interpretation according to reason in case

of conflict between two texts of the smritis. But while

interpreting the written text of the law, the court was to bear in

mind that its fundamental duty was to do justice and not to

follow the letter of the law. Brihaspati enjoined: " The court

should not give its decision by merely following the letter of the

shastra for if the decision is completely devoid of reasoning, the

result is injustice (dharma-hani)." Brihastpati further says that

the court should decide according to the customs and usages of

14

the country even if they are in conflict with the letter of the law;

and he gives several remarkable illustrations which incidentally

throw a flood of light on contemporary social conditions.

He points out that the maternal uncle’s daughter is

accepted in marriage by brahmanas of the south; in Madhya

desha (Central India), brahmanas become hired labourers and

craftmen and eat cow’s flesh; eastern brahmanas eat fish and

their women are addicted to drinking and can be touched by

men even when in their monthly courses. On account of the

acts specified these communities, in their respective countries,

should not be liable to undergo penance r incur judicial

punishment.

Changing customs: Changing laws

In view of the vital part played by custom (achara,

sadachara, charitra) in society, the State was required to

maintain an authenticated record of the customs observed in

the various parts of the country. Katyayana enjoins: "Whatever

custom is proved to be followed in any particular region, it

should be duly recorded as established (dharya) in a record

stamped with the seal of the Sovereign." But even an

established custom could be formally "disestablished" if in

course of time it became inequitable. In fact, it was the duty of

the Sovereign to remove from time to time the dead or rotten

branches of custom. Katyanana enjoined: "When the Soverign

is satisfied that a particular custom is contrary to equity

(nyayatah) in the same way-that is in the way it was

established- it should be annulled by a formal decision of the

Sovereign." This remarkable provision indicates how highly

developed was the judicial and legal system of ancient India.

15

The state was required to keep an authenticated record of all

valid customs prevailing in the different regions of the realm.

Very often the decision in a suit depended on proof of the

existence of a custom. Narada says, "The basis of a judicial

decision (vyavahara) may be: (i) Dharma-shastra, (ii) (previous)

judicial decisions (vyavahara) or custom (charitra) or the decrees

of the Soverign. The authority of these four is in the reverse

order, each preceding one being superseded by the one following

it. The artha-shastra contains an indentical provision.

Evolutionary concept of law

The significance of these provisions can not be

overemphasized. By gearing law to changing customs Indian

jurisprudence gave the concept of law a secular content.

Moreover, it developed the evolutionary concept of law and

rejected the concept of an absolute, eternal, never-chaning law.

Both Manu and Parashara say: "The laws of kritayuga are

different from those of treat and dwapara, and the laws of kali

yuga are different from those of all the previous; ages- the laws

of each age being according to the distinctive character of each

age (yuga roopanusaratah)."

Mode of Proof (Law of Evidence)

The law of evidence (the mode of proof) is an index of the

quality of a judicial system. In this respect, the Indian judicial

system was in advance of any other system of antiquity. In

ancient societies proof by supernatural devices, such as trial by

ordeal, was quite common. In England it prevailed till the very

close of the middle ages. But our judicial system prohibited

resort to supernatural devices, if oral or documentary evidence

16

was available.

Discovery of truth is real test

The real test of any judicial system is that it should

enable the law courts to discover the truth, and that of ancient

India stands high under this test. "In disputes the Court has to

ascertain what is true and what is false from the witnesses,"

enjoins Gautam. All available evidence indicates that in ancient

India bearing false witness was viewed with great abhorrence.5

All the foreign travelers from Megasthenes in the 3rd century B.

C. to Huan Tsiang in the 7th century A. D. Testified that

truthfulness was practiced by Indians in their wordly relations.

"Truth they hold in high esteem", wrote Megasthenes.6

The procedure and atmosphere of the Courts discouraged

falsehood. The oath was administered by the judge himself, and

not by a peon as today. While giving the oath the judges were

required to address the witness extolling truthfulness as a

virtue and condemning perjury as a horrible sin. Brihaspati

says, "Judges who are well-versed in the dharmashastra should

address the witness in words praising truth and driving away

falsehood (from his mind)". The judges’ address to the witness

did not consist of set words but a moral exhortation intended to

put the fear of God in him. All the texts are unanimous on this

point.

Fa Hien

and Huan Tsiang (who visited India during the reign of Harsha)

recorded similar observations. A virtue practiced for a thousand

year became a tradition.

7

5 A.L. Basham: The Wonder that was India, p.116. 6 Ancient India as described by Magasthenes and Arian, by Mc. Rindle, p.6. 7 Manu, VIII, 79-87; Narada I, 200-228, Katyayana, 388-390; Yajnaa-II, 273-74.

According to Narada, "The judges should inspire awe in

the witness by citing moral precepts which should uphold the

17

majesty of truth and condemn falsehood". All the smirtis were

unanimous in holding that perjury before a law court was a

heinous sin as well as a serious crime.8

8 Brihaspati V, 34; Manu VIII, 80-87; Yajna II, 73-74; Narada I, 220-228; Baudh I, 13,14,19.

There were other

provisions, calculated to reduce the changes of false evidence

being given. Katyayana enjoined, with much common sense that

there should be no delay in examining witnesses- obviously

because delay dims the memory and stimulates imagination.

"The Sovereign should not grant any delay in the deposition of

witnesses; for delay leads to great evil and results in witnesses

turning away from the law.”

Administrative Courts

An important feature of the judicial system of ancient

India were the Special Courts of criminal jurisdiction called the

Kantakasodhana Courts. The artha-shastra says, "Three

commissioners (pradeshtarah) or three ministers shall deal with

measures to suppress disturbance to peace (kantakasodhanam

kuryuh). According to the artha-shastra these courts took

cognizance not only of offences against the States but also

violations of the law by officials in the discharge of their official

duties. Thus if traders used false weights or sold adulterated

good, or charged excessive prices, if the labourer in the factory

was given less than a fair wage or did not do its work properly,

the Kantakasodhana courts intervened to punish the culprits.

Officers charged with misconduct, persons accused of theft,

dacoity and sex offences had to appear before the same court.

These Courts had all the characteristics of administrative

courts. The existence of an Administrative Code is indicated in

the Fourth part of the Artha-shastra.

18

Administrative Code

The State in ancient India had a public sector of huge

dimensions engaged in commerce and industry. The modern

capitalist notion that there should be no industries run by the

State would have appeared idotic to our ancients. Under the

Mauryan Empire there was a State mercantile marine, a state

textile industry, a state mining industry, and a state trading

department in charge respectively of a Superintendent-General

of Shipping (navadhyaksha). Textiles (Sootradhyaksha), mining

(akaradhyaksha), and commerce. The regulation of each state

industry was under its own rules and all the rules were

compiled and classified in the artha-shastra and may be

regarded as an Administrative Code. I shall give a few

illustrations.

The artha-shastra provides a complete Administrative

Code prescribing rule of maritime and riparian navigation. It

enjoined that the State should have a Superintendent-General

of Navigation whose duties are defined thus: "The

Superintendent of ships shall examine the accounts relating to

navigation not only on the oceans and mouths of the rivers, but

also on lakes, natural or artificial, and in the vicinity of

Sthaniya and other fortified cities.” The chapter contains a

provision for the ships to have adequate few for ships. There

were strict regulations to ensure the safety of vessels: "For

navigation on large rivers which cannot be forded (atarya) even

during winter and summer season, there shall be a service of

large boats (mahanavo), with a captain (shasaka), pilot

(niyamaka), a crew to hold the sickle and the ropes, and to clear

the boat of water.”

19

The artha-shastra also contains regulations indicating

that the state mercantile marine operated on the high seas and

it provided that "passengers arriving in port on the royal ships

shall pay their passage money (yatra-vetanam)." The rates were

to be fixed by the Superintendent-General. Incidentally, the

existence of this code proves beyond doubt that the people of

India were a sea-faring people with extensive trade relations

with foreign countries.

Similarly, the manufacture of textiles and cotton yarn,

which was a huge industry exporting textiles to foreign

countries had a public as well as a private sector. The public

sector was under a Superintendent-General of Textiles

(Sootradhyaksha). He had a large organization under him. The

artha-shastra prescribed the duties of the Sootradhyaksha and

the other officials working under him. It enjoins: "The

Superintendent-Genral of Weaving shall employ qualified

persons to manufacture treads (sutra), coats (varma), clothes

(vastra), and ropes.” One of his duties was to give employment

to women in their own homes. Cotton was distributed among

them and spun into tread and either collected by the

department or delivered by the women themselves. But the

artha-shastra contains strict regulation against the taking of

liberties with such women or withholding their wages. It

prescribed: "If the official of the Superintendent stares at the

face of such woman or tries to engage her in conversation about

matters other than her work (in other words, makes what an

American would call a pass at her) he will be punished as if he

is guilty of a first assault. "Delay in payment of wages shall be

likewise punishable. Another regulation made it a punishable

offence to show any undue favour to a women worker. It

provided; "If an official pays wages to a woman for no work

20

done, he will be punished.”

Collection of taxes and import duties

There was a code prescribing rules governing the

collection of taxes and import duties. This development was in

charge of the Superintendent General of taxes (Shulkadhyaksh).

The merchants at the customs were liable to declare their

merchandise which had to bear a seal when imported. Penalties

were prescribed for making a false declaration. One rule

enjoined: "If the merchandise bears no seal, their duty shall be

doubled. But in case of counterfeit seal, the merchant was liable

to pay a penalty amounting to eight times the normal duty. If

the seal was torn, the merchant was liable to be detained in a

lock-up reserved loiterers.

The Administrative Code in the 4th Section of the artha-

shastra contains detailed regulations for the control of the other

departments of the state. These regulations were not enforced

by the ordinary courts but by Commissioners (Pradeshtarah)

who functioned as Kantak Shodhana courts.

The trial was always in public and always by several

judges collectively. Cases were heard in their serial order except

in case of urgency. Delay in the disposal of cases was

condemned by all authorities and judges who were guilty of

such delay were liable to be punished. The Sovereign was not to

interfere with the judiciary but on the contrary the latter was

under a duty to interfere in case of a wrong (judicial) decision by

the king. The Judges were to be impartial ; during the pendency

of the suit they were forbidden to have any private talks or

relations with the parties. If a judge was guilty of partiality, or

harassment, or deliberately violated the prescribed procedure,

21

he was liable to be punished. Corruption was the most heinous

offence in a judge and a corrupt judge was banished from the

realm and forfeited all his property. The procedure for suits was

prescribed by law, and every suit was initiated by a complaint or

plaint filed by the aggrieved party who prayed for the redress of

a legal wrong. Citizens were strictly forbidden to instigate or

finance or file complaints in which they were not interested, and

champerty was a punishable offence. I cannot do better than

quote the verdict of a very recent English writer: "In some

respects the judicial system of ancient India was theoretically in

advance of our own today."

Judicial System in Medieval India

After the disintegration of the Harsha empire a veil of

obscurity descends on the history of India which does not lift till

the Muslim invasion. The country was divided once more into

small kingdoms. But this did not result in any great change in

the judicial system which had taken roots during the preceding

thousands of years. The standards and ideals of justice were

maintained in each kingdom, in spite of political divisions, the

unity of civilization was preserved, and the fundamental

principles of law and procedure were applied throughout the

country. This I is indicated by the fact that the great

commentaries on law like Mitakshara and Shukarneeti Sar were

written during this period and enjoyed an all-India authority.

But the establishment of the Muslim rule in India opened a new

chapter in our judicial history. The Muslim conquerors brought

with them a new religion, a new civilization, and a new social

system. This could not but have a profound effect on the judicial

system.

22

The ideal of justice under Islam was one of the highest in

the Middle ages. The Prophet himself set the standards. He said

in the quran, "Justice is the balance of God upon earth in which

things when weighed are not by a particle less or more. And He

appointed the balance that he should not transgress in respect

to the balance; wherefore observe a just weight and diminish

not the balance". He is further reported to have said that to God

a moment spent in the dispensation of justice is better than the

devotion of the man who keeps fast every day and says prayer

every night for 60 years.9

This high tradition reached its zenith under the first four

Caliphs. The first Qadi was appointed by the Caliph Umar who

enunciated the principle that the law was supreme and that the

judge must never be subservient to the ruler. It is rported of him

that he had once a personal law suit against a Jewish subject,

and both of them appeared before the Qadi who, on seeing the

Caliph, rose in his seat out of deference. "Umar considered this

to be such an unpardonable weakness on his part that he

dimissed him from office."

Thus the administration of justice was

regarded by the Muslim kings as a religious duty.

10 The Muslim kings in India bought

with them these high ideals. It is reported by Badaoni that

during the reign of Sultan Muhammad Tughlaq the Qadi

dimissed a libel suit filed by the Kind himself against

Shaikhzada Jami, but no harm was done to him. (This however

did not prevent the Sultan from executing the defendant

without a trial).11

9 Fakhr-ud-din Mubarak Shah, Edited by D.Ross, p.12. 10 Abdul Rahim : The Principles of the Muhammedan Jurisprudence, page 21. 11 Badaoni : Muntakhab-ut-Tawarikh, quoted by M.B.Ahmad in the administration of Justice in the

Medieval India, p. 278.

Individual Sultans had very high ideals of

justice. According to Barani, Balban regarded justice as the

keystone of sovereignty "wherein lay the strength of the

23

sovereign to wipe out the oppression".12

As a modern writer says, "The medieval State in India as

elsewhere throughout its existence had all the disadvantages of

an autocracy-everything was temporary, personal, and had no

basic strength. The personal factor in the administration had

become so pronounced that a slight deviation of the head from

the path of duty, produced concomitant variations in the whole

‘trunk’. If the King was drunk ‘his Magistrates were seen drunk

in public’.

But unfortunately the

administration of justice under the Sultans worked fitfully. The

reason was that the outstanding feature of the entire Sultanate

period was confusion and chaos. No Sultan felt secure for a long

time. One dynasty was replaced by another within a

comparatively short period, and the manner of replacement was

violent. Consequently the quality of justice depended very much

on the personality of the sovereign.

13 Justice in not possible without security, and the

Sultans of India never felt secure. Consequently, the democratic

ideal of government preached by Islam was obscure in India.14

Under the Moghal Empire the country had an efficient

system of government with the result that the system of justice

took shape. The unit of judicial administration was Qazi-an

office which was borrowed from the Caliphate. Every provincial

capital had its Qazi and at the head of the judicial

During the Sultanate, Islamic standards of Justice did not take

root in India as an established tradition, unlike the judicial

traditions of ancient India which had struck deep roots in the

course of several thousand years and could not be uprooted by

political divisions.

12 Brani : Tarikh Firuz Shahi, p. 77. 13 The administration of Justice in Medieval India, by M.B. Amhad, p. 272, quoting Briggs,. Rise of the

Muhammendan Power in India, Volume I, p.272. 14 Ibid., p.273.

24

administration was the Supreme Qazi of the empire (Qazi-ul-

quzat). Moreover, every town and every village large enough to

be classed as a Qasba had its own Qazi. In theory, a Qazi had to

be "a Muslim scholor of blameless life, thoroughly conversant

with the prescriptions of the sacred law.15

According to the greatest historian of the Mughal Empire,

"the main defect of the Department of Law and Justice was that

there was no system, no organization of the law courts in a

regular gradation from the highest to the lowest, nor any proper

distribution of courts in proportion to the area to be served by

them. The bulk fo the litigation in the country (excluding those

decided by caste, elders or village Panchayats mostly for the

Hindus) naturally came up before the courts of Qazis or

Sadars."

16 This view is not accepted by other writers.17

"Be Just, be honest, be impartial. Hold trials in the

presence of the parties and at the court-house and the seat of

Government (muhakuma). Do not accept presents from

thepeople of the place where you serve, nor attend

entertainments given by anybody and everybody. Write your

decrees, sale-deeds, mortgage bonds and other legal documents

very carefully, so that learned men may not pick holes in them

and bring you to shame. Know poverty (faqr) to be your glory

(fakhr)."

On the appointment of a Qazi, he was charged by the

Imperial Diwan in the following words:

18

15 Encyclopaedia of Islam, Vol. II, page 606 16 Mughal Administration, by Sir Jadunath Sarkar, page 108. 17 Administration of Justice in Medieval India : M.B.Ahmad. 18 Manual of Officers Duties, a Persian Mss. Quoted by Sir Jadunath Sircar, p. 27.

But due to lack of supervision and absence of good

tradition, these noble ideals werenot observed. According to

Sircar, "all the Qazis of the Mughal period, with a few

25

honourable exceptions, were notorious for taking bribes. The

Emperor was the fountain source of justice. He held his court of

justice every Wednesday and decided a few cases selected

personally by him but he functioned not as an original court but

as the court of highest appeal. There is overwhelming evidence

that all the Emperors from Akbar to Aurangzeb took their

judicial function seriously and discharged their duties Jahangir

made a great show of it and his Golden Chain has become

famous in history. The weakness of Indo-Mohammedan Law,

according to Jadunath Sircar, was that all its three sources

were outside India.

"No Indian Emperor’s or Qazi’s decisions was ever

considered authoritative enough to lay down a legal principle to

elucidate any obscurity in the Quran, or syupplement the

Quranic law by following the line of its obvious intention in

respect of cases not explicitly provided for by it. Hence, it

became necessary for Indian Qazis to have at their slbow a

digest of Islamic law and precedent compiled from the accepted

Arabic writer. Muslim law in India was, therefore, incapable of

growth and change, except so far as it reflected changes of

juristic thought in Arabia or Egypt."19

After the conquest of Bengal by the British the process of

replacement of the Mughal system of justice by the British

After the death of

Aurangzeb, the Mughal Empire collapsed within two

generations. The provincial Governors and Faujdars arrogated

to themselves the status of sovereigns and awarded punishment

for criminal offences in their own names. A relic of this

usurpation of the Emperors’ power is the name Faujdari given

to criminal trials even today.

19 Manual of Officers Duties, a Persian Mss. Quoted by Sir Jadunath Sircar, p. 115. The Indian legal

system today suffers from a similar weakness for it s theoretical foundations are outside India.

26

began. But it took a long time. In fact, The Sadre Diwani Adalat

continued to function till it was replaced by the High Courts.

The Mughal judicial system has left its imprint on the

present system, and a good part of our legal terminology is

borrowed from it. Our civil courts of first instance and called

Munsifs, the plaintiff and the defendant are termed Muddai and

Muddaliya and scores of other legal terms remind us of the

great days of the Mughal Empire.

Evolution of Judicial System:

Since the very inception of human being, it was noticed

that the mighty and superiors try to dominate the weak and

downtrodden. In the Hindu scriptures the concept is known as

‘Matsaya Nyaya’. On the other hand, the man never wanted to

lead a chaotic life. Obviously, he opposed the concept of

matsaya nyaya. Hence, he initially organised himself in family,

groups and associations so he may lead a peaceful life. Falling

in this attempt he created the ‘State’ with the hope that same

will protect him from all the deviant forces and provide

opportunities for development. Whereas, army and police

became the instrument for protecting the mankind, from

external aggression and internal disturbances, the judiciary was

convinced as an organ which may ensure a just life to him. It is

perhaps for this reason that judiciary has been considered the

most important pillar of the state system.

History speaks that the state system including the

judiciary has remained different at different times and ages both

in oriental and occidental world. In this context at very outset, it

seems relevant to appraise ourselves with different conceptual

orientations prevalent in the eastern and western state system.

27

In ancient Hindu scriptures the justice has been

considered as an instrument to punish the wrong doers who

acted against the established norms of the society.20

This Hindu concept of justice continues even today in one

form or the other. The occidental view of justice can well be

understood through Greek, Epicurean, Roman and Christian

doctrines; For instance, in initial Greek Scriptures, the justice

has been considered as maintenance of harmony in the life. It

was the duty of the sovereign to create such legislation so as to

establish the harmony. This idea of justice has perfectly been

analysed by Plato in his immortal work ‘Republic’. He considers

justice as that which holds the society together in a harmonious

union. Each of whom has found life, work in accordance with

natural fitness of his training.

21

The Greek City States regulated themselves in this ambit

of justice. However, with the fall of Greek States and coming

into existence of Epicureans, the idea of justice underwent a

change, to quote Sabine again there never was an absolute

justice but only a convention made in mutual intercourse in

whatever region from time to time providing against the

inflicting or suffering of form.

Thus to Greek thinkers justice

is that which keeps individuals in harmony with each other. In

other words, giving to every man his due is justice, for what is

due to him is that he should be treated in the light of his

capacity and his training while what is due for him is the honest

performance of those tasks which the place accorded to him

requires.

20 This view has been substantiated by manu, sukracharys, yajnawalkanyal in Mahabharata

also.a. Sukracharya 1, 14 and Narad Parinka 23, b. Kautilya Arthshastra 1, 19, c. Manu 8, 128, d. Maha Shanti 69, 32, e. Yajnawalkaya 1, 359-60

21 George H. Sabine, A History of Political Theory, George G. Herper and Company, London, 1959, P. 54

28

The argument against intrinsic values is the variety of

moral values and practices that have been prevalent at different

times and places. An argument which was originally exploited

by certain of the sophists and which had been noticed (and in

intention refuted) by Plato in the discussion of justice in

‘Republic’. At a later date, it was vastly elaborated by the cynics

against the stoics.22

The vital point in the argument is the view that good is a

feeling privately enjoyed and that social arrangement are

justified. If at all, only as devices to secure the largest possible

private good.

23

States, then, are formed solely for the sake of obtaining

security, especially against the depredations of other man. All

men are essentially selfish and seek only their own good. But in

this way the good of everyone is jeopardized by the equally

selfish action of all other men. Accordingly, men enter into a

tacit agreement with each other, neither to inflict nor to suffer

harm. The best life, no doubt, would consist in doing injustice

without suffering it, and the worst would be to suffer injustice

without being able to do it, but since the first is impossible and

the second intolerable, men adopt as a working compromise the

plan of respecting the right of others for the sake of obtaining an

equal for forbearance from them. In this way the State and the

law came into existence as a contract to facilitate intercourse

between men. If no such contract exists, there is no such

thinking as Justice, Law and government exist for the sake of

mutual security, and they are effective solely because the

penalties of the law make injustice improfitable. The wise man

22 Golden Maxism 23, R.O. Hicks, Stories and Epicurean (1910), P. 177 23 Carneadesin argument is reviewed at length by Cicero, Republic, Bk. III, Pp. 5-20

29

may act justly because the fruits of injustice are not worth the

risk of detection and punishment. Morality is identical with

expedience. The concept of justice changed a little with the

changing times. For women, justice was a fixed and abiding

disposition to give every man his right. The percepts of the law

were to live honourably, to enjoy, to move and to give every man

his own.

Romans wanted to realize this justice in life. However,

they failed to achieve the same. After coming into being of

Christian system once again the concept of justice underwant a

change. The great propounders of Christian theology Saint

Augustine considered that justice is to act according to the

wishes of the God. According to him State can render to every

man his own so long as the very Christian withholds from God.

No State can be just unless it is also Christian, and a

Government considered apart from its relation to the Church

would be devoid of justice. In other words whatever was

enshrined in the religious testament of the Christianity was the

basis for the regulation of human life. Anything committed

against such tenets was considered by these testament as

injustice that is to say, the Christianity became the sole

directing star of the justice during the period.24

In the later part of the Christianity the concept of justice

got widened, and it could detach itself from the religion. A

glimpse of which can be had in the ideology of Hindus who

considered justice as the possession of property, its transfer by

consent. If we compare both the occidental and oriental views of

justice, it becomes almost apparent that the concept of justice

24 V.O. Kulshrestha; Landmarks in Indian Legal and Constitutional History. Eastern Book

Co., New Delhi – January 1969. P. 17

30

mainly stressed upon two points. Viz.

1- Such environment must be protected and preserved

as is necessary for the overall development of the

mankind and,

2- Those who disturb such environment should be

punished.

In this perspective, it becomes the duty of the governing

system to provide opportunities to the people and to create such

an institutional framework which may check any disturbance

whatsoever which obstructs the peaceful life of the mankind.

From the point of view police and judiciary have been created

world over. The concern of police has remained to catch hold of

people who try to challenge the authority and break the laws,

rules and regulations and customs and conventions. It has been

the considered duty of the judiciary to punish the offenders

according to the established laws in any given time. As we have

noted, during the days of Christianity, justice was being

imparted according to the tenets of religion and same was the

case during the medieval centuries in the Middle East where

dictate of Mohammedanism was reigning supreme. As we are

more concerned with the ancient medieval and colonial judicial

administration of our country, it seems relevant to look into its

organizational and functional structure of the same.

To begin with, let us have a look into the organizational

and functional structure of judicial system in ancient days

which is well described in Kautilya’s Arthshastra and scriptures

penned down by the sages like Manu, Shukracharya Brihaspati,

Yajnavalkya and contained in the epics like Mahabharata. These

scriptures consider the king as the fountain head of justice and

31

depict that it is the prime duty of the king to punish the

defaulters and if he fails to do so, he is punished by the God.

Similarly, out of eight prominent duties of the king

Sukracharaya considers suppression of the bad elements by the

king as the paramount function of the sovereign. The things had

been corroborated by Yajnavalkya and in the Mahabharat. How

the justice used to be imparted is a different arrangement.

Organizationally, the king was regarded as the fountain head of

justice followed by the court of chief justice known as

Vivkadhakhyas working at territorial division like Sthan,

Dronmukha, Kharwatic and lastly at the village level known as

Sabha. This organizational structure continued until the

Mughal became the political reality in India.25

To be more specific the king’s foremost duty was to

protect his subject. He was considered as the embodiment of

‘dharma’ and entrusted with the supreme authority of the

administration of justice in his kingdom, the king’s court was

the highest court of appeal as well as an original court in cases

of vital importance to the State.

It may be noted

that the concept of jury, lawyers, witnesses etc. may be found in

operation in the ancient times.

26

Next to king was the court of Chief justice (Pradvivaka).

Apart from the chief justice, the court consisted of a board of

judges preferably Brahmin. Sometimes some of these judges

In king’s court, the king advised by learned Brahmins, the

Chief Justice and other judges, ministers, elders and

representatives of trade communities.

25 Narendra Singh – Juristic concept of Ancient Indian Polity. Delhi, 1980, P. 122 26 P.V. Kane, History of Dharmasastra, Vol III, Ch. XI, P. 56

32

constituted separate tribunal having specified territorial

jurisdiction.27

The judges of the Dharmadhikaris were the chief official

of the high court of justice.

28

Kautilya mentions two kinds of judges Dharmasthas and

Pradestas. These judges are described as Amatyas. The

Dharmastha used to preside over the court, which were

established in the frontier towns, Janapada Sandhi and in the

main cities known as Sangrahanas (units of four hundred

villages).

In this connection the

Dharmasthan, Amatyas and Pradestas are mentioned. The

Dharmasthan from the very nature of term was the man versed

in the law of the land and unimpeachable character. The judges,

who adjudicate the cases and disposed off justice on the nature

of the evidence, tendered by a panel of counsel, who went by the

name of Amatyas.

The Pradestas were commissioners who occupied some

that lower status, and may be considered equal to modern day’s

district judges and district magistrates.

29 The Dharmastha judges used to try the cases

relating to the law of marriage, violation of women’s property,

marital duty, maintenance, cruelty, disaffection, leaving home

and eloping with any other man, short or prolonged absence

from the husband’s home, inheritance, none payment of debts

and deposits, rules and regulations about slaves and labours,

sale without ownership, verbal injury, physical injury, gambling,

betting and other matters.30

27 Bulher, Sacred Laws of the Aryas, Vol II, Part one, XI-22, (sacred books of the east), P. 93 28 Kautilayas Arthasastra, Book IV, Ch. X 29 D.K. Ganguly, Aspects of Ancient Indian Administrations, 1929, P. 235 30 Arun K. Sinha – Provincial Administration in Ancient India, P. 193

33

Juries were must for the courts and known as Sakhya

and they used to be Brahmins.31

The entire judicial process was based on Pratigya, Uttar,

Kriya and Nirnaya. The client or the plaintiff used to proceed the

case on a pledge. Subsequently the plaintiff asked to answer the

same. After that allegations are made and responses are given it

was necessary to produce witness and oral evidences in the

form of people, papers and documents. It was binding upon the

witnesses to speak truth before the court. In absence of

evidence and witness ordeals such as water ordeal, fire ordeals

Apart from this structure,

yajnavalkya mentions about some popular courts were known

as Puj, Sreni and Kula. Generally these courts used to be

constituted by the people of some cast or families, and the

elders of these families or castes used to settle the issues. The

courts used to follow a specific procedure.

The court proceedings were actually started by the

Sodhanakya by calling the parties. The judge accompanied by

the Sresthin, Kayastha and others conducted the proceeding in

the Sodhanka. Once they are seated, the judges ordered a seat.

After having blessings from the old persons, the judges used to

permit the plaintiff to state his case and asked the Kayastha to

write down the statement which was the first record on the floor

making it easy for correction. While the case was being tried,

the judge could ask the police officer to make an enquiry and

investigate any point of issue. Horses were kept ready in the

court, they could be sent whenever required. As a principle no

new cases were taken up till the pending cases were disposed

off.

31 A.S. Aetekar – States and Government in Ancient India, Motilal Benarsidas, Delhi, P. 249

34

etc. were also applied to expect the truth. In the process of Kriya

the plaintiff used to place logic before the court of law in his

favour. It may be noted that during the Guptas, the institution

of lawyers emerged. Generally, such lawyers were Brahmins.32

We have already established that there used to be the

highest court kings, provincial courts of Pradeshta or

Dharmadhyaksha of district level and popular and

miscellaneous court such as sabha at village level and so on. In

each court as already mentioned, dharmasthan that is to say

judges, used to be appointed by the sovereign. This structure

remained valid in the medieval Hindu politics also. It may be

said that in ancient India a perfect judicial system was in

operation at district level. There are references to the specific

place locating court known as dharmasthan in ancient

scriptures.

After going through the pros and cons of the cases the judges

used to deliver judgment and based on the judgment,

punishment was awarded.

The country during ancient time was divided into village,

sangrahan, dronmukh, sthan, vishya and Pradesh. Vishya can

be compared with the district of present time and sthan as the

subdivision consisting of eight divisions. Dronmukh was a unit

of one hundred villages whereas kharmatic of two hundred

villages and sangrahan of ten villages.

33

This judicial procedure continued with the little change

here or there during Kushan, Gupta, Vardhana and Rajput

period. However, a little change occurred in the judicial

32 K.K. Mishra, Police Administration in Ancient India, Mittal Publication, New Delhi, 1987,

P. 48 33 Samashastri – Kautilya’s Arthsastra Mysore Printing & Publication House, 1967, P. 56

35

peocedure during Sultanate and Mughal period. The Turks and

Mughals were an invading clan. Hence, their rule was

centralized and concentrated in the land of Sultan. This was

lesser degree of decentralization. The sultan was considered, the

fountain of justice, and to assist him there was chief justice

known a Kazi. The same structure was followed at provincial

level where Kazi at pargana used to operate. The Turks had a

procedure for delivering the judgment based on the Quoranic

principles. Generally, judges used to consider plaintiff and

defendant’s views, witness and evidences and decide the cases

according to Quoranic tenets. However, in the political cases,

this was not followed. The crux of this short resume is that

during Sultanate’s period, there had been a judicial system at

district level. During Mughal administration at district level the

Kazies used to be appointed with the consultation of Kazi-Ul-

Kuzzat. An officer with the name of Mufti used to be appointed

to assist the Kazi in explaining laws and tenets of religions.

Maratha and Rajput states, by and large, followed a judicial

system having a blend of Hindu and Muslim administration.34

To begin with the Britishers established a company at

Madras in 1939. The British man named Francis-day built the

Once again it may be mentioned that throughout the ancient

and medieval history of our country a set pattern of judicial

administration was being followed. However, when Britishers

became a political reality in India, they not only demolished the

practices followed here, but also established their own

institutions and processes. We, in independent India have

borrowed by the large, the same institutions followed by the

Britishers.

34 V.D. Kulshrestha, Land Marks in Indian Legal and Constitutional History Eastern Book

Co., New Delhi, Jan 1969

36

Fort Saint George in 1640. This was known as ‘White town’

while the nearly villages as ‘Black town.’ The agent of the fort

was authorized to decide both civil and criminal cases of

English people. He had no right to administer justice to the

natives. Later, the Hindu king granted the right to administer

justice to the English people in 1644 and thus Choultry court

came into existence. In other words while in white town the

agent’s court was in operation, the black town was under the

jurisdiction of choultry courts. With a little change the system

continued until 1680. In 1683 company established court of

admiralty in India to try unauthorized trade.35

With the down of the eighteenth century, there was four

different courts, working in Madras-First, the Mayor’s court as

the courts of record, secondly the court of admiralty with the

judges, advocates as president to try pirates, thirdly, the old

choultry court whose presiding officer was called the chief

justice of the choultry, and finally, the court of the President or

Governor-in council, which used to hear appeals against the

decisions of the court of admiralty as well as against the

Mayor’s court. These courts continued upto 1726 when the

charter of George I introduced uniform set of court in all the

By 1689 a general court became a reality for modern town

under the charge of Sir John Biggs. Similarly, until 1684 the

court of admiralty continued. However, later on this cease to

function and Mayor’s court took over. Mayor’s court actually

came into existence in December 1687 when a corporation was

established in Madras. Its function was to try civil cases where

the value exceeds to three pagodas, (a gold coin) which was

equivalent to three rupees.

35 B.C. Gupta Krishan – A Century Completed’ A History of Madras Courts, P. 82

37

three presidency towns.

Bombay and Bengal region by and large followed the same

pattern of the court system until the first part of the eighteenth

century when Supreme Court and High Courts came into

existence at Calcutta, Bombay and Madras. During the gap

period, as stated earlier, the Mughal system of justice persisted

in which civil court of Kanungoes, criminal courts of kazies and

mohrtsib continued at ten different levels.

However, Britishers could not continue with the system

and therefore in the year 1772 they drew a plan and established

two courts. One by the name of Muffasil Diwani Adalat for the

civil cases and other Fauzdari Adalat. Somehow or the other,

this system still persists in our country. In 1793 the three

courts came into existence. After 1793 Sir John Shore, Lord

Wellesley, Lord Cornwallis, Lord Minto, Lord Hastings, Lord

Amherst, Lord Bentick etc. reformed the judicial system in the

colonial India. Later on, it got a shape vide Act of 1919 and

1935. When Lord Cornwallis came to India in 1786, he was

faced with into difficult tasks to simplify the complicated and

expensive machinery of administration of justice and to uproot

corruption from the company’s servants in administration.

Cornwallis reformed the whole system of civil and criminal

justice by a method of trial and order. In the judicial system he

introduced reforms in three installments in 1787, 1790 and

1793 respectively.

The Directors gave instruction to Lord Cornwallis to bring

simplicity, economy and purity into the system. The existing

separation of the revenue and judicial function was removed

38

and both the functions were united.36

In 1787 when Cornwallis introduced reform in the civil

and revenue courts, he purposely avoided introduction of any

major reform in the criminal courts. Cornwallis realized that the

prevailing system of the administration of criminal justice was

very defective and futile.

The existing thirty six

districts were reorganized and number of districts was reduced

to twenty three. Each district was under the charge of collector –

an Englishmen responsible for the collection of revenue decided

the cases relating to revenue. He was also to act as the judge in

the Diwani Adalat of the District and decided civil cases. The

collector was also entrusted with magisterial powers in his

district. Though the collector was given all these powers, he was

advised to keep his various functions separate from each other

so far as possible. The collector, in the capacity of a judge, was

to hold the Munsif Diwani Adalat. Apart from Civil cases, the

court was also required to decide cases and claims concerning

to succession and boundary disputes of Zamindars. He used to

be assisted by the native law officers. The order to assist the

collector in deciding civil cases an Indian Registrar was also

appointed in each district civil court to try petty cases upto Rs.

200.

37 In order to improve the law and order

situation and punish the criminals severely, Cornwallis

introduced vital reforms in 1790.38

36 W.H. Morley, The Administration of Justice in British India, Pp. 53-54 37 Aspinall, Corn Wallis in Bengal, Chs. II and III 38 In 1790 Lord Corn wallis sent a questionnaire to all magistrates inviting their comments on

the existing crimes and ways and means to suppress them and punish the criminals. In the light of these findings and his experience Cornwallis introduced reforms on 3rd Dec. 1790 in the law of crimes and the courts.

He realized that it will be

blunder to leave the administration of justice in the hands of

the natives. Cornwallis resolved to abolish the authority of

Nawab over criminal’s judicature. Muffasil Faujdari Adalat were

39

abolished. The whole Diwani area was divided into four

divisions of Calcutta, Murshidabad, Dacca and Patna. In each

division a criminal court was established which was called the

Court of Circuit. Each Court of Circuit was presided over by two

covenanted servants of the company, who were Englishmen.

They were assisted by the Kazi and Mufti. The court of circuit

was not a stationary court. Each circuit was divided into various

districts. In each district, the collector was to act as Magistrate.

The Magistrate was the lowest criminal court.

Cornwallis was convinced that the Mohammedan criminal

law was in many respects very defective. In 1870 Cornwallis

introduced certain very important reform in the Mohammedan

criminal law and all Nizamat Adalats were instruments to decide

cases according to the modified rules of Mohammedan law.

After gaining sufficient experience in Indian affairs from

1787 major changes in the civil and revenue setup Cornwallis

merged all the civil, criminal and revenue power in the authority

of the collector of the district. It was in 1793 that Cornwallis

realized that the time was ripe enough to introduce judicial

reform in Bengal, Bihar and Orissa.39

The courts of circuit which were proposed in 1793 were

united and thus four provincial courts of appeal and circuit

were established to deal with civil and criminal matters. The

provincial court of appeal and circuit were established at

Calcutta, Patna, Murshidabad and Dacca respectively. The

system continued until 1935, when according to Government of

Cornwallis attempted to

codify the existing law. It was an honest attempt to establish the

rule of law in India.

39 A set of 48 Regulations was prepared with the assistance of Sir George Barlow.

40

Indian Act 1935 some vital changes were brought in the judicial

system of India.

The Court of India Act, 1935 changed the structure of

Indian Government from ‘Unitary’ to that of the ‘Federal’ type.40

Every judge of the federal court of India was appointed by

his majesty and was to hold office till the age of sixty five years.

A judge was authorized to resign even before attaining the age of

sixty five years by addressing his resignation to his majesty. For

the appointment of a judge in the federal court, the act of 1935

provided that a person having anyone out of the three

qualifications will be qualified to be appointed as judge viz. – He

should have five years experience as judge of High Court or He

should be a barrister or an advocate of ten years standing or He

should be a leader in a High Court with ten years standing.

On Ist October 1937, the federal court was inaugurated at Delhi

and Governor General administered the oath of allegiance to

three judges of the court, namely, chief justice Sir Maurice

Gwyer, and two puisne judges Sir Shah Mohammad Sulaiman

and Mukund Ramra Jayakar. The federal court was a court of

record. It sat at Delhi and at such other places as the Chief

Justice of India may declare with the approval of the Governor

General of India, from time to time.

41

The judges of the Federal court were entitled to such

salaries and allowance and such rights in respect of leave and

pension, as were laid down by his majesty from time to time.

The federal court order in council of 1937 fixed the salary of

chief justice at Rs. 7,000/- a month and of other judges at Rs.

40 M. Ramaswamy, The Law of the Indian Constitution (1938), Pp. 85-98 41 The Government of India Act 1935, Sec 200(3), a, b, c, The Government of India Act 1935,

Sec 201

41

5,000/- a month.

Under the Government of India Act, the federal court was

given three kinds of jurisdiction (1) original (2) appellate and (3)

advisory.

Section 204 of the act of 1935 provided that the original

jurisdiction of the federal court was confined to disputes

between the units of the Dominion and any of the units. Section

204 laid down that jurisdiction shall not extend to dispute to

which a state is a party. (unless the dispute the federal court

exercised constitutional cases under the Act of 1935, its

appellate jurisdiction was extended to civil and criminal cases

from 1948.

Section 205 of the govt. of India Act 1935 made provision

for an appeal to the federal court from any judgment, decree or

final or final order, if a High Court certifies that the case

involves a substantial question of law as to the interpretation of

this Act or any order in council made thereunder before the day

of establishment of Dominion or any order made thereunder on

or after that date or as to the interpretation of the Indian

Independence Act 1947 of if any order made thereunder and it

shall be the duty of every High Court to consider in every case

whether or not any such question is involved and of its own

motion to give or to withhold a certificate accordingly, No appeal

was allowed to the federal courts in the absence of a certificate

from British Indian High Court or State High Court. The

certificate was a condition precedent to every appeal the federal

court was not given power to question the refusal which

prompted the refusal.42

42 Pashupati Bharti V. The Secretary of State for India-in-council, (1939) FCR 13, Lukhat

In the later years, the Federal court

42

criticized certain High Courts for granting certificates in

instances in which the federal court believed none should have

been issued. In J.K. Gas plant manufacturing W. (Rampur) Ltd.

and Other Vs The King Emperor,43 it was emphasized by the

Federal court that a certificate should not be issued unless the

appeal was a fact from “Judgment, decree or final order” i.e.

unless the decision of the High Court was a final determination

of the rights of the parties.44

In any such appeal as aforesaid it shall be competent for

S. 207 of the Act of 1935 empowered the Federal Court to

hear appeals from the High Court in accending States on

questions relating to constitutional matters.

The federal court Act 1947 provided that where an appeal

of federal court was competent and the nature of which was

allowed U/s 205, the federal court was empowered to consider

such appeals.

Since 1948 civil appeals, which formally went to the Privy

Council, were heard by the Federal court of India under the

federal court Act 1947, Section 3 of the Act of 1947 provided as

follows:

“As from the appointed day (i.e. Ist Feb 1948)”, An appeal

shall lie to the federal court from any judgment of a High Court

in civil cases without the special leave of the federal court in any

other cases. No direct appeal shall lie to his majesty – in council

either with or without special leave from any such judgment.

Ram V. Beharilal Misir (1939) FCR 121

43 FCR 141, S. Kuppuswami Rao V. The King (1947) FCR 180; Rex V. Abdul Majid (1949) 44 George H. Godbois Jr. ‘The Federal Court of India, 1937-50’ (1964) 6 JILI 262.

43

the Federal Court to consider any question of the nature as

mentioned in section of the Government in India Act, 1935.

The Federal Court Act, 1947 enlarged the jurisdiction of

the Federal Court in India in 1949, the system of appeals from

India to Privy Council was totally abolished. The Federal Court

of India as such followed the same principles (after 1948) as

were followed by the Privy Council in the exercise of its appellate

jurisdiction in criminal matters.

S. 213 of the Act of 1935 empowered the Federal Court to

give advisory opinion to the Governor-General. It provided, “If at

any time it appears to the Governor General that a question of

law has arisen or is likely to arise which is of, such a nature

and of such public importance that it is expedient to obtain the

opinion of the Federal Court for consideration, and the court

may after such hearing as they think fit report to the Governor-

General thereon.”

The Governor-General was not bound to accept the

opinion of the Federal Court which was given U/s 213. Another

important question for consideration is whether the Federal

court was bound to give a suitable answer to this question it is

necessary to go through the wording of S. 213 carefully. In this

section the word “may” is used. It meant that the court was not

bound to give its opinion in every reference made to it by the

Governor General. May can also be interpreted as “shall”. The

real intention of this provision appears to be that the Federal

court would not refuse except for good reasons.

Although the Act imposed no obligation on the Federal

Court to accede to every request of the Governor-General for its

opinion; Chief Justice Spens once remarked that “We should

44

always be unwilling to decline to accept a reference, except for

good reasons.”45

The Federal Court of India was called upon to give its

advisory opinion in four cases and in each case it gave its

opinion but not without expressing, on occasion, some

misgivings about both the expediency and utility of this

consultative role.

46

The Federal Court of India which was established under

the Government of India Act 1935 was initially given limited

jurisdiction. With the passion of the Indian Independence Act of

1947 a new chapter began, not only in the Political History of

India but also in the Judicial History of India. The first

significant step in the judicial sphere to bring autonomy was

taken in December 1947 when the Federal Court Act 1947

The Federal Court of India, as provided by S. 209 of the

Act of 1935 had no machinery of its own to execute its

judgment. It was sending back the case with its decision to the

respective High Court so that its order may be substituted for

the order of the High Court.

47

45 In Re Allocation of Lands and Buildings in a chief commissioner’s Province (1943), FCR

20-22 46 George H. Godbois Jr. “The Federal Court of India” (1964) 6JILI253; at P. 280 47 Known as Act I of 1948. Constitute Assembly of India (Legislative) Debates. III (1947)

December 11, 1947, Pp. 1708-1727

was passed. Its aim was to meet the growing national demand

and satisfy public opinion in India. In 1949 the Constituent

Assembly decided to give full judicial autonomy to the Indian

Judiciary. The draft of the new constitution of India was at its

final stage and the leaders wanted to give it a smooth

transaction. The assembly, therefore, passed the abolition of the

45

Privy Council Jurisdiction Act in 1949.48

During the period of 1937-50 two English Chief Justice,

The Act came into

existence on 10 October 1949 and it served all conventions of

the Indian courts with the Privy Council.

The Federal Court of India established in October was

suspended by the Supreme Court in 1950. During this short

period of a little more than 12 years, it left a permanent mark

on the legal History of India. It was not only the first

constitutional court but also the first all India court of extensive

jurisdiction.

49

and six Indian Justices sat on the Federal Bench Sir Shah

Sulaiman, Dr. M.R. Jaykar, S. Varadachari, Sir Mohd. Zafrulla

Khan, Sir Hri Lal, J. Khaniar50

The democratic polity provides to make each of the

and Sir Fazal Ali were the Six

Indian who got the distinction of being a judge of the Federal

Court of India.

From the above resume, it is evident that a considerable

effort was made by the British rulers in India to reform and

remedial the judiciary. Incidentally, we have borrowed almost

the same, judicial system what was enshrined in the Act of

1935. The only change was made that the Federal Court became

the Supreme Court of Independent India. Further with the

industrial development many more functional court came into

existence, yet the jurisdiction of apex court remains unaltered.

STRUCTURE OF INDIAN JUDICIARY

48 Act No. V of 1949 Published in the Gazette of India, Extra Ordinary, sep. 28, 1949 49 Sir Maurice Gooyer was the first Chief Justice of the federal court of India. Her retired in

1943 and Sir Patrick Spens was appointed Chief Justice of the federal court. 50 He was appointed the first Chief Justice of Supreme Court of India in 1950.

46

functionaries independent and supreme within its allotted

sphere and none is superior to the other. Justice has to be

administered through the courts and such administration

would relate to social, economic, political aspect of justice as

stipulated in the preamble of constitution and thus the judiciary

becomes the most prominent and outstanding wing of the

constitutional system for fulfilling the mandate of the

constitution. The judiciary has to take up positive and creative

function in securing socio-economic justice to the people.51

The constitution has generally provided for single

integrated system of courts of administer both Union and State

laws. At the apex of entire judicial system there exists Supreme

Court of India with a high court of each state or group of states

and under high courts there is a hierarchy of subordinate

courts. There is generally separation of judiciary from executive.

Panchayat courts also function in some states under various

names like Nyaya Panchayat, Panchayat Adlalat, Gram

Kachheri etc. to decide civil and criminal disputes of petty and

local nature. But they are not part of regular judicial system.

The constitutional task assigned to the judiciary is in no

way less then that of the other two functionaries viz. legislature

and executive. Indeed, it is the role of the judiciary to carry out

the constitutional message, and it is its responsibility to keep a

vigilant watch over the functioning of democracy in accordance

with the dictates, directives and imperative commands of the

constitution by checking excessive authority of other

constitutional functionaries beyond the kan of the constitution.

52

51 Chaudhary Pawan ‘Manmauji’ the Indian Journal of Public Administration Vol. XLV July-

Sept 1999, Indian Institute of Public Administration, Delhi, P. 304

52 There is only one judicial system under the constitution in India which includes subordinate courts, High Courts and Supreme Court – Central Law Minsiter, Pratiyogita Darpan, Oct

47

Our present day courts are made up of law made by the

legislature meaning that their constitution, function and

jurisdiction are also governed by such laws. For the purpose of

litigation courts have been divided into two categories as civil

courts and criminal courts. The provisions relating to the

establishment of criminal courts, from the lowest to the highest,

are contained in the code of criminal procedure while the code

of civil procedure provides for civil courts.

Criminal Courts- Hierarchy and Procedure:

It is generally presumed that the earlier form of

punishment for acts which can be called criminal was private

revenge. Retaliation for an inflicted injury was the personal

affair of the victims or their surviving kins which often led to

blood feuds between families, class or tribes. The resulting loss

of life and property sometimes became so great that societies

began, very slowly, to restrict private vengeance and to impose

trials and official penalties on offenders.

Religious leaders often played the role of moderators of

conflict and punishers of offences. The threat of divine revenge

ways used against criminals at a time when the fear of Gods

and supernatural forces was considerable, magic and religion

was found to be effective socio-political tools. Acts that could be

said to have adversely affected the well-being of the community

were considered affronts to the gods, and calamities and

disasters such as plague; earthquakes etc. were seen as

expression of divine anger.53

2005

53 Agarwala B.R., our judiciary, P. 64

If the punishment meted out to

wrongdoers was commensurate with the crime they had

committed it was thought to lessen the god’s fury. This was the

48

early origin of lex talionis (an eye for an eye and a tooth for a

tooth), this could also to be said to be the point at which

notations of crime and sin began to over lap.

In addition to this, there was also something called State

revenge. It was believed that anti personal or anti social

behaviour not only offended the gods, but also had its effect on

the political stability and the welfare of the social group. The

State acted independently of the temple in punishing the

wrongdoer, and it is this State revenge that it is the origin of

modern justice where the victim has to seek redress from the

proper authorities for the wrong that has been done to him/her.

India, produced the laws, or code of Manu, believed to

between 13th and 19th centuries B.C. The code specified that

part of the judge’s function was to probe the heart of the

accused and of expression, Cr. P.C. contains similar provision

today.54

Code of substantive criminal law i.e. I.P.C. 1860 was

enacted and the procedural law had been in the Criminal

Procedure Code (Cr. P.C.) 1898 (later on substituted by Cr. P.C.

1973). The I.P.C. deals specifically with various offences and

details what acts will constitute an offence and what will afford

and excuse or defence to a charge of an offence. Cr. P.C.

provides that all offences under the I.P.C. or under any other

Act shall be investigated, inquired into, tried and otherwise

Thus this was the first code of law to take account of

judicial psychology, something that can be found in our present

day penal code and the criminal courts.

Indian Penal Code (I.P.C.) 1860:

54 Section 280 Cr. P.C. provides demeanor of the accused to be recorded by the judge/

magistrate while recording his evidence, Bare Act code of criminal procedure, central law publication, 2004, p. 104

49

dealt with according to the provisions contained in the code. (S.

4 Cr. P.C.)55

o Foreign sovereigns’

Every person (including an alien who commits offence in

India) is made liable to punishment, without distinction of

caste, ranke or creed if the offence mentioned in the code or in

any Act has been committed in any part of India. However, there

is an exception with regard to: -

o Ambassadors and members of the diplomatic corps

enjoying immunity

o Alien enemies

o Foreign armies

o Warships and

o The President and the Governor under/Article 361 of

Indian Constitution

Apart from the offences mentioned in the Indian Penal

Code, there are other offences created by various Acts of

Parliament and the State Legislature. Unless special courts are

created by any Act, all offences, where imprisonment or fine is

the punishment, can be tried only by criminal courts provided

under Cr.P.C.; offences under FERA, FEMA, The Income Tax

Act, The Customer Act, The Central Excise and Salt Act, The

Food Adulteration Act, The Police Act, etc., are also tried by the

courts under Cr. P.C.

The Indian Penal Code lists various offences under

55 Section 4 Cr.P.C. Bare Act

50

various heads, for example: -

• Criminal Conspiracy;

• Offences against the State;

• Offences relating to Army, Navy and Air Force;

• Offences against Public Tranquility;

• Offences by or relating to Public Servants;

• Offences relating to elections;

• False evidence and offences against public justice;

• Offences relating to coins and Government stamps;

• Offences relating to weight and measures;

• Offences relating to religion;

• Offences relating to and affecting the human body;

• Offences against property;

• Offences relating to documents and to property

matters;

• Offences relating to breach of contract of service;

• Offences relating to marriage;

• Cruelty by husband or relatives of husband;

• Defamation;

• Criminal intimidation, insult and annoyance; etc.

51

The Indian Penal code also provided the types of

punishment which the various courts can award: -

• Death;

• Imprisonment for various periods up to life imprisonment.

Imprisonment can be of two kinds: -

1. Rigorous, i.e. with hard labour;

2. Simple.

i. Forfeiture of property;

ii. Fines.

The court can award any or a combination of any of the

above punishments depending upon the nature of the offence

committed. So, for example, there can be imprisonment with

fine or different sentences of imprisonment for various offences

to run concurrently or consequently.

Criminal procedure Code 1898 (as replaced by a new code

in 1973): - Prior the British rule there was no uniform law of

criminal procedure for India as a whole. There were separate

Acts, very rudimentary in character, which were meant to guide

the procedure of courts in the former provinces, presidency

towns and Indian States. It was the Cr. P.C. of 1882 which gave,

for the first time, a uniform procedural law for the whole British

India. This was supplemented by the Act of 1898 later on.

In the lights of Law Commission’s 41st report in 1969 the

code was fully amended in 1973 and it came into force from 1st

April 1974. Its object, being procedural or adjective law, is to

provide machinery for punishment for criminal Act under

52

various Acts say for example I.P.C. The machinery provided in

the code is also the same for local offences under Acts other

than I.P.C. The code, however, is not merely procedural law, has

provisions which are of the nature of substantive law, e.g. the

prevention of offences, maintenance (of children, wife, father

and mother) proceedings under chapter IX S. 125. Some of the

important areas covered by the Cr. P.C. are:

• Constitution of criminal courts and offences.

• Powers of courts;

• Arrest of persons;

• Process to compel appearance of an accused and

witness;

• Framing of charges;

• Committal proceedings;

• Trials before the Magistrates;

• Court of sessions;

• Summary trials;

• Appeals, etc.

Our present day criminal courts:

Our present day courts are made up of law made by the

legislature, meaning that their constitution, function and

jurisdiction are also governed by such law. The provisions

relating to the establishment of criminal courts, from the lowest

to the highest, are contained in the Cr. P.C.

53

A criminal proceeding is ordinarily one which, if carried to

its conclusions, may result in the imposition of sentences such

as death, imprisonment, fine, and forfeiture of property in other

words the proceeding which either results in acquittal or in

conviction is criminal. These proceedings involve the

consideration of some charge of crime, i.e. of an offence against

public law and that charge is preferable before a court or

tribunal which has or claims the jurisdiction to impose

punishments.

A person injured by a crime may start a prosecution as he

can get nothing out of it other than the satisfaction of his

outraged dignity, the prosecution is mostly conducted by the

State, i.e. by the police through the prosecutor. There are

certain injuries where both type of proceedings criminal as well

as civil can be initiated, e.g. libel/defamation. The plaintiff may

ask for damages and if he/she is successful, the defendant will

not go to jail, but where there is no chance of getting money

from the defendant, criminal proceedings may be initiated.56

Present day criminal courts lie on three separate rungs of

an ascending ladder.

57 In every district, there are courts of

judicial magistrates 1st class and 2nd class. One of the

Magistrates of the 1st class is appointed by the High Court of the

State concerned as Chief Judicial Magistrate, who is

subordinate to the sessions Judge and all other Magistrate are

under C.J.M.58

In metropolitan cities such as Delhi, Bombay, Calcutta

and Madras (Chennai), which were formerly called as presidency

56 Code of criminal procedure 1973 provides for grant of compensation in case of malafide

prosecution Under Section 358, Bare Act Cr.P.C., Central Law Pubtion, P. 135 57 Agarwala B.R., P. 66 58 Section 15 Cr.P.C., Bare Act

54

towns the courts are known as the courts of Chief Metropolitan

Magistrates and Metropolitan Magistrate. Chief Metropolitan

Magistrate has the power of C.J.M., while the Metropolitan

Magistrates have the power of Magistrates of the first class.

The High Court can appoint more judicial Magistrates of

the first class, who are designated as Additional Chief Judicial

Magistrate. They have the power of the C.J.M. in a sub division

of a district the High Court can appoint judicial Magistrates of

the 1st class who are designated as Sub Division Judicial

Magistrate, except for the general control of the C.J.M., every

sub-divisional judicial Magistrate has and exercise the powers

given to him by the High Court.59

The High Court may, whenever it appears to it to be

expedient or necessary, confer the powers of a Judicial

Magistrate of the first class or of the second class on any

member of the Judicial Service of the State, functioning as a

Judge in a civil Court.

The High Court can confer powers of a first class

Magistrate upon any person in a particular case and he/she is

known as a special judicial Magistrate. Such Magistrates are

appointed for a particular term, generally not exceeding one

year, and they try such cases as may be allotted to them. These

additional Chief Judicial Magistrates can exercise jurisdiction in

the areas allotted to them.

60

Immediately above the court of Magistrate there is court

of Sessions in each sessions division (district). Every Court of

Sessions shall be presided over by a Judge, to be appointed by

59 Agarwala B.R., P. 67 60 Section 11(3), Cr.P.C., Bare Act

55

the High Court known as Sessions Judge. It is here that more

serious offences such as dacoities, all types of homicide, theft by

habitual offenders etc. are tried when these cases are committed

to the Session court by the Magistrate courts. The High Court

may also appoint Additional Sessions Judges and Assistant

Sessions Judges to exercise jurisdiction in a Court of Session.61

The court of C.J.M. may pass any sentence authorized by

law except a sentence of death or of imprisonment for life or of

imprisonment for a term exceeding seven yrs.

All Assistant Sessions Judges shall be subordinate to the

Sessions Judge in whose court they exercise jurisdiction. The

Sessions Judge may also make provision for the disposal of any

urgent application, in the event of his absence or inability to

act, by an Additional or Assistant Sessions Judge, or if there be

no Additional or Assistant Session Judge, by the Chief Judicial

Magistrate, and every such Judge or Magistrate shall be deemed

to have jurisdiction to deal with any such application.

62

A Session Judge or Additional Sessions Judge may pass

any sentence authorized by law, but any sentence of death

passed by any such Judge shall be subject to confirmation by

High Court. A High Court may pass any sentence authorized by

law. An Assistant Sessions Judge may pass any sentence

The court of

Magistrate of 1st class may pass a sentence of imprisonment for

a term not exceeding three years, or of fine not exceeding five

thousand rupees, or of both. The court of a Magistrate of 2nd

class may pass a sentence of imprisonment for a term not

exceeding one year, or of fine not exceeding one thousand

rupees, or of both.

61 Kalkar R.V., Criminal Procedure, Eastern Book Company, Lucknow, 2001, P. 11 62 Section 9(1) and (2) Cr.P.C., Bare Act

56

authorized by law except a sentence of death or of imprisonment

for life or of imprisonment for a term exceeding ten years.

Procedure for Committal:

After the preliminary inquiry by the Magistrate in a

serious offence, if it is found that the offence is of such a

nature that it should be dealt with severely or requires a severe

sentence to be awarded which is beyond the powers of the

Magistrate, the case is sent to the Sessions Court for trial. This

is called committing a case to the Sessions Court. A Sessions

Judge also hears appeals from the orders of first class

Magistrates. (The appeal Jurisdiction of Courts has been shows

in the table below).

Trial Court Appellate Court

A High Court :

a. From conviction in extra

ordinary criminal jurisdiction

Supreme Court

b. From Conviction and sentence

to death in cases with drawn to

itself Supreme Court Under

Article 134 (b) of the

constitution; in other cases the

Supreme Court under the

Supreme Court (Enlargement

of Jurisdiction) Act

B

Sessions Judge and

Additional Sessions

Judge

:

High Court from Conviction and

sentence of imprisonment over 7

years

57

C Assistant Sessions

Judge :

Sessions Judge, subject to

exceptions as contained in the

code

D

Any Judicial or

Metropolitan

Magistrate

:

Sessions Judge, from conviction

or sentence subject to exceptions

as provided in the code

Sessions Judges also exercise revisional powers similar to

those exercised by first class Magistrates.63

Where any Court is satisfied that a case pending before it

involves a question as to the validity of any Act, ordinance or

regulation or of any provision contained in an Act, ordinance or

Regulation, the determination of which is necessary for the

disposal of the case, and is of the opinion that such Act,

The High Courts are the final courts of appeal in all

criminal matters except in cases where there has been a failure

of justice owing to a misapplication of law or a defect in

procedure. An appeal lies to the Supreme Court with the leave

of the High Court as provided in the Criminal Procedure code or

Under Article 134 of the constitution of India. In other cases,

the Supreme Court has unfettered power to grant special leave

to appeal and entertain the appeal under Article 136 of the

constitution.

Under Section 397 (1) of the Cr. P.C. the High Curt has

the power of revision over all Executive and Judicial Magistrates

and Courts of Sessions; the Session Judge has revisional

authority over the Assistant Sessions Judge, and all Executive

and Judicial Magistrate.

63 Agarwala B.R., Our judiciary, P. 69

58

ordinance, Regulation or provision is invalid or inoperative, but

has not been so declared by the High Court to which the Court

is subordinate or by the Supreme Court, the Court shall state a

case setting out its opinion and the reasons therefore, and refer

the same for the decision of High Court.

Thus it is clear that the jurisdiction as to reference vests

in the High Court and no subordinate Court has such

jurisdiction. Thus where validity of any provision of any Act,

ordinance or Regulation arises in any case before subordinate

court it shall send such question to be directed to the High

Court and after such deciding of question by High Court the

subordinated Court can dispose off the Case according to the

direction given by High Court in such reference.

CIVIL COURTS-HIERARCHY AND PROCEDURE:

The High Courts have civil, criminal, original and

appellate jurisdiction. Where such original jurisdiction has not

been conferred upon High Courts, all suits are to be filed in the

district courts which under the Civil Procedure Code, 1908, are

established in every district of a State.

There is a three tier system of civil courts in every State.

At the lower end is the sub-judge/subordinate judge, third class

(also known as or Civil Judge (J.D.) and the sub-judge second

class. In actual fact, they constitute one class although the

amount in dispute over which they have jurisdiction differs.

Above them is the court of the Subordinate Civil Judge, first

class or Civil Judge (J.D.), whose jurisdiction, so far as money

matter is concerned, is unlimited in most cases. In some such

cases such judges have appellate jurisdiction also. Above the

Civil Judge, first class, is the court of the District Judge or the

59

Additional District Judge, which is the appellate court to hear

appeals from the orders and judgments of the subordinate

judges. All courts in the States are subordinate to the High

Court and the District Court is the highest court in every

district.

The District Judge/Additional District Judge and the

Subordinate Judge of the first class have the jurisdiction to hear

suites without any limit as to their value. In the case of

subordinate lower courts, their jurisdiction depends entirely on

the value of the suit. For the purpose of the jurisdiction this is

calculated in accordance with the provisions of the Suit

Valuation Act and its rules. The proceedings under the Indian

Divorce Act, the Succession Act, etc. can be initiated only in

District Courts.64

As provided in the Civil Procedure Code, every suit is

instituted in the court according to its jurisdiction to hear and

in the locality in which the cause of action has arisen.

Generally, a suit is filed in the court within whose jurisdiction

one or more defendants actually and voluntarily reside or carry

on business or personally work for gain or where the cause of

action – full or in part – has arisen.

However, where the subordinate Judges are

specifically empowered in that behalf such as under the

Guardians and Wards Act and the Indian succession Act by

notification issued by the State government, the proceedings

can be entertained and tried by the courts.

65

64 District court means the principle civil court of original jurisdiction having unlimited

procuring jurisdiction. Shankerji Vs. Vrajlal AIR 1935 Bombay 286 – Thakker C.K., Code of Civil Procedure Vol. I, 2000, Eastern Book Company, P. 560

65 Agarwala B.R., our judiciarly, Pp. 80-81

Court of small causes:

60

There are courts known as courts of small causes, which

in presidency towns such as Delhi, Bombay, Calcutta and

Madras (Chennai) are governed by the Presidency Small Causes

Courts Act 1887. Small causes courts have jurisdiction in any

locality where the value of the subject matter is small, e.g. in

Delhi suits valued up to Rs. 1,000/- and in Bombay suits

valuation up to Rs. 10,000 (same in U.P. also) can be heard by

such courts. These values are fixed by the state government

from time to time.

The District Judge exercises administrative control over

all civil courts within the local limits of his jurisdiction. They

also hear appeals from the orders and decrees of the

subordinate Judges. However, civil courts do not have

jurisdiction over matters which have been specifically excluded

by various enactment passed by the legislature such as

disputes under The Industrial Disputes Act, The Workmen’s

Compensation Act, The Motor Vehicle Act etc. Civil Courts also

have no jurisdiction to try land matters which are solely triable

by the Revenue Courts, as well as suits and disputes as

described in the Land Revenue Codes of various states.66

• From the decree and order of the Small causes Court

of which value not exceeding Rs. 1,000/-.

Appeals:

The power of appeal is given to Senior Sub Judges of the

first class in the following instances:

66 The expression ‘appeal’ may be defined as ‘the judicial examination by a higher court of the

decision of inferior court’ or ‘it is a complaint made to the higher court that the decree passed or order made by the lower court is wrong – Thakker C.K., P. 43

61

• In land suits where the value of the suit does not

exceed Rs. 250/-; while hearing the appeal, the court

of such senior Sub-judges is regarded as a District

Court for the purpose of the appeal. A second appeal

from such appellate orders, however, lies only to the

High Court.

In all other cases, appeals from all decrees and orders of

the subordinate courts usually lie to the District Court. In some

State, the appeal up to a particular amount lies to the District

Court and if the amount is in excess of what is stipulated, the

appeal lies directly to the High Court as a regular first appeal.

The appeals from the Senior Sub-judges, first class, lie to the

High Court.

Second appeals also lie from the order/judgments of the

District Court to the High Court; if the High Court if satisfied

that (a) the case involves a substantial question of law and (b) it

is from an appellate decree passed ex parte.

Where any appeal from an appellate decree or order is

heard and decided by a single judge of a High Court, no further

appeal lies from the judgment, decision or order of such single

judge in such appeal or from any decree passed in such appeal.

However, the aggrieved party can always approach the Supreme

Court under Article 136 of the Constitution.

Civil Procedure Code (C.P.C.) 1908:

The procedure in civil courts is governed by a very

detailed statute called the Code of Civil Procedure (C.P.C.),

which provides for the institution of all suits in civil courts of

different pecuniary and territorial jurisdiction. Unless their

62

jurisdiction is curtailed or abrogated by any special law, the civil

courts are the forum for deciding any and every kind of civil

dispute between individuals, between individuals and public

authorities, whether of the government of India or of the State

government or any other authority constituted or created by any

law.67

I. Initiation of proceeding by filing a plaint or an

application.

The Civil Procedure Code defines the jurisdiction of the

civil courts in regard to various kinds of suits- for example,

suits by or against the government or public officers acting in

their official capacity, suits by aliens and by or against foreign

rulers, ambassadors and envoys, suits relating to different

matters like public nuisance and other wrongful acts affecting

the public, suites relating to public charity etc. are specially

deal with.

Under the Civil Procedure Code the main stages through

which a case runs are the following: -

68

II. Issue of notice or summons by the court to the

defendants or respondents for appearance of the

defendant or respondent and filing of a written

statement or reply by him.

III. Framing of the points of controversy called ‘issues’

between the parties;

IV. Recording of evidence of the plaintiff/petitioner,

defendant/respondent and lastly-

67 Section 80, C.P.C., Bare Act, 2003, Alia Law Agency, Allahabad 68 Section 26(1), Bare Act, Code of Civil Procedure (C.P.C.)

63

V. Delivery of the judgment by the court.

In these broad stages the trial really begins after the

issues have been framed. Before that stage many intermediary

steps, which may be considered pre-trial steps are taken. There

are pre-trial only in the sense that they are preparatory to the

trail and intended to reduce the area of controversy. These

interlocutory proceedings relate to obtaining orders for the

following from the courts: -

i. Delivery and answering of interrogatories

ii. Admission and denial of documents and facts.

iii. Discovery, inspection and production of

documents

iv. Temporary injunction and appointment of

receiver or commissioner (if necessary).

Nyay Panchayat:

Another institution designed to dispense with justice at

the grass root level is ‘Nyay Panchayat’, which has been

provided for in the Panchayat Acts in some States.69

The U.P. Panchayat Raj Act 1947 made separate

provisions for constituting of Nyay Panchayats. For this

purpose, a district is divided into circles and each circle has a

Nyay Panchayat of 10 to 25 members appointed by the

prescribed authority out of the members of Gram Panchayats

who cease to be such member on their appointment on the Nyay

Panchayat. The ‘Panches’ elect Surpanch and a Sahayak

69 Ashok Mukropadhyay, The Indian Journal of Public Administration, Vol. XLV July-Sept

1999, IIPA, Delhi, P. 541

64

Sarpanch from amongst themselves. The surpanch shall form

bench consisting of 5 ‘Panches’ to dispose off the case.70

In Actual functioning, the Nyay Panchayats have failed

because of their limited jurisdiction and lack of minimum

competence of the amateur judges. It is essential that the judges

at the grass root village courts should be required to undergo a

short training in the elementary principles of justice and court

proceedings.

71

The Supreme Court of India (apex court of India) and a

High Court for each State (apex court in its State) have been

created by the constitution and their jurisdiction and powers

are well defined in the Constitution of India itself. The

Constitution provides that the Supreme Court shall sit in Delhi

or in such other place or places as the Chief Justice of India

(C.J.I.) may with the approval of the President from time to time,

appoint. Since the commencement of the Constitution, the

Supreme Court sits in Delhi only.

STRUCTURE OF HIGHER COURTS:

72

U.P.- Allahabad (Bench at Lucknow), Maharshtra, Goa,

Dadra and Nagar Haveli And Daman And Diu- Bombay

(Benches at Nagpur, Panaji and Aurangabad) West Bengal-

There are twenty one High Courts in India as regards

High Courts seats the constitution is silent. But mostly they sit

in the capital of their state with a bench(s) at other place (s). In

some of the states, where the High Court have bounces,

benchwise position is given below.

70 Mahipal, The Indian Journal of Pub. Admn. Vol. XLV July-Sept 1999 IIPA, Delhi, P. 550 71 Ashok Mukhopadhyay, IIPA Journal July,Sept 1999, P. 542 72 Kelkar R.V., Criminal Procedure, 2001, Eastern Book Co., Lucknow, P. 9

65

Calcutta (Circuit Bench at Port Blair), Assam, Manipur,

Meghalaya, Nagaland, Tripura, Mizoram and Arunachal

Pradesh-Guwahati (Benches at Kohima, Aizwal, Imphal,

Shillong and Agartala) Madhya Pradesh – Jabalpur (Benches at

Gwalior and Inodore) Bihar-Patna (Bench at Ranchi) and

Rajasthan-Jodhpur (Bench at Jaipur).73

The Supreme Court and High Courts are courts of

record.

Courts of Record:

74 Court of record means the decision of such court is

binding on all courts subordinate to it and will be accepted as

evidence in subordinate courts. No question of validity can be

raised in subordinate court when the decision of court of record

is quoted. Hence the Supreme Court’s decisions are binding on

all High Court and subordinate courts and decision of a High

Court is binding on all courts under its subordination in the

state(s) concerned. With this the court of record includes the

power to punish for its contempt.75

The Supreme Court and every High Court consists of a

Chief Justice and such other judges as the President may from

time to time deems it necessary to appoint. Similarly in the

subordinate judiciary, every district court in every State

consists of District and Sessions Judge District and Sessions

Judge is one person in each district i.e. when a judge deals in

Composition and Strength of Courts: -

73 Choudhary Pawan Manmauji, The Indian Journal of Public Administration Vol. XLV, July-

Sept 1999, IIPA Delhi, P. 305 74 In Wharton’s Law Lexicon (14th Edu. P275) the term court of record has been defined as –

“Courts are court of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison”, Shukla V.N., Constitution of India, 2001, Eastern Book Co.

75 Pylle M.V., Indian Constitution, P. 219-223

66

criminal matters he is Sessions & Judge and when he deals in

civil matters then he is civil judge (as discussed above) and such

other additional district and sessions judges, and subordinate

judges as the Governor of the State concerned may from time to

time deems it necessary to appoint. Since 1986, the Supreme

Court consists of 25 judges besides C.J.I. which was seven

initially in 1950, ten in 1956, thirteen in 1960 and seventeen in

1981. Excepting three Advocates only judges of High Courts

have been appointed as judge of the Supreme Court.76

76 Chaudhary Pawan Manmauji, The Indian Journal of Public Administration Vol. XLV, P.

305

Every High Court has sanctioned Judges’ strength. It has

been increased from time to time. As on June 20, 1998 total

sanctioned Judge’s strength of various High Courts was 581.

As on May 1997, in 18 High Courts there were as many

as 503 judges including Chief Justices. Among these judges, the

representation of Bar judges (directly recruited from the Bar)

and service judges (promoted from services) was thus – Chief

Justices 18 (from Bar 16, from service 2), Bar judges 313

(62.33%) service judges 190 (37.67%) senior most (two) puisne

judges – Bar judges 32, service judges 4.

Of the 190 services judges in various High Courts, direct

recruits to Higher Judicial Service and promotee from civil

judges numbered 66 and 124 respectively.

When office of Chief Justice of India is vacant or when the

C.J.I. is by reason of absence, unable to perform the duties of

his office, the duties of the office are performed by such one of

the other judges of the court as the President may appoint for

the purpose (Article 126 and 128).

67

Personnel System of Higher Courts: -

Appointment of Judges: -

The Constitution does not lays down qualifications for

procedure for appointment of Chief Justice of India or Chief

Justice of High Court, but it does lays down qualification for

appointment of a Judge of the Supreme Court and High Court

as follows: - Supreme Court – citizen of India and experience of

a. Five years as a judge of High Court or of two or

more such courts in succession or,

b. Ten years as an advocate of High Court or of two or

more such courts in succession or,

c. In the opinion of the President, a distinguished

jurist;

High Court- citizen of India and experience of holding

judicial office in the territory of India for at least 10 years,

practising law as an advocate of High Court, Higher judicial

service – India’s citizenship and seven years standing at Bar and

subordinate judiciary – India citizenship and must be eligible for

the membership of Bar Council.

An advocate of High Court has been defined under the

Advocates Act, 1969 as a person enrolled with the Bar council of

India as an advocate of a High Court itself or in Courts

subordinate to it or both, irrespective of type, place or standing

of practice, standard. Appointment as Justice of Supreme Court

or High Court is made by the President on the recommendation

of the Chief Justice of India and advice of the Union Cabinet.

Appointment as member of subordinate judiciary is made by the

68

head of the respective State government on the recommendation

of the High Court or State Public Service Commission.

In the case of appointment of a Judge of Supreme Court

or High Court other than the Chief Justice, the C.J.I. is always

consulted.

Oath: -

Every person appointed to be a judge of the Supreme

Court shall, before he enters upon his office, makes and

subscribes before the President, or some person appointed in

that behalf by him, on oath or affirmation according to the form

set out for the purpose in the third Schedule of the constitution.

Tenure of Judges – An Analysis:

On average, every fourth judge of the Supreme Court has

adorned the chair of Chief Justice of India. His tenure has been

less than two years. Justice Y.V. Chandra Chud’s innings as

Chief Justice has been the largest so far – from February 22,

1978 to July 11, 1985, while Justice K.N. Singh’s tenure has

been the shortest – Nov. 25, 1991 to December 12, 1991, which

included quite a few holidays as well. Justice J.C. Shah’s tenure

as Chief Justice was little more than a month – December 17,

1970 to January 21, 1971.

Jurisdiction of Courts: -

Jurisdiction of the Supreme Courts and High Court are

described in the Constitution and those of subordinate judiciary

in the Code of Civil Procedure and Code of criminal procedure

(as has been discussed above) in general and specific status in

particular. Indian Supreme Court has widest possible

69

jurisdiction of not less than seven kinds each having sea-sky

scope. These may broadly be classified thus: -

1. Original Jurisdiction

2. Exclusive Jurisdiction

3. Appellate Jurisdiction

a. Civil

b. Criminal

c. Certificate Jurisdiction

4. Special Leave Jurisdiction

5. Writ Jurisdiction

6. Transfer of Case Jurisdiction

7. Review Jurisdiction

8. Advisory Jurisdiction

Besides, the Supreme Court has created or carved for

itself and High Courts one more jurisdiction in the name of

public interest or public welfare. It may be utilized by (1) public

spirited person and (2) Supreme Court or High Courts at its own

i.e. suo moto. Public spirited person may be any member of the

public or professional. The pattern of jurisdiction of every High

Court is almost similar to that of the Supreme Court except in

one respect – it is confined to the concerned State.

70

Transfer of Judges:

The President may transfer a judge from one High Court

to another High Court. Before doing so his consultation with the

Chief Justice of India is necessary. High Court has power to

transfer any officer of subordinate judiciary within the State.

A joint conference of Chief Justices and Chief Ministers

endorsed the policy of having 1/3 of the judges from outside in

each High Court in December 1993.

Transfer has been affected on two grounds –

administrative and as a matter of policy. As on May, 1997

transfer judges in various High Court totalled 127 – 39 (Bar

judges 32 and service judges 7) on administrative grounds and

88 (Bar judges 40, and service judges 48) on matters of policy.

Recently, a petition filed by a judge of High Court in the

High Court of Rajasthan at Jodhpur against his transfer from

Bombay High Court to Rajasthan High Court on the ground of

arbitrariness and discrimination has been rejected.

Resignation/Retirement/Removal:

A Judge of the Supreme Court (as also C.J.I.) may resign

his office. He may do so by writing under his hand addressed to

the President. So is the Care with a Judge of High Court

including Chief Justice and any member of subordinate

judiciary in any State?

Two ages have been fixed in the constitution for

retirement of judges of the Supreme Court and High Courts as

65 years and 62 years (till 1963, it was 62 years and 60 years)

respectively.

71

A judge of Supreme Court or High Court can not be

removed from his office except by (1) an order of the President

passed, (2) after an address by each house of parliament, (3)

supported by a majority of the total membership of that house,

and (4) by a majority of not less than 2/3 members of that

house present and (5) voting has been presented to the

President in the same session for such removal on the ground of

proved misbehaviour or incapacity. Parliament may by law

regulate procedure for the presentation of an address and for

the investigation and proof of the misbehaviour or incapacity of

a Judge. Since establishment of the Supreme Court and High

Courts, not even a single judge has been ‘impeached’. Only one

unsuccessful attempt (against justice V. Ramaswami) has been

made in the case of a Judge of the Supreme Court.

Post retirement/ Resignation status of Judge:

No person who has held office as a Judge of the Supreme

Court shall plead or act in a court or before any authority within

the territory of India. Similarly, no person, who has held office

as a permanent Judge of a High Court, shall plead or act in any

court or before any authority in India except the Supreme Court

and the other High Court. Thus, the restriction is applicable to

Judges, who have retired, resigned or even removed.

Code of Conduct:

All the judges of the Supreme Court and High Courts have

unanimously decided on May 7, 1997 to evolve mechanism to

ensure proper conduct by the Higher Judiciary.

72

National Judicial Council:

On 11th June 2005 a meeting held in Shimla participated

by the law ministers and Secretaries of States on the issue to

curb corruption in judiciary to make judiciary transparent and

to make judicial officers more accountable. In the meeting it was

decided that for the purpose a judicial council shall be

established to be known as National Judicial Council. This

seven members’ Council shall be headed by the Chief Justice of

India.77

77 Pratiyogita Darpan, Upkar Publiation, Agra, August 2005, P. 173

73

References

1. Aggarwal, Nomita, Handbook on Lok Adalat in India, New

Delhi: Interest Publications, 1991.

2. Ahuja, Ram, Youth and Crime, Jaipur: Rawat

Publications, 1996.

3. Ansari, M.A., Social Justice and Crime in India, Jaipur:

Subline Publications, 1996.

4. Batra, Manjula, Protection of Human Right in Criminal

Justice, New Delhi: Deep & Deep Publications, 1989.

5. Becker, Howard (ed.), Social Problems: A Modern

Approach, New York: John Wiley and Sons, 1966.

6. Bhatia, H.S., Origin and Development of Legal and Political

System in India, Vol. 1 & 2, New Delhi: Deep & Deep

7. Bhatnagar, S., R.N. Soni, and Raj Kannas, Social Justice

and Equality in India, New Delhi:Ess Ess Publications,

1987.

8. Brij, Mohan, India’s Social Problems, Allahabad:

International Publications, 1972.

9. Chahar, S.S., Dynamics of Electoral Politics in Haryana,

Vol. 1, New Delhi: Sanjay Prakashan, 2004.

10. Chitkara, M.G., Lok Adalat and the Poor, New Delhi:

Ashish

11. Das, Sukla, Crime and Punishment in Ancient India, New

Delhi: Abhinav Publications, 1977.

74

12. Deb, R., Criminal Justice, Allahabad: The Law Book

Company, 1998.

13. Desai, A.R., Rural Sociology in India, Bombay: Popular

Prakashan, 1978. 117

14. Dhankhar, J. S. (ed.), Haryana Past and Present, New

Delhi: Sanjay Prakashan, 2003.

15. Dhavan, R., Judges and Judicial Power, Bombay: N.M.

Tripathi Pvt. Ltd., 1985.

16. Dhondyal, S.P., Research Methodology in Social Science,

New Delhi: Friends Publications, 1991.

17. Doon, R.S., Jan Suchna Sagar, Rohtak: District

Administration, 2006.

18. Gandhi, J. S., Law and Social Change, Jaipur: Rawat

Publications, 1989.

19. Grover, Virender (ed.), Political Process and Role of Courts,

New Delhi: Deep & Deep Publications, 1997.

20. Hester, Stephen and Peter Eglin, A Sociology of Crime,

London: Routledge Press, 1992.

21. Indian Social Justice In Crisis, New Delhi: Affiliated East

West Press Ltd., 1983.

22. Indrayan, N.K., Law and Public Opinion in India, New

Delhi: Deep & Deep Publications, 1985.

23. Iyer, V.R. Krishna, Indian Justice: Perspective And

Problems, Indore: Vedpal Law House, 1984.

75

24. Jain, M.P. and S.N. Jain, Principles of Administrative Law,

Agra: Law Publishers, 1997.

25. Jain, M.P., Outlines of Indian Legal History, Bombay: N.M.

Tripathi Pvt. Ltd., 1990. 118

26. Johnson, Elmer H., Crime, Correction and Society,

Georgtown: The Dorsey Press, 1978.

27. Juneja, P.C., Equal Access to Justice, Rohtak: The Bright

Law House, 1993.

28. Kapoor, S.K., International Law, Allahabad: Central Law

Agency, 1996.

29. Kaul, Anjali, Administration of Law and Justice in Ancient

India, New Delhi: Sarup & Sons Publications, 1993.

30. Khan, M.Z. and Kamlesh, Sharma, Profile of Nyaya

Panchayat, New Delhi: National Publishing House, 1982.

31. Khana, H.R., Judiciary in India and Judicial Process,

Calacutta: S.C. Sarkar & Sons Pvt. Ltd., 1985.

32. Lahiri, Tarapada, Crime and Punishment in Ancient India,

New Delhi: Radiant Publishers, 1986.

33. Majumdar, R.C., The History and Culture of the Indian

People: Mughal Empire, Vol. VII., Bombay: Bhartiya Vidya

Bhavan, 1974.

34. Mann, T.K., Administration of Justice of India: A case

Study of Punjab, New Delhi: Concept Publishing

Company, 1979.

76

35. Mehta, S.M., Indian Constitutional Law, New Delhi: Deep

& Deep Publications, 1990.

36. Mir, Mehrajuddin, Crime and Criminal Justice System in

India, New Delhi: Deep & Deep Publications, 1984.

37. Mishra, R.C., Crime trends and Criminal Justice, Delhi:

Authors Press, 2001.

38. Misra, B.B., The Judicial Administration of The East India

Company in Bangal, Oxford: Oxford University Press,

1961.

39. Misra, S.N., New Horizon in Rural Development

Administration, Delhi: Mittal Publications, 1989.

Chapter: Two

Review of Literature and Methodology

77

Chapter Two

Review of Literature and Methodology

The review of literature is the exploring phase of research.

It helps the researcher to investigate a specific field of his

interest in respect of researches that has been conducted in

India as well as abroad. It provides insight as well as direction

to indicate and identify the research problem in taking a sample

in selecting appropriate methodology.

Theoretically research process cannot be started until the

hypotheses can be ensured by reviewing the literature relevant

and related for the solution of the problem; it is condition pre-

requisite i.e. review of literature, for the formation of research

hypotheses. Henceforth this chapter is an endaevour of the

review of literature available prior to the present research.

The book ‘Growth of legal system in Indian Society1 by

Indradev Shriram focuses on legal institutions and values. But

this book lays light down on the important social, cultural

change in early Indian society. In this order there is also an

outstanding creature of Ram Shankar Tripathi’s ‘History of

Ancient India.’ In this book the author discussed prevalent

administrative system in Rigvedic period, Maurya period and

Gupta period. In reviewing the administrative system the writer

also studied the judicial system in those days.2

A.S. Altaker in his book ‘State And Government in Ancient

India’ has made efforts to understand the evolution,

development, kinds, nature, purpose, function of State during

1 Shriram Indradev, Growth of legal system in Indian Society, Allied Publishers, New Delhi, 1980. 2 Tripathi, Ramshankar, History of Ancient India, Jain Publications, New Delhi, 1942.

78

Vedic period in India and critically examined relationship

between citizens and State, legislature, executive, secretariat,

administration of local towns and village. This book also

discusses administration of justice in ancient period. The

author also talks about the Vedic period literature and thoughts

of thinkers relating to justice system.3

Netra Panday in his book ‘Political Ideas and Institution in

Ancient India’ explained prevalent justice system in Mahabharat

period, Maurya period and afterwards on the basis of

Ramayana, Mahabharat Kautilya’s Arthshastra, Manusmriti,

Yajnvalkya, Nitishastra, Kaamandankiyam etc. It is more

descriptive and mythological rather than analytical

4

Ishwari Prasad has examined judicial system, though

partially but qualitatively in his book ‘Ancient Indian Culture,

Art, Politics, Religion and Philosophy’

.

5. Similarly judicial

procedure adopted by Indian judiciary in ancient India has been

analysed by M.K. Sharma in his book ‘Court Procedure in

Ancient India’. M.K. Sharma has studied judicially the

procedure adopted by central court institution in erstwhile

system6

‘Juristic Concept of Ancient Indian Polity’ contains the

collection of lectures delivered by eminent jurist Nagendra Singh

in the memory of B.N. Rao. The learned lecturer mentioned

.

3 Altaker A.S., State and Government in Ancient India, Moti Lal Benarsidas, 1988. 4 Pandey Netra, Political Ideas and Institution in Ancient India, Bharti Prakashan, Allahabad, 1980 5 Prasad Ishwari, Ancient Indian Culture, Art, Politics, Religion and Philosophy, Menu Publications, Allahabad, 1984.

6 Sharma M.K., Court Procedure in Ancient India, Abhinav Publication, New Delhi, 1978.

79

constitutions and administration of justice system in a period

from Vedic to Maurya and afterwards7

There is scarcity of literature in relation to organic

development of ruling institutions and political theories.

Satyaketu Vedalankar has made important efforts in this

direction in his book ‘Ruling Institution and Political Ideas of

Ancient India’. To achieve this goal in this direction he has been

directed by Ashtadhyee by Panini, Arthshastra by Kautilya,

Ramayan, Mahabharat. One chapter of this book deals in

justice, law and order in ancient India; which he mentioned that

in ancient period laws were based on religion and traditional

customs and the king subjected himself to the law i.e. law was

supreme. The king was the supreme officer of justice system. He

might have appointed any person as judge, who had been

skilled in Vedashastra. In addition to that he has produced

thoughts of different thinkers relating to ancient justice system.

Summarily it can be said that this book is good attempt to

highlight ancient system and ideas

.

8

In medieval period some changes took place in ancient

judicial system. In this context C.V. Vaidya discussed Hindus

States and prevalent judicial system therein, separately and

attempted to show that there was no specific change, more or

less it was almost the same

.

9

P. Sharan and S.C. Rai Chaudhary in their book

‘Provincial Governance of Moghuls (1526-1658)’

.

10

7 Singh Nagendra, Juristic concept of Ancient Indian Policy, Vision Book, New Delhi, 1980 8 Vidyalankar Satyaketu, Ruling Institution and Political Ideas of Ancient India, Saraswati Sadan, New Delhi, 1983

9 Vaidya C.V., History of Medieval Hindu India, Cosma Publication, New Delhi 10 Sharan P., Provincial Governance of Moghuls, Rashtriya Prakashan Mahal, Lucknow, 1970

and ‘History

80

of Muslim India’11 respectively laid down importance on

political, economical and social reference, whereas judicial

system is mentioned briefly therein. In this process the book

written by Aashrivadi Lal Shrivastava ‘Moghul Period in India’12

John William Key has discussed the judicial system in

colonial India in his book ‘The Administration of East India

Company’. In this book the author partially discussed judicial

system and the book talks about the administrative problems

and efforts made for its reform and development

is worth mentioning but the book does not lays light upon the

local judicial system.

13

K.K. Dutta analysed political, military, social, economical,

educational and judicial situation in British India in his book ‘A

Comprehensive History of India’. So this book is useful to

understand the then system is different forms

.

14. On the same

lines W.A.J. Arthbold explained the facts relating to events

concerning Act of 1919, formation of Government from

establishment of institutions in British India as well as

evolution and development of Government in his book ‘Outline

of the Indian Constitutional History’15. In ‘History of Indian

Administration’, V.N. Puri discussed the administrative system

of different rulers in eighteenth century, however, the book

nominally tells about the judicial system16

11 Chaudhayr S.C.Rai, History of Muslim India, Delhi, Surjeet Publication, 1986 12 Shrivastav Aashirvadi Lal, Moghul Period in Indian, Shivlal Agarwal and Company, Agra, 1990 13 Key, William John: The Administration of East Indian Company, Kitab Mahal, Allahabad, 1966 14 Dutta K.K., A comprehensive History of India, Pupils Publication, New Delhi, 1985 15 Arthbold, W.A.J., Outline of the Indian Constitutional History, Harour and Rao Publishers, 1973 16 Puri B.N., History of Indian Administration, Bhartiya Bhawan, Bombay, 1975

.

81

To study changing pattern of judicial system in post

independence period in India the book ‘Changing Aspects of Law

and Justice in India’17 by O.P. Motiwal and Atul Chand Patra’s

book ‘The Administration of Justice under the East India

Company in Bihar and Orissa are relevant18

Where in the above mentioned books the changing

pattern of judicial system in the Indian socio-economic

environment during pre and post independence period has been

discussed it had also been analysed that what challenges have

been made by the social and economical circumstances.

Prevalent judicial system prior to independence has been

discussed in the book. But the book is silent as to the available

judicial remedy in that environment

.

19

On these lines G.S. Chhabra has mentioned the birth of

Indian judiciary, constitutional History of modern Indian

constitution and all amendment Acts in his book ‘Advance

Study in Constitutional History of India (1773-1947)’. B.D.

Kulshrestha and A.C. Banerjee in their books ‘Landmarks in

Indian Legal and Constitutional History’

.

20 and ‘Constitutional

Development of India’21

Similarly, S.S. Deshikochar evaluated challenges faced by

judicial system from the establishment of British empire till the

respectively investigates the effects and

causes of changing judicial system under the Act of 1909 and

1935.

17 Motiwal O.P., Changing Aspects of Law and Justice in India, Law Publications, Allahabad, 1979 18 Patra, Atul Chadra, The Administration of Justice Under East India Company in Bengal, Bihar and Orissa, Asia Publications, Bombay 1962 19 Chhabra G.S., Advance Study in the Constitutional History of India (1773-1947), New Academic Publications Company, Jalandhar, 1973. 20 Kulshrestha V.D., Land marks in Indian Legal and Constitutional History Eastern Book Company, Lucknow, 1997. 21 Banarjee A.C., Constitutional History of India, Mac Milan Publication, New Delhi, 1982

82

departure of Britishers in his book ‘Reading in Constitutional

History of India’ and told that how challenges were established

before judicial system by the reaction and anti-reaction of social

and economic power22. In this process M.P. Jain in his book

outline of ‘Indian Legal History’ showed the development of

Indian judicial system in English period. In this book in

addition to the development of major court system in Calcutta,

Bombay and Madras under East India Company, the Indian

judicial system under British Crown and different kinds of laws

such as Hindu laws, Muslim laws have been discussed23

In an article G.S. Gandhi in “Lawyers and Tauts” has

studied social aspect of judicial service in modern age and

established that some people earn money and mediates between

the advocates and persons coming to the court. He has studied

socio-economic background of such persons

.

24. The relation

among law, judges and justice have been analysed by S.N. Rana

in his research work ‘Law Ages and Justice’. He suggested in

conclusion that what judges should do in order to maintain

these relationship in doing justice. This book also takes a view

of struggle between legislature and judiciary and its

consequences. The author is of the opinion that there is a need

to make moderate legislative regulations25

On this pattern Krishna Ayyar expressed his view widely

on judicial system in his book ‘Indian Justice’. He is of the

opinion that judicial system has failed to deliver social justice.

.

22 Desikachar S.V., Reading in the Constitutional History of India (1757-1947), Oxford University Press, Bombay, 1993. 23 Jain M.P., Outlines of Indian Legal History, A.S. Publication, Bombay, 1972 24 Gandhi G.S., Lawyers and Tauts, Hindustan Times, New Delhi, 1982 25 Rana S.M., Law Ages and Justice, Vedpal House India, 1979

83

In this reference he has illustrated the judicial system of other

countries too26

The effective analysis of problems to be faced by Indian

judiciary has been done by K.S. Hegre in his research ‘Crisis in

Indian judiciary’. The author has, by pointing out the increasing

influence of legislature, established that if the legislature

intervenes in the functioning of judiciary the judicial system

would fail to achieve its goals. He has held instable

administrative system responsible for the poor performance of

judiciary. Conclusively it may be said that the author thinks

seriously upon the maintenance of freedom of post

independence judiciary from intervention of executive and

legislature

.

27

Grassman Joyalbi’s book ‘Lawyers and Judges’ is an

analysis of influence of American Bar Association in the

recruitment of federal judges. An empirical explanation of the

politics of selection procedure has been made and light has

been laid down upon the causes of taking interest (in selection)

by President and Attorney General, Senate and Bar; with this

nature of selected judges influence of Bar in recruitment

procedure etc has been discussed. The book is helpful to

understand the functions of judges, judicial procedure and

political relationship

.

28

Similarly former Chief Minister of Maharashtra A.R.

Antuley analysed the relationship of executive, legislature &

judiciary in the appointment of Chief Justice of Supreme Court

in his creature ‘Appointment of A Chief Justice’. The

appointment of Chief justice has many times created

.

26 Krishna Ayyar V.R., Indian Justice, Vedpal House Indore, 1989. 27 Hegre K.S., Crisis in Indian Judiciary, Sindhu Publication, Bombay, 1973 28 Joyalbi, Grassman, Lawyers and Ages, John Wily & Sons, New York, 1969

84

controversies emerging a question whether interpreter of

constitution is Parliament or Supreme Court. The book aims at

the loop holes exists or emerges in the Indian judicial system at

apex level but book doesn’t make any comment on district level

judiciary29

In this order Phillip B. Carland in his book ‘The Supreme

Court and Judicial Function’ critically analysed those cases

specifically which affected national environment and by

explaining decisions given by Supreme Court made it clear that

the boundaries can not be decisive but they are established.

Ultimately the book relates to the analysis of the power of

legislature and judiciary

.

30

Rajeev Dhawan’s book ‘The Supreme Court of India: A

Socio-legal critic of its justice technique’,

.

31

David Frank Ross, J. Don Read and Michael P. Toglia in

their book ‘Adult Eye Witness Testimony: current trends and

development’

Mairazuddin’s book

‘Justice India’ and Keshav Chandrashekhar Pillai’s book ‘Public

Participation in Administration Justice are worth mentioning in

this context. These books elaborate the problems of plaintiff-

defendant, advocates and discuss the challenges to be faced by

judicial system.

32

29 Antulay A.R., Appointment of a Chief Justice, Popular Publication, Bombay 30 Karland Phillip B., The Supreme Court and the Judicial Functions, Oxford and I.B.H. Publications, New Delhi, 1977 31 Dhawan, Rajeev, The Supreme Court of India, A Socio-legal Critic of its Justice Technique. 32 David Frank Ross, J. Don Read, Michael P. Toglia, Cambridge University Press, 1994

provides an overview of current empirical

research on eye witness testimony and identification accuracy.

The book addresses three important issues – Cognitive, social

and physical factors that influence the accuracy of eyewitness

reports, designing line up to obtain accurate information and

85

whose testimony should be believed? In the book ‘Past or Future

crimes33 the author Andrew Von Hirsch tells about the

sentencing guidelines, proportionate punishment, how much

punishment in delivered, how much fine should be levied etc.

V.M. Shukla in his book ‘Legal Remedies’34

Catherine Fitzmaurice and Ken Pease in their study

‘Psychology of Judicial Sentencing’

lays light down on

various legal remedies available under various enactment in

India.

35

Eminent administrator and politician B.K. Nehru

tells about the behaviour of

judges passing sentence as the way they use their power affects

us all directly or indirectly; yet most of us have never thought

about how judges approach the strung job of measuring their

distaste for offender into punishment – years, pounds (money)

or hours.

Thus from the analysis of aforesaid research texts it is

clear that problem of judicial system at district level has not

been studied so far. Hence the purpose of the present research

is to review the judicial system and problems to be faced by it at

local level and to find out measures to resolve the problems. No

effective attempt has been done in this respect so far. So the

present study is an initiative in this direction. On this level

some important research paper may be quoted.

36

33 Hirsch Andrew Von, Past of future crimes, Manchester University Press, 1985 34 Shukla V.M., Legal Remedies Eastern Book Company, Lucknow, 1962 35 Catherine Fitzmaurice and Ken Pease, Psychology of Judicial Sentencing, 1996 36 Nehru B.K., Administration of Justice, Mainstream Vol. 21 Nov. 3 1985.

in his

writing ‘Administration of Justice’ has pointed out three main

causes for non availability of effective justice e.g. ineffective

investigation by police, delay in the delivery of judgment by

86

courts and lethargic attitude of legislature. In addition to this

taking too much remuneration (fee) by the advocates is main

reason behind the corruption in judiciary. As a solution of the

problem the author has advocated the establishment of specific

judicial system at rural level and strengthening efforts

concerning ‘Lok Adalats’.

Justice V.R. Krishna Ayyar in his creature ‘Distortion in

our Justice System’37

In ‘Ensuring Independence’

lighted upon the delay functioning of

Indian judicial system. He maintains that justice has become in

favour of persons having muscle and money. So there is no

hope for the poor people. Hence, the system needs reforms and

for this purpose it must be prompt, cheap and easily available

(in early access) and with this procedural delay should be

eliminated from the judicial system.

38

S.K. Majumdaar in ‘Justice Delayed Justice Denied’

N.M. Hatate expressed his

views about the appointments of Judges in judicial system. He

is of the opinion that status of justice in the judicial system has

been declined because judges are influenced by the leadership

and party system either directly or indirectly.

39

37 Ayyar V.R. Krishna, distortions in Our Justice System, Mainstream, 22 Nov. 1990 38 Hatate N.M., Ensuring Independence Hindustan Times, New Delhi, May 25, 1993. 39 Majumdar S.K., Justice Delayed is Justice Denied, Mainstream, Jan 21, 1998

pointed out towards misuse of procedural system and attempted

to prove that legal terminology or glossary is produced in a

twisted form as a result of which tendency of litigation is

increasing day by day. So the contention of the author is that

disciplinary action must be taken against the advocates

misusing the legal system and special courts are established for

the disposal of the cases which are pending since years so that

the system of justice may be activated to do justice tmely.

87

The discussion with P.N. Bhagwati has been published

under title ‘Law, Justice and the Under Privileges’40

V.R. Krishna Ayyar wrote in his article ‘‘Courts’ role in

social transformation’,

. He has

critically discussed the incapacity of judicial system to do

justice with the rural labourers. According to the article rural

labours are inorganized, on the contrary ‘Samantas’ and

‘Zamindars’ are organized. The author is of the opinion that

there is a need of justice under the various enactments with

various provisions under constitution of India, because the

question of political freedom can not be raised or solve unless

there is social and economical freedom available to the citizens.

41

In this process Justice O. Chenna Reddy lays light upon

the role of advocates and judges in judicial system in his writing

‘Role of legal profession in a developing society’.

that system of justice has obligation to

make rapport in between economical, social and legal systems.

Because without politics law is blind and politics is deaf without

law. In the context he said that the judges should be more or

less a sociologist so that he may contribute in the social change

by experiencing change in the society.

42

40 Bhagwati P.N., Law, Justice and Under Privileges, Mainstream, June 21, 1994. 41 Ayyar, V.R. Krishna, Courts’ Role in Social Transformation, Mainstream, 22 Nov., 1980 42 Chenna Reddy O., Role of Legal Profession in the Developing Societies, Mainstream, Nov. 28, 1988.

He says that

there is no longer relation of advocates he remained with the

society/masses/common men. Now the advocates’ aim is to

earn more money, hence poor, unable and uneducated person is

deprived of justice. There is a need that Judges and advocates

ought to take justice as a social mission then only inexpensive

and easily available justice may be ensured. S.S. Singh in his

88

research paper ‘Natural Justice’43

V.R. Krishan Ayyar in his writing ‘Justice to Dalits; How

long’

laid emphasis upon the

concept of natural justice and tried to establish that in the

coming times this concept would be important to do justice to

common man.

44

Thus from the review of above mentioned books and

articles it is clear that only a few empirical studies on the

district level judiciary, in reference of its problems, challenges

before it, relation between the district judicial system and the

person coming to the court for justice, has been conducted. In

this context the present research will try to examine the

hypotheses concerning to judicial reforms, why pendency of the

showed his dissatisfaction in the doing of justice with

dalits (down troddens). He is of the opinion that there is a great

difference in between actual situation and provisions made

constitutionally. Even now a days dalits are subjected to

cruelty, and massacre. They are leading even todays non

respectable, hatred and full of atrocities life in the society. They

are also subjected to crime due to historical, social and

economic reasons. After independence various commissions

have been organized from time to time in reference to the

problems of dalits but the recommendations of these

commissions have not been paid attention so far. Rajasthan is

one of those States where Dalit Atrocities (prevention) law is

enforced by special courts. But this Act is almost dead as to

enforcement and effect. So the justice to dalits is remained only

flop show. Thus the article is related to justice with reference to

dalits only.

43 Singh S.S., Natural Justice, Indian Journal of Public Administration, New Delhi, 1987, 142-147. 44 Ayyar V.R. Krishan, Justice to Dalits, How Long?, Mainstream, 26 Oct. 1991.

89

cases is increasing, accountability of judiciary and bar, effect of

existing socio economic environment upon the capability of

judicial sub-system etc. Hence, there is a need of present

research.

For this purpose one hundred stratified random sample

from amongst plaintiffs/defendants (i.e. person coming to claim

relief before district judicial system) fifty stratified random

sample from amongst advocates (practicing in kutchery at

Lucknow district) and fifteen from judicial officers presiding in

the courts of District Lucknow (population approx. 30 lacs

according to the census of 2001) have been taken. It is

worthwhile to mention that the universe of study is Lucknow

District Which is an affluent, academically and politically

vibrant and eminent capital city of U.P.

90

References

1. Bent, Alan C., Police, Criminal Justice and the

Community, Harper and Row, London 1976.

2. Bhagat, Arun, ―Policing Versus Politicking‖, Civil

and Military Law Journal, Vol. 37, Nos. 2 and 3,

April-September 2001.

3. Bhargawa, G.S., ―Flashback on 1975 and

Jayalalitha‘s Administration of Criminal Justice‖,

Mainstream, 2001.

4. Chakraborty, N.K., Probation System in the

Administration of Criminal Justice, Deep and Deep

Publications, New Delhi, 1995.

5. Chakravartty, N.K., ―Criminal Justice Policy of

Humanitarian Law: Theories‖, Aligarh Law Journal,

Vol. 11, 1996.

6. Chakravartty, N.K., ―Decision Making Process in

the Criminal Justice System and the Law of

Probation‖, Criminal Law Journal, Vol. 97,

November 1991.

7. Aujla, G.S., Second to None: A History of Punjab

Police, Mohindra Bros Printers, Ludhiana, 1995.

8. Austin, Granville, The Indian Constitution –

Cornerstone of a Nation (1972).

9. Dutta, Nalini Kanta, ―Criminal Justice in Tradition

of Hindu Society‖, Gauhati University Journal of

Law, Vol. 4, 1990.

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10. Faizan and Talib Javed Mustafa, ―Influence of

Public Interest Litigation on Administration‖,

Aligarh Law Journal, Vol. 11, 1996.

11. Feinberg, Joel and Cross Hyman (Ed.), Philosophy

of Law (1975).

Chapter : Three

Conceptual Understanding of Justice

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Chapter Three

Conceptual Understanding of Justice

In human society the concept of justice has its significant

role, and this concept has been an important subject matter in

the study of politics, philosophy and jurisprudence etc the

concept of justice has continuously gone under change with the

changing circumstances of time and traditions. What today is

justful can be the basis of injustice tomorrow. For example

bigamy and polygamy was recognized valid in olden days, but it

is illegal today. Thus the interpretation of justice is made on the

basis of customs and traditions in force at that particular time.1

Historically, for the concept of justice, the emphasize was

upon the form of ‘Just man’ in whom those virtues were to be

found which makes man justful. Hence at that time the main

problem of justice was that the society needs from a person. But

in modern period the concept, especially in sociological

thinking, is - how a just society is. Its main objective is to bring

social change.

2

So where in traditional thought the main emphasis was

upon the individual character, in modern thinking, on the other

hand emphasis is upon ‘Social Justice’ and the concept of social

justice is an attempt of co-ordination among ideals of freedom,

equality and fraternity. Thus today the main problem of justice

is that in the society or social life what should be the

1 Badyal J.S., Political Theory, Raj Publishers, Jalandhar 1998, P. 61.

2 Gabo O.P., An Introduction to Political Theory, Mayur Paper backs, Noida (U.P.) 1998 P. 249

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appropriate basis of allocation of goods, services, opportunities

benefits, power and honour among different persons or groups.3

The word justice comes from latin word ‘jus’ which mean

bond or tie. That is to say justice is an arrangement in which

persons are bonded with each other in relationship. Every

person being a part of the society is related with other persons

of the society in one or the other manner and some rights and

duties are associated with these relationships. When a person

discharge his duties using his rights and does appropriate or

reasonable behaviour with other then it is said that he is doing

justice.

Meaning of Justice:

4

In both the occidental and oriental political philosophy,

the concept of justice has played very significant role. In Indian

thinking justice was given very important place. It is the

characteristic of Indian thinking that legal aspect of justice was

recognized in the ancient period, which was accepted by

western thinkers in modern period. Manu, Brihaspati, Shukra,

Somdeva and Kautilya were among such Indian thinkers. Today

we classify the disputes between two categories viz. civil and

criminal. Manu has divided it in the early period; Kautilya’s view

was that justice is the soul and life of the State. He was of the

opinion – that the State which does not provide impartial

justice, gets deteriorate and extinct very soon.

5

In western thinking prior to Plato three form of justice

were in existence – traditionalist, extremist and empiricist.

Traditional theory was propounded by Siphalus and

3 Gabo O.P., An Introduction to Political Theory, Mayur Paper backs, Noida (U.P.) 1998 P. 267 4 Badyal J.S., Political Theory, Raj Publshers, Jalandhar 1998, P. 61. 5 Fadia B.L., Political Science (Net Series) Sahitya Bhawan Publications, Agra, 2001, P. 27

94

Polymarks. He said that when a person pays his debts, behaves

friendly with his enemies and relatives, then he is said on the

way of justice. Extremist theory was propounded by

Thracymacus; according to him justice is the interest of the

mighty. Justice means to behave in accordance with the law.

Ruling people frame laws in their own interest by which they

fulfils their own interests. Gladkan propounded empirical

approach. He propounded that justice is the interest of the

weaker, he said that in absence of justice mighty people

commits attrocities on weaker people. So to restrict the

atrocities by mighty persons the weaker people made a mutual

agreement and framed rules to establish justice in the society.

In ancient Athens the fundamental basis of famous

philosopher PLATO was concept of justice. To establish Justice

Plato’s emphasis was upon the duties of citizens. For just

society he gave three classes viz. Philosopher king class, soldier

class and producing class. Plato made opinion when these three

classes discharge their duties honestly then the State system

itself becomes justful.

Aristotle, with the view of justice thought that in the

mutual behaviour of persons or in the allocations of values what

rules should be followed, with this Aristotle indicated the

existence of universal law or natural laws6

6 Natural Law: - Body of law supposed to be innate, discoverable by natural human reason, and common to all people. According to Thomas Acquinas natural law is the sense of right and wrong implemented in human by God – Webster’s International Encyclopedia, Trident Press International, 1991, P. 750.

which are beyond the

law of the country or law of any time and which are related to

whole human society. At that time it was considered that

common law is justful only when it is in conformity with the

natural laws.

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According to David Hume7 justice means following of

rules only because these rules are the basis of common interest.

So, common interest or common utility should be considered as

the only source of Justice. : Bentham, promoter of

utilitarianism, said that wording like ‘natural law’ fades the real

values .So Justice can be tried truly by its utility of which

formulae is ‘greatest happiness of greatest number’. Mill

accepted justice as the important part of social utility, Salmond

says justice means to provide everybody his share. According to

Prof. Merriam justice is the system of processes by which

everyone is given something, which is considered right to him by

the society Sabine’s view is justice is a bond which holds a

society together in a harmonious union of individuals each of

whom has found his life work in accordance with his natural

fitness and training.8

In modern period the concept of justice is not taken as the

basis of natural law or pure utility. No unanimity has been

derived upon the rules of natural law or upon the form of

natural right or public utility.

9 Every society has its concept of

justice which becomes the scale of measuring right and wrong

in the mutual behaviour of that society. So justice in itself is not

an absolute concept but a relative one. The concept of justice

changes with the changing pattern of circumstances and time.

Justice relates with values, legitimacy and ideals.10

7 Promoter of ‘Protection of Acknowledged rights’. He believed that in this way justice can be established – Gaba O.P., P. 250 8 Badyal J.S., Political Theory, P. 62 9 Gabo O.P., An Introduction to Political Theory, Mayur Paper backs, Noida (U.P.) 1998 P. 270 10 Fadia B.L., Political Science (Net Series), Pp. 26-27

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Since a well accorded or recognized definition of justice

cannot be given, so to understand its meaning it can be divided

into two parts, as in a broader sense and in a narrower sense.

In Broader sense justice can be taken as total conduct or

behaviour of human society. In this form it is known as good or

virtue. With moral, social, economic and political attitude it is

considered as the measuring scale to measure the rules, values

and conduct of justice-injustice, good-bad, religious-

antireligious, good behaviour and misbehaviour. In this broader

sense the justice has its place in the philosophy of Plato and

tristotle. Here concept of justice is considered as concept of

truth and morality. On this basis all the relations and conduct

of human are tested. Here justice is not related with human but

with social system.

The broader sense consists of mainly two thoughts – one

is that justice is eternal and absolute. Like truth justice is a

concept based on the unchanged and certain rules. Throughout

the religious testaments, (Gita, Ramayan, Vedas, Bible, Quoran,

Guru Granth Sahib etc.), philosophers like Plato, Augustine,

Thomas Acquinas etc. accept the principle of eternal & absolute

justice and do not accept that the concept changes with time

and circumstances. Second thought is that – concept of justice

is a relative concept which changes with time and

circumstances. Concept of Justice, basis of justice, rules etc

changes with the passage of time as well as with the changing

values of the society. In nineteenth century utilitarian

philosophers like Bentham, Mill accepted justice in this form.

They considered ascertainment of justice and injustice should

be according to the social circumstances. So in broader sense

justice is to set up a rapport or balance between the rights and

duties of individuals residing in the society. To meet every

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person his right is justice and just man is that who discharge

his duties regularly and properly.

In Narrower sense justice relates with law. Here, justice

is taken as process, in relation with individual that is to say

whether an individual is given proper justice or not. Also in this

attitude justice is seen with forms of framing law, constitutional

and unconstitutional law, courts, independent and impartial

judicial system, equality of every citizen before law and courts.

As Robert C. Tucker says that “The idea of justice connotes a

rightful balance in a situation where two or more parties or

principles are in conflict.” This attitude is mainly a legal attitude

of justice or in other words it is a Court-Brand justice.

Meaning of Justice during Mahabharata Period-

SANTIPARVA

Of all the eighteen parvas of the Mahabharata Santiparva

is the most enormous one. It further has three sub-parvas

namely Rajdharmanusasanaparva, Aapaddharmaparva and

Mokshadharmaparva. On the whole, it consists of 365 chapters

and 13,716 number of slokas.

RAJDHARMANUSASANAPARVA

This sub-parva consists of 130 chapters i.e. from 1st to

130th chapter and it has number 4716 slokas. The sages such

as Vyasa, Narada, Devala, Kanva and others went to meet

Yudhishthira, who was distressed due to the loss of his brothers

and relatives in the war of Kurukshetra. All those sages pacified

the grief-stricken king. At the outset, Narada enquired

Yudhishthira about the reason for his sorrow. Then

Yudhishthira said, ‘O Maharshi, I heard that Karna who was

born to Kunti secretly, was our elder brother. Out of ignorance

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and as I was greedy towards the kingdom I made my brother to

kill another brother. It is burning my limbs. O Narada! Why the

wheels of Karna’s chariot were caught up in the ground? How

was Karna cursed? Please tell me.’ When Yudhishthira asked

thus, Narada narrated the details of Karna’s curse, ‘The gods

have thought to send all the Kshatriyas of the earth to the

heaven by sanctifying them with the strike of their weapons.

Hence, they made Kunti to beget a splendorous child through

the Sun god, who was the main culprit of the war. Hence, that

boy Karna developed jealousy with Pandavas and made

friendship with Duryodhana. Having known his wicked mind,

Dronacharya suggested him to go to Parasurama. Karna went to

Parasurama by telling him a lie that he belonged to the clan of a

Brahmin called Bhrugu. One day Karna mistook a sacrificial

cow of some Brahmin as a deer and killed that. That angry

Brahmin cursed Karna as, ‘O mean among the men! The earth

will pull in the wheels of your chariot, in your end fight with

those whom you envy. At that time, when you will be

inattentive, your enemy will cut down your head.’

Having convinced with his service Parasurama taught him

using the weapon of Brahma. One day, when Parasurama was

tired, he slept for a while putting his head on Karna’s lap. At

that time, a flesh-eater insect bit Karna’s thigh. Not to disturb

his preceptor’s sleep, Karna bore the unbearable pain. But, with

the touch of the blood his preceptor got up. He became angry

when he came to know that Karna was the son of a Charioteer.

So, he cursed him as, ‘O fool! You will forget the weapon of

Brahma, when in the battle field you will fight with a warrior,

who equals you.’ Having obtained the weapon of Brahma from

Parasurama, Karna came to Duryodhana and lived happily.

With the help of Karna, Duryodhana abducted the daughter of

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Chitrangada, the king of Kalinga in a court of self-choice of

marriage. The great warrior Karna also defeated Jarasandha. O

king! Thus your brother Karna was cursed. He was killed in the

battle field. Hence, you need not lament for him.’ Yudhishthira

who was very much distressed said thus, ‘O mother! Having

maintained secrecy in this matter, you gave me lot of pain.’

Later he cursed all the women of the world that from then

onwards no woman can retain any secret in her mind. As he

was very much distressed, he became detached towards the

royal pleasures and life. He said to Arjuna, ‘you rule this earth. I

don’t have any desire on kingdom and pleasures. Having

abandoned everything and getting relieved from the bindings I

will go to the forest.’ Having heard the words of Yudhishthira,

Arjuna rejected his opinion and instructed him the principles of

administration and encouraged him to perform the sacrifice.

Bhimasena also rejected his opinion and instructed him to

follow his duty. Later Arjuna narrated him the conversation of

Indra, who was in the form of a bird , with the children of the

sages and instructed him to follow the principles of a house-

hold. Nakula told him the importance of the principles of a

house-hold. Sahadeva instructed him as, ‘O Bharata! The two-

letter word ‘mama’ (my) is death and the three-letter word ‘na

mama’ (not mine) is eternal and the object of the Brahman.

Both are within us. O king! We should rely upon the path that

was followed by our ancestors.’ Draupadi also encouraged

Dharmaraja to rule the earth looking after the people by

following the path of Dharma. While narrating the importance of

royal punishment, Arjuna said, ‘If a Brahmin commits mistake,

punishment through speech is enough for him. Shouldering the

responsibility is a suitable punishment given to the Kshatriya.

Imposing fine is the punishment given to a Vysya. But it was

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said that a Sudra is devoid of punishment. When the

punishment is imposed in a proper way the sin and deceit

cannot be seen. Hence, o king! Understand the importance of

punishment and while following that in a best way, protect the

subjects.’ Bhimasena made him recollect the difficulties that

were faced at the time of their incognito and instructed him to

rule the kingdom. He also encouraged him to perform the

sacrifice called Ashwamedha, while giving donations as per the

scriptures. Yudhishthira condemned the words of Bhima and

said, ‘O Bhima! Unhappiness, negligence, pride, attachment,

uproar and other sins have entered you. Hence you are

desirous of kingdom. Only the intellect and pious obtain the

Supreme Brahman. Others cannot.’ While Yudhisthira was

refuting the words of Bhima in this manner, Arjuna further tried

to stop him in becoming a saint by narrating the conversation of

Janaka, the king of Videha and his queen. Thereafter,

Devasthana, a pious man said that it would not be fair to

abandon the kingdom that was won over through Dharma and

encouraged him to perform the sacrifice. Arjuna, who was very

much distressed, explained him the importance of the principles

of Kshatriyas. Sage Vyas praised the life of a house-hold and

asked him to follow that. While answering to the questions of

Yudhishthira he narrated the tale of pious Sankha and Likhita

and told that holding the authority is the utmost principle of a

Kshatriya. The sage further said, ‘O Bharata! Rule this earth

like Yayati. Your pious brothers underwent lot of sorrow during

the period of incognito. First you experience the comforts of

Dharma, Artha and Kama with your brothers and then go to the

forest. At the very outset, you perform the sacrifices such as

Sarvamedha and Ashwamedha. To accomplish the work, time is

the general cause. O king! Why are you lamenting like a fool?

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Grief has thousands of abodes. Happiness has more than

thousands of opportunities. Only a fool gets influenced to that,

but not a scholar.’ Thus, Vyas convinced him. In this context

Yudhishthira said to Arjuna, ‘O Arjuna! You think that nothing

is more than wealth. A poor person will not get any kind of

happiness. But this is false. Many people accomplish their

desired object by learning Vedas and by performing sacrifices.’

Yudhishthira, who was very much distressed as he lost his

brothers and relatives in the battle, asked permission to

abandon his physical body. Sage Vyasa explained Yudhishthira

by narrating him the conversation of sage Ashma and Janaka.

Lord Srikrishna also pacified Yudhishthira, who fell in the ocean

of sorrow. In this context, he narrated the story that was told by

sage Narada to king Srunjaya, who was distressed by the sorrow

of his son’s death. Yudhishthira asked Srikrishna, ‘O lord! Why

did sage Parvata give a son named Kanchanashthivi, to the king

Srunjaya, who was distressed by the sorrow of his son’s death?

Why did he die? Why he was named as Suvarnashthivi? I

would like to know all these.’ Srikrishna narrated him this tale.

While convincing Yudhishthira, sage Vyasa said thus, ‘O king!

You have protected Dharma by slaying the trespassers of

Dharma. Hence, do not grief. There is no harm in killing a

person of a family, because of which the sorrow of that family is

removed. Similarly, if a nation obtains peace by destroying a

family, then it is not a wicked deed by doing so.’

By listening to the instructions of Lord Srikrishna, Sage

Vyasa and other great personalities, King Yudhishthira

abandoned his mental agony and having confirmed his duty

went to Hastinapura. When Pandavas were entering into the

city, the city-dwellers welcomed them. A demon named

Charvaka, who was a friend of Duryodhana, stood in the midst

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of Vedic Brahmins, in the form of mendicant and blamed

Yudhishthira. When the Brahmins came to know his intrigue,

they killed him. Yudhishthira was crowned. Whomever he

considered as eligible for the post, he appointed them in that

particular post. King Yudhishthira performed death ceremony of

his brothers and relatives who were killed in the battle-field.

After taking the permission of the king, every body went to their

houses. Next day Yudhishthira went to Srikrishna who was

indulged in meditation and asked him, ‘O lord! On whom you

are concentrating? It’s quite amazing.’ Then Srikrishna replied,

‘O king! Bhishma, who is lying on the bed of arrows, has

become now like a flickering lamp and is meditating upon me.

Hence, my mind is retained in him. O the best among the

Bharata’s descendants! He knows the matter of the past,

present and future. Followed by his actions, when he obtains

the heaven, this earth lacks luster like the night of a new moon.

Hence, he should certainly see you.’ Later, Srikrishna ordered

Satyaki to arrange for his chariot. Bhishma who was in the

midst of Vyasa, Narada and other sages, praised Srikrishna,

which is called as ‘Bhishmasthavaraj’. Lord Srikrishna went

near Bhishma through the strength of Yoga and having

imparted him the divine knowledge, he returned back. When

Bhishma completed his praise on Lord Srikrishna, the sages

who were present there, praised Bhishma in a choked voice.

Srikrishna and Pandavas reached Kuruskshetra. They

saw that Bhishma lying on the bed of arrows. The moment he

saw Srikrishna, he saluted him. Srikrishna said, ‘O Bhishma!

When the sun god moves from the south to the north you will go

to the best worlds. Having gone there, the scholars will not

return to this world. When you go to the fore worlds, your entire

knowledge of this mortal world will be vanished. Hence, by

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narrating the words of Dharma and Artha, remove the agony of

Yudhishthira. Due to the trouble with his body and flaccid

senses, Bhishma expressed his inability. Lord Srikrishna gave

him a boon of removing his pain. At the time of sunset,

everybody took permission from Bhishma and moved to their

places. Next day morning, Srikrishna came there along with

Yudhishthira and others. When Yudhishthira asked Bhishma,

he explained him the royal principles. He further said, ‘O child

Yudhishthira! Without the four principles of human object,

purpose of the king cannot be accomplished only with destiny.

So you should always endeavor to obtain the four principles of

human object. O Yudhishthira! Whatever I said to you is like the

butter of milk of principles of polity. At the time of sunset,

everybody took permission from Bhishma and went to

Hastinapura. Thereafter, next day, after finishing their rituals in

the morning, they came back to Bhishma again. Yudhishthira

asked Bhishma about the etymology of the word ‘Raajan’ and

asked about its usage. Bhishma said, ‘O Bharata! At the very

outset of Satya yuga, there was neither a kingdom, nor a king,

nor the punishment and nor its giver. By following Dharma, all

the subjects were protecting each other. After few days, delusion

shadowed them and they found that it was difficult to protect

each other. When they lost conscious on dos’ and don’ts

dharma has declined and people became greedy. When they

were in an endeavor to attain the unattainable lust has

surrendered them. As a result, they went under the control of

attachment.

Thus, in the world of human, dharma and Vedic actions

started declining. When the actions of sacrifice were lacking, all

the gods were scared and they went to the refuge of Lord

Brahma. Having thought about the welfare of gods, Lord

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Brahma with his intellect wrote the science of morals in one

lakh chapters. It contains a detailed description of Dharma,

Artha and Kama. That treatise is popularly called Trivarga. The

fourth principle of human object is Moksha.’ Thus, Bhishma

explained the science of morals and the principle duties of a

king. He further said that when a king properly uses the policy

of punishment once again Satyayuga begins on this earth. King

is the cause of the creation of Krta, Treta, Dvapara and Kali

yugas. Administration followed by Dharma is the main duty of a

king. He narrated the importance of the kingdom to

Yudhishthira, who was detached towards the kingdom. In this

context, Bhishma narrated many sub-tales.

AAPADDHARMAPARVA

This sub-parva comprises of forty-three chapters that fall

from 131st chapter to 173rd chapter and it has 1649 number of

slokas.

Yudhishthira asked Bhishma thus, ‘O Bharata! What

shall a king do, if enemies attack on him, who is in troubles by

the decline of his army, wealth and prosperity?’ Then Bhishma

said, ‘O king! If the enemies are endowed with Dharma and

Artha or if they follow the path of Adharma also, it would be

better to make treaty with them.’ While explaining the science of

polity, Bhishma said thus, ‘O king! Having relied upon the

words of some one, a king should neither punish anyone nor

should honor anyone. It is the best principle to follow the

footsteps of the best persons. It is necessary for a king to collect

the treasure. With the treasure only, Dharma and the kingdom

flourish. So far, nobody has ever directly seen the result of

Dharma or Adharma. Hence, a king should always endeavor to

obtain the strength. Strength is better than Dharma because

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the latter is relied upon the former. A king should not take the

wealth of the people performing sacrifices. He can take the

wealth of thieves and workless people. If a king foresees the

troubles and plans for its remedy, he is called as a person

possessed of presence of mind. In this context, he narrated the

story of three fishes named Dooradarshi, Tatkaalajna and

deerghasootri. By seeing the opportunity of accomplishing the

work, an intellect makes treaty with the enemies and enmity

with friends. As a result, he obtains a great result.’ He supports

the same by narrating the tale of a cat and rat. While telling to

be always careful with the enemies, he narrates the

conversation of a king called Brahmadatta and a bird named

Poojani. Yudhishthira further asked, ‘O grandfather! Decline of

Dharma is seen in the world. The thieves and thugs place

obstacles in the path of Dharma. How one should live in such

situations?’ While narrating the policy to be followed at the time

of troubles, Bhishma narrated an ancient story that is in the

form of conversation among Bhaaradwaja, Kanika and a king

named Shatrujaya. While narrating the story of Vishwamitra

and Chandala, he explained about how a Brahmin should lead

a life at the time of difficulties. While instructing the Dharma,

he said that even at the time of difficulties, one should suppress

a wicked and protect the virtuous. When he was asked by

Yudhishthira, Bhishma told about the Dharma that is obtained

by protecting a refugee. In this context, he narrated a story,

where a pigeon protects an enemy that comes as a refugee.

‘First Parasurama narrated this story to king Muchukunda.

Once, a hunter was wandering in a deep forest. His business

was to kill the birds and sell them in the market. Once when he

was wandering in the forest, there was a heavy rain. The path of

the forest was immersed with rain water. He became as if he

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were fainted due to cold. He became distressed and roamed here

and there. At that time he saw a pigeon, which was distressed

and fell on the ground due to cold. Pitiless hunter took it and

placed it in a cage. Though he himself was suffering, he once

again committed a sin. Later he took a shelter of a tree and

slept under it during that night. A pigeon along with its wife

lived on that tree. His wife went out in the morning for food and

didn’t return back. The pigeon was worried about its wife and

was lamenting thus for its wife- ‘Indeed the house is not a

house. The house-wife is the house. Without her the house is

considered as a forest. My wife is a devout wife who always

follows the best vows. She never eats food unless she serves me.

She sleeps only after I sleep. If I am happy she too rejoices. She

always moves in the welfare of me, her husband. In this world,

there is no other relative than a wife. There is no other refuge

than a wife. There is no other person than wife, who helps in

gaining Dharma.’ By listening to the grief of her husband, the

pigeon that was confined in the cage said thus, ‘I am very much

fortunate that my beloved husband is praising my virtues.

When the husband is contended all the gods will be satisfied on

the women.’ Having thought thus, she said to her grief-stricken

husband, ‘O the lord of my life! Now you are blessed with sons.

So don’t be attached to your body and help this hunter who is

sorrowful. You don’t lament for me. You may get another lady to

lead the journey of this body.’ Having heard the virtuous words

of her husband, the pigeon was very much delighted and having

honored the hunter said thus, ‘what kind of service can I do for

you? Even an enemy may come to one’s house, but one should

give proper hospitality to that enemy. A tree will not remove

shadow from him, whoever comes to cut it. To provide proper

hospitality to a guest is the duty of a house-hold.’ To take away

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his cold, the pigeon brought fire from the house of a black-smith

and lit the fire by arranging dried leaves. Then the hunter said,

‘I am tormented by hunger. I would like to eat food.’ But the

pigeon didn’t have anything to serve. Having arranged few more

dried leaves, he lit the fire once again and fell into the fire.

Having seen this, the hunter felt sad and after blaming his

deeds he lamented a lot. He relieved the pigeon from the cage

Even that she-pigeon also fell in that fire. Both the birds

obtained the heaven, because of their good deeds. He then

decided to follow the path of Dharma, and took the refuge of

terrible vow and followed the path of salvation. O Yudhishthira!

To serve a refugee is the utmost principle.’

Yudhishthira asked, ‘O the best among the Indians!

Unknowingly, if one commits a sin, then what is the remedy to

get rid of that?’ While answering to this question, Bhishma

narrated the tale of sale Indrota and Janamejya. Yudhishtir

asked, ‘O grandfather! Did you ever see or hear about anyone

who got back to life after the death?’ While answering to this,

Bhishma narrated the story of a Brahmin child who obtained

life once again. A child of a Brahmin died in his childhood only,

as he was troubled by balagraha, an evil force that troubles

children. His relatives took his dead body to the grave-yard and

started crying. An eagle that was hungry asked them to return

back by telling them various reasons. A wolf that was hungry

tried to stop his relatives. Both of them were hungry. To fulfill

their desire, those two told various reasons to the relatives of

that dead body. The eagle told that the sun was set. The wolf

told that it was not. To fulfill their desire both of them were

giving some reasons, while referring the sciences. The relatives

stood there and while listening to both the arguments the boy

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got a life with the blessings of Lord Shiva. He also gave boon to

the eagle and wolf to get rid of their hunger.

Yudhishthira asked, ‘If a strong person attacks a weak

person how that weak person should behave?’ While replying to

this, Bhishma narrated the conversation of Shaalmali tree and

wind and said, ‘A weak person should never have rivalry with a

strong. In this world, no other thing is as equal to as intellect in

human. O king! One should forgive the opposition done even by

a child, stable, blind, deaf and strong persons. Eighteen army

cops also cannot equal with the strength of Arjun. O king! I

have explained in detail about the polity and the principles to be

followed at the time of difficulties. What else you want to listen

now?’ Then Yudhishthira questioned, ‘O the best among the

Bharatas! What is the source of a sin? How is it formed? Then

Bhishma said that greed is the source of the sin and explained

all the mistakes that are caused by it. While explaining

ignorance, he said that attachment, envy, delusion, happiness,

sorrow, haughtiness, lust, angry, pride, fatigue, lethargy, desire,

heat, being jealous of other’s growth, performing sins come

under ignorance. Ignorance and over greed are considered

same, as the result of both is same. If one abandons greed, one

will obtain the worldly and divine bliss. Control on senses is the

only remedy to get rid of greed.

Bhishma explained the importance of penance and truth.

He explained the origin of thirteen flaws such as anger, lust,

grief, delusion, desire of doing bad, desire to kill others, pride,

greed, malice, jealousy, blame, envy and pity and later

explained a remedy to destroy them. He also explained the

nature of a wicked person, different kinds of sins and their

atonement.

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After the questionnaire of Yudhishthira, Nakula asked

about the origin of sword. Bhishma explained the origin of

sword in detail. Having said thus, Bhishma remained silent.

Having gone home, Yudhishthira discussed with his brothers

and Vidura about Dharma, Artha and Kama. Later,

Yudhishthira came to Bhishma and asked him about Dharma.

Bhishma narrated the tale of Gautama, who was a sinner,

treacherous to a friend and ungrateful.

MOKSHADHARMAPARVA

This sub-parva consists 192 chapters i.e. from 174th

chapter to 365th chapter and has 7351 number of slokas in it.

Yudhishtira asked, ‘O grandfather! How should one get rid

of the grief born out of loss of wealth or death of wife, son or

father?’ While answering to this, Bhishma said about the

conversation of Senajith and a Brahmin. Through the

conversation of son and a father he told the principles of the

truth and Dharma and the cause of welfare. While narrating the

instructions of a Brahmin named Sampaka, he told the

importance of sacrifice. After narrating the story of sage Manki,

he gave the deatails of the sacrifice of all desires and remedy to

obtain Lord Brahman. Bhishma said that nothing is greater in

this world than intellect. Once upon a time a merchant, who

was proud of his wealth, hit Kashyapa, a pious saint, with his

chariot. That sage who was troubled moved to commit suicide

and said that in this world, life of a penniless person is futile.

Having seen that sage, who was about to commit suicide, Indra

came to him in the form of a wolf and instructed him that one

should not commit suicide, after getting the best and

unattainable birth like this. Through his divine knowledge, sage

Kashyapa understood that it was Indra. Having worshipped

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him, he took his permission and returned to his house. While

answering Yudhishthira’s question, Bhishma said about the

result of good deeds such as charity, sacrifice, service to the

teacher etc., and also told the result of bad deeds. Through the

conversation of Bharadwaj and Bhrugu he explained in detail

about the origin of animate and inanimate world and the nature

of five elements. While clarifying the doubt of sage Bharadwaj,

Brugu said, ‘Lord Vishnu first created Mahath (the second of the

25 principles of Samkhyas). From that he created conceit. Lord

in the form of this self-conceit created space. From space, the

water was created and from the water fire and from the fire the

wind is created. With the union of fire and the wind this earth

was originated. Later lord Vishnu created a divine lotus. From

that lotus, Brahma the treasure of Vedas appeared. He is also

popular as conceit. He is the creator of all the souls and the

creatures.’ Thus Bhrugu explained Bharadwaaj in detail about

the sequential process of origin of creation and the principles of

four ashramas. After explaining all this to Yudhishthira,

Bhishma further asked him, ‘O king! What else you want to

listen?’ Then Yudhishthira asked about the mode of behavior.

Bhishma said that indeed a person with good behavior is the

best. One should not sleep at the time of sun-rise. One should

pray to the Sun god everyday. After washing the hands, feet and

face and by sitting towards the east one should eat the food.

One should remain silent while eating the food. Whether the

food is tasty or not, one should eat the food in a pleasing way.

One should never blame the food. It is laid down that human

beings should eat only in the mornings and evenings. There is

no rule to eat in the middle. Whoever follows this, will get the

result of fasting. Bhishma said that Dharma is the source of

human beings. It is indeed ambrosia for the gods in the heaven.

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After the death a virtuous person experiences happiness, due to

the strength of Dharma. He explained about the spiritual

knowledge and meditation. Having said about the importance of

worship and meditation he added further of their result.

Through the conversation of Prajaapati Manu and sage

Brhaspati, he explained about the reality of the Self and the

path to attain the Supreme Brahman. While narrating the

greatness of Srikrishna, he said that the almighty has created

the five elements such as earth and others. Having created the

earth he made his abode on water. By the contraction he bears

all the creatures and he is indeed the abode of the past and the

future. Thereafter, a divine lotus appeared from the naval of

Srikrisha. Brahma was born from that. Thereafter, Srikrishna

created the earth. Later, he originated all the four castes and

made the creator as their leader. Later, he created the

creatures. In the beginning, human used to hold the body as

long as they desired. They were not having the fear of lord

Yama. Without consummation, only with the will, people used

to beget the progeny. During Treta Yuga, people begot the

progeny only with touch. The principle of copulation was seeded

in the eon of Dwaapara. At the junction of Treta and Dwaapara

eons, the kings had the desire to fight. O the best among

Bharatas! One shouldn’t consider Keshava as human. He is the

Supreme Lord, who is beyond thought.

Having asked by Yudhishthira, Bhishma explained about

god Brahma and the great sages. Through the story of

conversation of the preceptor and disciple, he explained the

form of spirituality. Having explained the state of the individual

soul, he explained the means of salvation. He mentioned the

form of the self that differs from the body. Yudhishthira asked,

‘O best among the Bharatas! Please introduce that great person,

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who while leading the life of a house-hold was detached with all

the worldly bonds.’ In this context he narrated the spiritual

conversation of the daughter of Devala, a Brahmanical sage and

her husband Svetaketu. Through the conversation of Srikrishna

and Ugrasena he depicted the virtues of sage Narada. Bhishma

narrated the ancient history that was previously instructed by

Lord Vyasa, when asked by his son Sukadeva, about the form of

creation, dissolution and the Time. Fifteen minutes constitute

one Kaashta (solstice), one of the minute time units of ancient

India and thirty solstices constitute one kalaa, one of the

minute time units of ancient India. Thirty kalaa comprises of

one moment. Thus the one-tenth part of kalaa is collected. That

is, thirty kalaas and three solstices comprise of one moment.

Thirty moments make one day and one night. Thirty days and

nights make one month and twelve months make one year. The

Sun god divides the duration of day and night of this human

world. The night is meant to sleep and the day to work. The

duration of one month of human beings is one day and night for

the ancestral cult. The fortnight of full moon is meant to work

and the fortnight of dark moon is the night to take rest. One

year of human is a day and night for the gods. The period of

Uttarayana is their day time and the period of Dakshinayana is

their night. Four thousand years make a Satyayuga for gods, in

which, four hundred divine years of evenings and four hundred

divine years of part of the evenings are there. On the whole the

eon of Satyayuga or Krtayuga constitutes 4,800 divine years.

The eon of Treta comprises 3,600 divine years, the eon of

Dwaapara is 2,400 divine years and the eon of Kali is of 1200

divine years. Thus, 12,000 divine years constitute the period of

four eons. Thousand times of these four eons make one day and

night of Lord Brahma. In the beginning of his day, Brahma

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creates the creation. The night is the time of dissolution. Then

he merges everyone in him and stays in the state of

contemplation (yoga nidra). He awakes when the night passes

away. Then the creation begins. Thus, Bhishma narrated all

those that were said by sage Vyasa.

Having asked by Yudhishthira, Bhishma spoke aaobuat

the form of Dharma and Adharma. In this context, he narrated

the devout conversation of sage Jajali and a merchant named

Tuladhara. Having followed the ancient histories, he narrated

the importance of the principle of non-violence. While telling the

context of eradicating the greed for wealth, he narrated the

conversation of sage Mandavya and Janaka, the king of Videha.

Having depicted the battle of Indra and Vrutrasura, he narrated

about the origin of fever. He also mentioned the destruction of

the sacrifice of Daksha done by Mahashiva and Daksha’s

narration of verse of thousand names of Shiva. Yudhishthira

asked, ‘O grandfather! What are the auspicious deeds that

bestow welfare both in this and the other worlds?’ While

answering to this, Bhishma narrated the conversation of the

king Janaka and sage Parasara. He also said that if one follows

Dharma as laid down by the scriptures then one would obtain

welfare in this and the other worlds. Through the conversation

of Brahma, who was in the form of swan and the group of

Saadhyas, Bhishma instructed the path of actions that relieve

fast the human from the bonds. Having asked by Yudhishthira

he gave the detailed account of the difference between Sankhya

and Yoga and explained their nature and importance. He also

explained him the mode of detachment that was obtained by

Sukadeva, son of sage Vyasa. He narrated the results of

donation, sacrifice, penance and service to the teacher. He

explained the birth details and the Vedic education of Sukdeva.

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Through the tales he explained the importance of human and

Narayana. He depicted the incarnation of Hayagreeva of Lord

Vishnu. Through the conversation of Janamejaya and

Vaishampayana he told about sage Vyasa. Vaisampayana said

to Janmejaya, ‘O king! Devi Satyavati begot sage Vyasa as her

son through the sage Parasara in an island that is at the bank

of river Yamuna. He is the incarnation of Lord Narayana. He

originated as sage Vyasa in the form of his son.’ Having heard

this, Janmejaya asked thus, ‘O sage! In the previous parva you

have said that the son of Vasishta is Sakti and the son of Sakti

is Parasara and the son of Parasara is Vyasa. But now you are

telling that he is the son of Narayana. What is the real sense of

this?’ Then Vaishampayana said, ‘o king! Sage Vyasa, the

treasure of Vedas first lived at Himalayas. He, the treasure of

penance wrote the history named as The Mahabharata. His five

disciples namely Sumanta, Jaimini, Paila, Vaisampayana and

Sukdeva used to serve him. He used to teach them the Vedas,

its parts and the Mahabharata. Once, when he was asked by his

disciples, he narrated the details of his birth through lord

Narayana. At the very outset of seventh kalpa, lord Narayana

originated Brahma seventh time from his naval of lotus. He

ordered him to create many living beings. Thereafter, having

decided to reduce the burden of the earth from the demons, the

lord has decided to incarnate in many forms and created his

many forms. Thereafter, through the word ‘Bho’ Srihari has

uttered Saraswati. As a result of this, the son of Saraswati

named ‘Apantharatama’ was originated. The lord said him to

collect the Vedas separately. As per the orders of the lord, he

divided the Vedas. Srihari who was satisfied with him said thus,

‘O child! In all the ages of Manu, you will be the profounder of

Dharma. When the eon of Kali arrives, the color of your body

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turns black. By all means, you will not be relieved from

detachment. By the blessings of Maheshwara, your son will

become the form of the supreme by being detached. Sage

Paraasara will be your father. Through that sage only, you will

get your birth through a lady who stays in your father’s house.

You will be called as Kaaneena. The lord said thus to the sage

Apantaratama, the son of Saraswati and asked him to indulge

in his work.’ Vyas said, ‘in this way, by the blessings of the lord

I was first originated as Apantaratama and by his orders I

further took the birth as a progeny of Vasishta and became

popular.’ When asked by Yudhishthira, Bhishma, through the

tales instructed that Dharma is the utmost principle to those

who follow the Ashramas.

One’s search for the meaning of justice in Plato’s “Republic”

would finally lead to two definitions:

• Justice is Harmony. (book 4, 434c)

• Justice is Doing one’s own job. (book 4, 443b)

Finding these two phrases, however, is hardly enough to

get a clear sense of what justice is. Plato offers two main

analogies to examine the definition of justice. The division of

parts in the soul as well as the parts of the state; We would now

examine the structure of the soul. The soul is divided into three

parts, the appetitive, spirited and the rational. The appetitive is

the part “with which it lusts, hungers, thirsts and gets excited

by other appetites” (4, 439d). It is the part of the soul that can

be hungry for immoral gratification and has no rational

consciousness in its desires. That leads us to the need of

defining another part in the soul, the one that can keep the

appetite restrained, the part that enables

the soul to differentiate between good and bad. The rational part

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is the part in the soul that calculates, makes balanced decisions

having the good of the whole soul as its interest. The third part

is the spirited, the part of the soul that is courageous, vigorous

and strong willed. The spirited naturally, if “it hasn’t been

corrupted by a bad upbringing” (4, 441a), allies with the rational

part.

By the account of the parts of the soul we are shown how

a soul has different wills, yet in order for a soul to stay in the

just path it must have some sort of hierarchy. Plato describes

the spirited part as the courageous ally of the rational part

which has the control over the appetitiveve part. Although the

description of the soul might furnish an idea regarding the

definitions of Justice I mentioned above, we should first

examine the structure of the state.

The state is also divided into three types of people, the

workers, soldiers and the rulers. It is obvious that that sort of

division seems awkward when placed over our own capitalist

society. We must keep in mind that in the republic that Plato is

describing each individual is directed by vast education and the

utmost care towards the work he could do with excellence. The

children in the republic are separated from their parents at

birth and therefore get the same equal chance of becoming

workers or rulers without any prejudice regarding their

upbringing or family background, rather, they are evaluated

personally, purely according to their natural qualities.

The workers are the people that are best fitted to practice

a specific form of labor. The part of the Society whose role is to

provide food, clothes and any other necessities the state

requires. They are required to be moderate and obedient to their

ruler.

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The soldiers are the people that are best fitted to fight,

people that are spirited and that pass the tests of the state by

holding firmly to the patriotic attitude needed in order to defend

the state from foreign and domestic enemies. They most posses

the virtue of courage and be well educated in order to stay loyal

and not harm the citizens although they are naturally stronger.

The rulers are people which posses the virtue of wisdom, they

must not seek the glory and fame of being a ruler rather it

should be perceived as the duty of those who are fitted to rule to

take on the burden of ruling their state. The rulers are people

that have the interest of the whole in mind, they love their state,

they understand its rules and therefore will do everything within

their power to preserve it.

The division of people into pre-determined types in the

state is assumed to be done truthfully, according to their

natural abilities. To soldiers who cannot understand what

possessing wisdom means (because they lack it) or to workers

that lack both courage and wisdom, Plato uses the “noble lie”.

That is the idea that mother nature creates people out of three

materials, gold, silver and bronze when obviously the golden

people are fit to rule, the silver are fit to guard and the bronze

are best naturally fitted to work.

Both the accounts have a similar structure, Plato claims

that justice is the same in the soul and in the state. The

resemblance suggests that both the workers and the appetitive

share the virtue of moderation for they have to be moderate in

their desires. Both the guardians and the spirited share the

virtue of courage in order to guard the whole. Finally, both the

ruler and the rational share the virtue of wisdom in order to

control the workers and the appetitive, with the help of the

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guardians/spirited, all in one goal that is the good of the whole

state/soul.

Would a soul that lets the appetitive part take over and

commits criminal acts regardless of their consequences or

allows the spirited to burst in irrational anger be considered a

just soul? This rhetorical question supports the definition of

justice as harmony. The condition in Which the rational rules,

the spirited guards and the appetitive remains moderate while

they all agree to this condition out of understanding that that is

the best for the whole.

Could a state in which the cobbler rules, the guardian is a

farmer and the natural ruler plays the role of a soldier be a good

and just state? We must understand that in Plato’s state there

will be no mistakes in the division of The classes. In order to

understand the idea of a just state we must consider that each

individual is practicing the very best activity he is naturally fit

for. That society has the most talented cobblers, the most

fearsome warriors and the wisest ruler, each practicing their

part with excellence that is considered a virtue. Therefore

contributing to the virtue of the whole state. In the analogy of

the state Plato supports the definition of justice as “doing one’s

own Work”. It becomes obvious that in order for justice to

remain in the state each person has to do his own work and not

meddle with another’s.

Now that we have found and understood Plato’s definition

of justice, the question that inevitably has to be asked is how

could this justice exist. In other words, why should the workers

stay in their own work or why should the appetitive obey the

rational. The answer to that comes in the form of both

understanding and control. Ideally, all the parts know that

maintaining the harmony is good for all and for the exception

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there are the guardians and the spirited to help maintain order.

The main problem is yet ahead, who should be the rulers, who

could be wise enough to rule and to keep the interest of the

whole in mind?

To that Plato responds with his belief that justice will not

exist in its full until the philosophers became kings and the

kings became philosophers.

What Plato claims is that a king could rule in a just

manner, therefore maintain justice, only if he has knowledge of

the true form of justice. That is, true knowledge of the forms.

The forms represent the ultimate truth, the way things really

are in a more knowledgeable sight then the one offered by

science.

In order to explain what the definitive truth is, Plato uses

the analogy of the divided line. A vertical line, representing the

condition of the soul, is divided into two unequal subsections.

The low subsection is smaller and represents the visible, the

high subsection represents the intelligible. Both subsections are

divided again in the same ratio whereas the high subsection in

each is longer. The lowest condition of a soul, be it out of

ignorance, is the lowest in the visible. Consisting of images,

shadows and the mere reflections of the objects they portray.

This stage of the soul is regarded as nothing more then

imagination. The second stage, still in the visible, consists of

objects that previously were only known by their shadows and

now, that the soul is in the stage of belief, it can see the objects

as they really are (confined to the visible aspect). The third stage

comes out of investigating, that is when the soul reaches for the

reason things are and makes

hypothesis based on the objects discovered in the previous

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stage. This condition of the soul is in the intelligible realm,

consists of mathematical entities and is referred to as a stage of

thought.

The fourth, and most tricky part of Plato’s analogy, is the

understanding of the forms. In this stage the soul reaches an

understanding far beyond the stage of thought, an

understanding of the true forms. The true form of justice is one

of them. Only after enormous difficulty and vast education can

a soul reach this level of understanding. By the time

philosopher-king’s soul reaches that intellectual height of

understanding he is no longer interested in the common

rewards of fame and fortune, rather he is occupied with the true

forms and seeks to guide his people towards the truth and

justice.

Once acquiring this knowledge of the forms, and only

then, can a ruler be fit to rule in a wise manner for he is able to

truly put the interest of the whole as his own. Thus, ruling in a

manner where justice exists and is carefully preserved.

In his theory of justice, Plato defines justice in the two

ways we have examined earlier. Supporting those definitions by

the parts in the state and the soul and their interaction. The

way justice should be is shown clearly both in the state and n

the soul and then comes the claim regarding the philosopher-

king which is the only combination of a ruler that is fit to rule

both in the sense of a just state or a just soul.

Social, Economic, Political and Legal aspects of

Justice

Social Justice:

121

The meaning of social justice is absence of any discrimination in

the society and availability of opportunity for development and

progress to all classes and individuals of the society and

freedom to follow own customs, traditions, religion belief and

faith.11

Article 14 provides for equality before law, Article 15-18

provides for the eradication of discrimination, making

availability of equal opportunity in education and public

services and the abolition of untouchability.

In the preamble of Indian Constitution a declaration has

been made as to the establishment of social justice, the glimpse

of which is in the Article 14-18 and 23-30 of constitution.

12

11 Fadia B.L., Indian Government and Politics, Sahitya Bhawan Publications, Agra, Pp. 46

12 Basu D.D., Constitution of India – An Introduction, Prentice Hall of India Pvt. Ltd., Delhi, 1993, P. 89

Article 15

prohibits the State to discriminate any citizen on the basis of

cast, creed, sex, religion, place of birth etc.

With this it is directed that no restriction, limitation or

inability can be imposed on any citizen on the basis of religion,

cast, creed, sex, place of birth etc. to use public places like

wells, ghaats, roads, etc. Exceptionally State is allowed to make

special provisions in favour of women, children, SC, ST and

educationally and socially backward classes.

Article 23-30 also provide a means to achieve social

justice. According to Article 23 restriction on trade of human

like slavery, sale and purchase of women for prostitution and on

beggar has been imposed and employment of children below the

age of fourteen years in the mines, factories and other

hazardous works has been prohibited.

122

In Article 25-28 citizens are given religious freedom, and

in Article 29-30 rights of education, culture, language and script

are protected. So that every individual and group of individuals

especially minorities can feel security as regards to their

religion, faith, worship, holy places (like temple, mosque,

guradwaras, churches, etc.), language, script, culture and can

get common opportunities of its progress and prosperity.

Thus Indian Constitution elaborately provides a way to

social justice.

Economic Justice: -

According to Fabian Socialist – Economic justice means

minimum need of every individual must be fulfilled.13

This kind of justice is seen with two perspectives.

Liberalists take it as to meet the poor class its basic needs like

food, cloth, shelter etc. On the other hand socialists think that

without eradicating the class distribution of society on the basis

of haves and haves not, the economic justice can’t be achieved.

Liberalist thinkers say that helping poor in society is economic

justice. According to Marxist thinkers abolition of economic

system which has its basis in the exploitation and capitalism is

necessary for economic justice. Socialist ideology considers

economic freedom, equality and justice as the basis of all

freedoms, equality and justice. For liberalist writer political,

social justice is different from economic justice, they say that

presence of political justice i.e. democratic system in itself is a

guarantee of economic justice because the government of the

people will arrange public welfare. They do not want to destroy

capitalism for economic justice but are of the opinion that the

13 Sandhu Gyan Singh, Hindi Madhyam Karyanvayan Nideshalaya, Delhi University

123

capital and capitalism are necessary for economic justice. In the

last of eighteenth century and pre-half of nineteenth century

liberalists considered free competition of free market society as

the key point of economic justice. But in last half of 19th century

positive liberalist thought emerged which laid, the responsibility

to ensure economic justice upon the State but these liberalists

did not oppose capitalism.14

It means that there shall not be any discrimination with

any citizen in political system and processes; and there shall be

equal opportunity to every person to participate in it. That’s why

the democracy is best system for political justice and

dictatorship is opposite to political justice. The main features of

political justice are representative form of governing system,

adult franchise, impartial and regular election, right to contest

election, right to hold every office to every citizen by due process

etc. Except all this some other rights are also necessary for

concept of political justice as right to form political party,

But in 19th century Marx joined economic justice with

production arrangements of society, the economic justice is

possible only in socialist economy. So far exploiter and exploitee

class would exist in the society till then economic justice cannot

be achieved. In socialist society the form of economic justice

would be- “each according to his capacity and each according to

his need.” Thus Marx says that without establishing

communism economic justice is not possible.

Political Justice:

14 Fadia B.L., Political Science, P. 29

124

freedom of speech and expression, right to form protest, right to

association etc.15

15 Fadia B.L., Indian Government and Politics, P. 46

125

Legal Justice:

The simplest explanation of justice is associated with the

legal aspect but it is only legal and informal explanation. Legal

justice means: -

(1) Equality before Law;

(2) Equal protection of law to all without any

discrimination on the basis of cast, creed, sex, place

of birth, race etc. Neither against nor in favour of

any party any special arrangement be made by

law.16

Because administration of law and enforcing the law is

the duty of courts, so legal equality means equality before

courts and equal jurisdiction of courts on all. Neither one

should be beyond the jurisdiction of courts nor any special

court be form for anyone.

17

i. Which are framed on public interests

Since law and justice are closely related to each other, so

by farming laws and enforcing them properly the State tries to

establish justice in the society. The legal aspect of justice can be

divided into three parts as follows: -

(1) Laws should be just:

The citizens follow only those laws which are based on

justice.

The just laws are: -

ii. Which are framed by elected representative

16 Pandey J.N., Constitution of India, Central law agency, Allahabad, 2004, P. 78 17 Johari J.C., Principles of Modern Political Science, Sterling Publishers Pvt. Ltd, Delhi, 1992, P. 191

126

iii. Which are consistent with social recognition: The

laws which are inconsistent with social

recognition are not popular. The reason of

popularity of common law in England is their

consistency with prevailing recognition in that

society. According to Barker, on the consistency

of laws- “Authority makes laws just and justice

provides it value since law is value and I follow

rules not for being it a legal or outer pressure

but because it is moral and motivated by my

inner conscience if it is filled with justice.”

(2) Justice According to Law:

Not only the law should be just but also it is necessary

that justice should be done according to law by the officers and

judiciary. For this some provisions should be there: -

(i) Every person should be given equal status before

law as Article 14 of Indian constitution says that

the State shall not deprive off any person from

giving equal protection of law and equality before

law.

(ii) There should be arrangements to make judiciary

independent and impartial so that it can do justice

properly.

(iii) The individual should be given security against

arbitrary arrest.

(iv) No sentence should be given without proving the

charge.

(v) The trial should be conducted in open courts.

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(3) Purposive Punishment:

Justice and punishment are closely associated with each

other because the purpose of punishment is to establish justice

in the society. There are different views of purposive

punishment as: -

(i) Deterrent theory: - According to this theory,

the object of criminal justice in punishing is to

deter people from committing a crime. The

infliction of punishment is to serve as a check

on the persons who would go to commit a

crime.

(ii) Preventive theory: - This theory states that

punishment is inflicted to prevent the crime

from being committed again. If an offender is a

habitual thief, his hands are cut off just to

prevent him from stealing again. The repeatition

of the offence is thus stopped. Punishment in

this sense is preventive or disabling.

(iii) Retributive theory: - This theory is based on

revenge “an eye for an eye and teeth for teeth”

i.e. tit for tath is the underlying principle of this

theory. The doctrine that the offender should be

made to suffer in proportion to the injury

caused to the victim is considered as a relic of

barbarism in modern civilized period because

this will create chaotic society.

(iv) Reformatory theory: - This theory says that a

person commits crime in helpless condition and

on losing mental balance. Thus the crime is a

128

disease which should be diagnosed and treated

scientifically, like all other disease. Punishment

must not to be regarded as the end in itself but

the means to achieve that end. But critics say

that criminals are clever and intelligent and

they commit crime by planning and in organized

way. Thus they are not responding to reforms.18

So far as punishment is concerned, no one of the above

mentioned theories is absolute in itself. The purpose of the

punishment should not be only to give sentence but also the

attempts should be done to reform criminals to prevent them

from committing crime further.

For legal justice it is not necessary that all laws are

enforced on all. Different laws can be made for different classes

according to the circumstances of individuals, necessity,

capability and ability. But laws should be enforced equally on

the persons falling in same category. Equal treatment with

unequals creates injustice instead of justice. Justice means

equal behaviour with equals. This is the reason why in India

special provisions and protection of law is provided for women,

scheduled castes, scheduled tribes and other backward castes

and it is not considered as against law but it is taken as “Legal

justice”. But our problem is not solved by legal justice only. If

law is justice then what principles should be adopted by

legislators framing laws? When law is ambiguous or silent then

what principles should be followed by the judge? It is clear

besides legal justice the knowledge of end of justice is essential

18 Chaturvedi S.M., Criminology and Penalogy with Criminal Administration, Central Law Agency, 1996, Pp. 234-235

129

for both legislator and the judge. This aspect of justice is known

as substantive justice.

Justice and Ideology:

The concept of justice is also associated with political

ideologies. The fundamental of political ideologies is Liberalism,

Dictatorship and socialism. Each of the ideologies defines

justice in its own way.

Liberalism:

The centre point of liberalism is individual, his right and

his freedom. It makes freedom dominant over equality.

According to this ideology justice means rule of law and equality

before law. Law decides rights and duties of citizens and the

encroachment of these rights create a situation of injustice.

Thus justice means use of rights by individual according to law.

This ideology says that the source of justice is law. If the

existing law is not just, it can be made just by changing it

legally but justice can be established only by living within the

purview of law and by following law. This theory is limited to

political and legal justice and economic and social justice are

beyond its circumference. Upto some extent for the attainment

of socio-economic justice some amendments took place in

liberalism, which are called as Neo-Liberalism. Neo-Liberalism

accepts that the State should act positively for the interest-

aggregation of poor class people, like liquor prohibition,

restricting hoarding and smuggling, establishing educational

institutions, ensuring health services and checking white- collar

crimes. Whether these acts make personal freedom limited but

this should be done in the interest of the public. Thus Neo-

Liberalism is closer to social justice. As a result of Neo-

Liberalism many countries adopted ‘Social Security Legislation’

130

for labours and the concept of ‘Welfare State’ emerged. But

economic justice still remains out of the preview of Neo-

Libralism.

Dictatorship:

In present time there had been different types of

dictatorship which has been observed as – Fascism in Italy,

Nazism in Germany, Military rules in Spain, Latin America,

Pakistan, Myanmar etc.

According to this Ideology individual is means and State

is end. Thus the basis of development and prosperity of

individual is following charter or king’s order and in this

following individual and social justice is inherent.

There is no individual right and freedom in dictator ruled

State and economic system is in full control of State.

Production, valuation, import, export are totally regularised and

controlled by the State. Whole of the political and economic

system remains under the control of the ruling party and

aggregates the interest of its membership especially of its

leadership and supreme leader. Except ruling party all parties

are dissolved i.e. a single-party system prevails. The only right

of masses is to follow the command of sovereign or of

governance which is the supreme justice to them. Ruling party

dominates the every wing of the system viz. legislature,

executive and judiciary too.

Clearly in this type of State system there is neither

freedom nor equality. Thus such a State can be called as anti-

justice State.

Socialism: -

131

The socialist system accepts economic justice as

foundation of justice and its actual essence. The economic

justice is not possible without the abolition of private ownership

and also without establishing public control and ownership over

production, exchange and means of distribution. Thus there is

no place for bourgeois19

19 Belonging to or characteristic of the middle class, typically with reference to its perceived materialistic values or conventional attitudes

in socialist system. No class can exploit

another class. Means of production, mills, factories, banks,

companies, rail, road transport, air transport, public facilities

comes in the direct control of the State and also trade and

commerce are totally under the authority of the state. Hence, no

one remains owner or master everybody becomes servant or

labour of the State. This creates absolute economic equality.

The all round development of individual is possible in

economic security and meeting him facilities and opportunities

is the true freedom. Thus it can be said that pure socialism is

such an State where maximum freedom and maximum equality

is available, hence socialism is the best system for attaining

justice.

132

References:

1. J.R. Siwach, “Delay in Justice in India”, in Virender

Grover (ed.), Political Process and Role of Courts,

New Delhi: Deep and Deep Publications, 1997.

2. Patrick Edobor Igbinovia, The Administration of

Justice, Crime and Court Dispositions of Offenders

in an African Kingdom: The Case of Swaziland

under British Rule, 1943-1968, Madras: Indian

Journal of Criminology, Vol. 13, No. 2, July, 1985.

3. S. Venugopal Rao, Criminal Justice Administration:

Planning for Future, New Delhi: The Indian Journal

of Public Administration, Vol. 26, No. 3, July-

September, 1980.

4. Justice Dilip Raosaheb Deshmukh, Efficiency of

Alternative Dispute Resolution Machanism in

Reducing Arrears of Cases, Nyaya Deep, New Delhi:

National Legal Services Authority, Vol. X, Issue 2,

April, 2009.

5. A. Lakshminath, Criminal Justice in India:

Primitivism to Post-Modernism, New Delhi: Journal

of the Indian Law Institute, Vol. 48, No. 1, January-

March, 2006.

6. Elmer H. Johnson, Crime, Correction, and Society,

Georgtown: The Dorsey Press, 1978.

7. Ipsita Haldar, Alternative Dispute Resolution

Mechanism for women in India: Forms and

Practices, Man and Life, Paschim Madipur,West

Bengal: The Institute of Social Research and

Applied Anthropology, January-June, 2010.

133

8. T.K. Mann, Administration of Justice in India: A

cases Study of Punjab, New Delhi: Concept

Publishing Company, 1979.

9. Alfred Cohn, The Criminal Justice System and its

Psychology, New York: Litton Educational

Publishing, 1979.

10. V.A.C. Gatrell (ed.), Crime and the Law: The Social

History of Crime in Western Europe Since 1500,

London: Europa Publications, 1980.

11. H.R. Khanna, The Judicial System, New Delhi:

Aruna Printing Press, 1980.

12. K.L. Sharma, Sociology of law and Legal Profession,

Jaipur: Rawat Publications, 1984.

13. S. Venugopal Rao, Crime in our Society, New Delhi:

Vikas Publishing House Pvt. Ltd., 1983.

14. B.Datta Ray, Crime Perspective in North East India,

Guwahati: Omsons Publications, 1986.

15. N.K. Indrayan, Law and Public Opinion in India,

New Delhi: Deep & Deep Publications, 1985.

16. Ram Ahuja, Youth and Crime, Jaipur: Rawat

Publications, 1996.

17. Anjali Kaul, Administration of law and Justice in

Ancient India, New Delhi: Sarup & Sons

Publications, 1993.

18. J.S. Gandhi (ed.), Law and Social Change, Jaipur:

Rawat Publications, 1989.

19. B.L. Verma, Development of Indian Legal System,

New Delhi: Deep & Deep Publications, 1987.

134

20. R.C. Sekhar, In Indian Judicial System: Need and

Directions of Reforms, edited by S.P. Verma, New

Delhi: Kanishka Publishers, 2004.

21. R.C. Mishra, Crime Trends and Criminal Justice,

Delhi: Authors Press, 2001.

22. V.P. Srivastav, In Indian Police: Law and Reality,

New Delhi: Manas Publications, 1997.

23. C.L. Aggawwal, “Laws’ Delay and Accumulation of

arrears in the High Courts.” The Journal of Bar

Council of India – Vol. 7(1): 1978 p 41.

24. CJI Justice K.G. Bala Krishnan Efficient

Functioning of India’s Justice Delivery System

(2007) 4 SCC J-15

25. Chief Justice A.S. Anand: Indian Judiciary &

Challenges of 21st century. The Indian Journal of

Public Administration July-Sept 1999 Vol XLV No.

3, p 299

26. CJI Justice K.G. Bala Krishnan : Efficient

Functioning of India’s Justice Delivery System

(2007) 4 SCC J-16, 17

27. R.C. Lahoti : Envisioning Justice in the “21st

Century” 2004(7) SCC Journal p 13

28. C.J. Bharucha: Speech Delivered in Kerala

organized by the Bar Council of India and Bar

Council of Kerala Published in India Bar Review Vol

XX VIII (4) 2001 p 2

29. Need to Hasten Justice Delivery: The Tribune dated

19th April 2008 p11

 

 

   

Chapter:Four

Judicial Reforms

135

Chapter Four

Judicial Reforms

A good judicial system produces many economic, political,

and social benefits. An effective judicial system is necessary to

check abuses of government power, enforce property rights, and

enable exchanges between private parties. A fair, efficient,

affordable, and accessible justice delivery system aids in market

development; supports investment, including foreign direct

investment; and stimulates economic growth.

Of the three branches of government, the judiciary is “in a

unique position to support sustainable development by holding

the other two branches accountable for their decisions and

underpinning the credibility of the overall business and political

environment.”1 The political environment of a country depends

on its rule of law.2

While there are no fixed criteria that a legal system must

possess in order to establish that the jurisdiction governed by

that system is under the rule of law, it is useful to know that

Both the procedural and institutional

characteristics of a country’s legal system are central to the rule

of law. The rule of law requires at minimum that the

government acts according to the law produced by the

legislature and respects the civil rights of its citizens, and

citizens can resort to a judicial body that treats each case

neutrally and fairly.

1 World Bank, World Development Report: The State in a changing world (1997) 100.

2 Richard Bilder and Brian Z. Tamanaha, Law and Development, 89 AM. J. Int’l. L. 470, 484 (1995).

136

the following are common indicators used to measure rule of

law: an independent and impartial judiciary; laws that are

publicly accessible and apply to citizens and government alike;

and the absence of retroactive laws.

Neglecting judicial reforms has related social costs.

Justice forms the basis of lasting social order. In a just social

order, citizens feel empowered to invoke that rule of law for their

own benefit. Legal empowerment reduces poverty, builds civil

society, encourages development, and promotes human rights.

Access to legal services and complementary non-legal services

should empower citizens to use the law to improve their lives.3

3 John Hewko, Foreign Direct Investment: Does the Rule of Law Matter? (2002) (unpublished manuscript, on file with the Rule of Law Series).

Neglecting judicial reforms also has an economic cost. The

overall level of confidence in government institutions, including

the judicial system, correlates positively with the level of

investment and other measures of economic performance.

Efficient and transparent legal systems reduce transaction costs

for economic actors and thus encourage investment, especially

foreign investment.

An inefficient legal system—one that is characterized by a

huge backlog of cases— undermines the effectiveness of legal

reforms. Inefficiency in the judicial system leads to an increase

in litigation, as people who are aware of the slow pace of justice

within the court system begin to file cases primarily to harass

the other party. Such cases crowd out genuine litigants who are

forced to seek solutions elsewhere.

137

Judicial reforms are aimed, in part, at lowering the

transaction costs of litigation. In civil cases, parties go to court

in order to resolve a dispute, which they have not been able to

resolve privately. In other words, the cost of settling the dispute

privately between the parties is very high.4

In India, resolving disputes through the courts is

generally not the cheaper option. The poorest members of

society and firms unaffiliated with large business groups are

most likely to be adversely affected by inaccessible, corrupt, or

inefficient courts. The poor who find themselves defendants in

criminal cases often do not have the resources to obtain bail.

Moreover, when the defendant is the family breadwinner and

cannot pay bail, his or her family loses its source of income.

Court Congestion in India Large backlogs of cases and delays

may affect both the fairness and the efficiency of the judicial

system. In India, the workload of the courts is huge. There are

about 20 million cases pending in lower courts and another 3.2

million cases in high courts. A termination dispute that is

contested all the way can take up to 20 years in the Principal

Labor Court in Bangalore, 90 percent of termination disputes

are not disposed of within a year. Writ petitions in high courts

take about 8 to 10 years and in some courts nearly 20 years.

All things being

equal, cases are litigated only when the legal cost is lower than

the bargaining cost. If the legal cost were higher than the

bargaining cost, then the parties would not go to courts.

4 Rick Messick, Judicial Reform and Economic Development: A Survey of the Issues, 14(1) The World Bank Res. Observer, 117, 120 (1999).

138

The dockets of civil cases are overcrowded and it may take years

to get a trial on the merits.5

Judiciaries with lower litigation rates display a relatively

better performance with respect to current caseloads, but are

not efficient in addressing the “real” backlogs of cases pending

for more than a year. However, a study by Micevska and Hazra

reveals that simple supply side solutions such as increasing the

number of judges might not entirely solve the problem.

Improving efficiency of the judiciary is also important in

decreasing court congestion. A major function of the judiciary

Protracted case processing times and overburdened

administrative staff may lead to resource-privileged individuals

dominating the court’s time to the detriment of those who have

fewer resources with which to exert influence. Those with

limited access to justice may resort to extralegal or illegal means

of resolving conflict such as coercion or physical violence. A lack

of judges has generally been cited as the main reason for court

congestion and delays. Indeed, the number of judges in India

per capita has been low compared to other countries. For

instance, data on 30 selected countries from the World Bank

Justice Sector at a Glance database8 indicate that in 2000, the

average number of judges per 100,000 inhabitants was 6.38;

The corresponding number for India is about 2.7 judges.

Court productivity, as measured by docket clearance

rates, has a significant and negative effect on both caseloads

and congestion rates and seems to be crucial for the

effectiveness of congestion-reduction programs.

5 Government of India, (1997), Report of the Committee on Rationalization of Classification of Prisoners in Tihar Jail, New Delhi.

139

and the courts is to assist in the efficient and timely resolution

of disputes.6 Once a court has been established, its efficiency is

defined in terms of the speed, cost, and fairness with which

judicial decisions are made and the access that aggrieved

citizens have to the court. Developing countries need judicial

reforms. Neglecting judicial reforms leads to lack of property

rights enforcement and abuse of government powers. These may

ultimately force people to operate outside the legal system, and

impair the rule of law. This could affect a nation’s credibility to

do business and result in lower investments and economic

growth. In the long run, this could impair the reduction of

poverty and creating long lasting social order.7

The Courts in India are functioning according to the

procedure laid down in the Criminal Procedure Code, Civil

Procedure Code, Indian Evidence Act etc. The Judicial Reform

India’s experience has shown that the poor are usually the ones

who suffer most under a non-functioning criminal justice

system. An inefficient judiciary encourages rent-seeking

activities and makes access to justice by the poor particularly

difficult. Thus, while efficiency-enhancing efforts are small steps

in the right direction, more substantive judicial reforms—

including police and prison reforms—should lie at the core of

any effort by policymakers.

Need for Judicial Reforms

6 V. Nagaraj, Labor Laws, in M. MENON, N.R. AND B. DEBROY (EDS.) LEGAL DIMENSIONS OF ECONOMIC REFORMS (1991) 31–80.

7 Arnab Kumar Hazra and Maja B. Micevska, The Problem of Court Congestion: Evidence From Indian Lower Courts (2004), available at www.swan.ac.uk/economics/res2004/program/ papers/HazraMicevska.pdf.

140

has become a great challenge to the polity because there is

undue delay of disposal of cases in India. Justice delayed is

justice denied. If the stream of justice is dried up, there will be

discontent, upheaval and explosion in the society. The judicial

system works as safety valve in the society. The purpose of

Judicial Reforms is to build a credible justice system that will

provide agency/channel for citizens to secure their rights

through legitimate process. The government is accountable to

them. The citizens should enable to resolve their mutual

disputes in a free, fair and speedy manner including disputes

against the mighty government.8

It is therefore, essential to provide an independent and

impartial judiciary with a speedy and efficient system. At

present in India, there are about 25 million cases pending in

various courts in the country. Out of above, 20 million cases are

pending in District Courts, 3.5 million in the High Courts and

about 22,000 cases in the Supreme Court. Other courts,

tribunals may account for total pendency of about 15 million or

more cases. Many of these cases in High Courts and District

Courts are pending for many years. The cases in these two

courts are pending for about five years on an average. The

increase in pendency of cases is due to various reasons such as

increased institution of cases on account of the awareness of

Nani Palkhiwala, the famous journalist, observed once,

the progress of a civil suit in our courts of law is the closest

thing to eternity we can experience! Our laws and their

interpretation and adjudication led to enormous misery for the

litigants and forced people to look for extra-legal alternatives.

8 Arnab Kumar Hazra, (2004), Institutional Reforms in the Enforcement of Criminal Justice in India, in BIBEK DEBROY (EDS.), AGENDA FOR IMPROVING GOVERNANCE (2004).

141

the rights on the part of citizens, population explosion,

industrial and commercial developments, emergence of socio-

economic measures, touching the life of the citizens at all levels,

lawyers' strikes etc. The Supreme Court has shown the way by

reducing its pendency from about 1,04,936 as on 31.12.2001 to

1,22,551 as on 22.02.2012. The steep decrease in pendency of

cases in Supreme Court is due to their concerted steps taken

viz; fixing of cases and their allocation to Benches through

computer network, grouping and classification of cases

involving similar question of law, setting up of specialised

benches, computerisation of records.9

9 V. Nagaraj, Labor Laws, in M. MENON, N.R. AND B. DEBROY (EDS.) LEGAL DIMENSIONS OF ECONOMIC REFORMS (1991) 31–80.

It is said that increase in judge strength and providing

additional infrastructural facilities will provide impetus for

reduction of pendency of cases in District Courts and High

Courts alongwith necessary amendments in various procedural

and substantive laws. There are few takers of this concept that

the courts by their own efforts will bring down the pendency of

cases to a respectable level.

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Purpose of Judicial Reform

According to Daniel Webster, the outstanding American

Lawyer, 'Justice is the greatest end of man. Justice is the end

while law is a means'. The purpose of Judicial Reform is as

follows:

a) Improving the independence, integrity and

professionalism of the judiciary by developing and

maintaining a professional cadre of judges and legal

professionals, through a combination of appropriate

training, incentive systems and improvement in

working conditions.

b) Increasing the efficiency of the judiciary through

improved resource allocation and management as

well as case management and capacity building.

c) Ensuring the transparency and accountability of

the judiciary through the establishment of an

effective control and supervision system, the

gathering and dissemination of legal information.

d) Ensuring access by the poor to judicial services and

the delivery of quality judicial services.

Components of Judicial Reforms

We can attempt to concretise Judicial Reform through an

empirical formula. According to Parkinson law, Judicial Reform

is a complex subject.

The more judges, the more inefficiency creeps into the

legal system. This is also true from the American experience. If

corrective measures are not taken to solve the problem of huge

pendency of cases in Indian judiciary, it may fall under its

143

weight. There is an urgent need for check on frivolous litigation

and weeding out in fructuous cases.

Assessment of Judicial Reforms

Based on the foregoing discussions, we can discuss the

extent of each factor present in judicial reforms in India as

follows:

Judge Strength and Appointment of Judges

The Supreme Court is more or less having full judge

strength whereas the High Court is having generally 20-25 per

cent vacancies. The District Courts also have vacancies of about

2000 which come to about 15 per cent. On the other hand, the

judge strength should be increased. If it is not possible to

increase judge strength at the level of 50 per million of

population, it should be increased by about 1500 judicial

officers in the country after filling up about 2000 posts so that

they can dispose of all the pending cases in the District Courts

within the next five years. This comes to about 10 percent of the

total sanctioned strength of judicial officers i.e. about 14,000 in

the country. Thus, there is further requirement of about 25 per

cent of judicial officers in the country.

Procedural Laws

The Code of Civil Procedure, 1908 has been recently

amended fixing time schedule at various stages of suits. Though

it is not a perfect amendment as lawyers have opposed it. But it

is a major break-through. The amendment in Code of Criminal

Procedure is awaited as because the report of the Malimath

Committee for revamping of criminal justice administration is

awaited. After that, it will take 2-3 years for affecting

amendments of Code of Criminal Procedure. The Court Fees

144

Act, Law of Limitation, Indian Stamps Act, Indian Evidence Act

will also have to be amended to further assist the expeditious

judicial processes.

As the Code of Civil Procedure is the major Code, it will have

cascading effect on other laws of the country.

Substantive Laws

The amendment in the Criminal Procedure Code is still

awaiting passage in Parliament. Similarly, laws like the Indian

Contract Act etc. are also to be considered with a view to keep

pace with the liberalised economy. The Indian Companies Act

has been amended. Thus, only microscopic amendments have

been taken up so far. Substantive Laws are mostly pre

independence laws and do not fulfil the requirements of modern

age.

Court Procedure

Many of the High Courts have amended their rules and

procedure following the recommendation of the Malimath

Committee Report (1989-90) known as the Arrears Committee.

But most of the High Courts are still to undertake the process

in all respects. Many of the High Courts like High Court of

Allahabad etc. have issued instructions to District Courts not to

give adjournments.

Court Manoeuvre/Mechanism

We are a country that believe in delays. The delay starts

from filing of suit by litigants. The Advocates are a pressure

lobby before the court. The court are not generally allowed to go

ahead with the expeditious process by the lawyers. Sometimes,

the Presiding Officer also indulges in delay tactics. One third of

the court's time is wasted in fixing the case and bringing the

145

case record before the court just to postpone the hearing. The

cases are not finally disposed of and in this vicious circle, lot of

judicial time is wasted.

Working Hours of Courts

The working hours of the courts requires to be increased.

However, this is a very sensitive issue and the courts feel that

the working hours need not be increased.

Service of Notices and Submission of Reports Including

Investigation Reports to Courts

There is a poor arrangement of service of notices of court

through police. Investigation processes are always delayed

inviting outside interference. Other processes like submission of

investigation reports, inspection reports, reports by science

laboratories are also delayed. This is also a part of delay in the

whole bureaucratic system in the country.

Delay in Delivery of Judgment

There is delay in delivering the judgment only in few

cases.

Training of Judges

The facility for training of judges is just 'so so' as only 7-8

judicial academies have been established in the country so far.

But many High Courts have made some arrangements for

training of judicial officers. The training facilities is being

increased as the National Judicial Academy has become

functional at the national level.

Quality of Legislative Drafting

The Legislative drafting is quite good but it requires

improvement because of changing circumstances and change in

146

environment due to explosion of information technology. The

existing laws are not keeping due pace with the scientific and

technological changes.

Observance of Professional Conduct by Judges

The Judges of the Supreme Court are ideal in all respects.

The judges of the High Court also observe proper conduct.

However, at the lower level of District Judiciary, sometimes

there are lapses and there are many complaints of corruption

against them.

Legal Profession and Legal Education

The legal profession in the country requires lot of

updation at the level of District Judiciary. Frequent strikes by

lawyers in Courts are to be discouraged. Legal education also

requires to be improved. A few Law Schools have come up in

Bangalore, Bhopal and other places which can be compared

with the best law institutes in the world.

Alternative Dispute Resolution (ADR), Setting up of Special

Tribunals and Arrangement for Prelitigative Settlement

The ADR mechanism is working very well after the Legal

Services Authority Act has come into force. The Fast Track

Courts have also infused confidence in public. Special courts

have also increased faith of public in Judiciary. Therefore, this

factor can be placed in 'very adequate' category. However, there

is still scope for establishing the permanent system of pre-

litigative system at the District level to implement provisions

under Section 89 of the Code of Civil Procedure recently added.

147

Setting up of Gram Nyayalayas

This factor is still in the discussion stage and nothing is

being done. Some efforts are made by the State Government like

Madhya Pradesh and others. Just after the independence, the

Panchayat Systems in many States like UP, Panchayat system

had inbuilt Nyaya Panchayat System and they worked very well.

However, later on, they fell in trap of local village politics and

were made defunct. Now, they require to be revived again.

Infrastructural Facilities of the Judiciary

Judiciary as an important organ of the State requires lot

of investment. Information technology requires to be

implemented in a big way in the Judiciary. The State

Governments are giving increased financial autonomy to the

Judiciary. The modern facilities of Xerox machines, computer,

fax are being installed in the District Courts. There are no

proper enquiry/facilitation centres in District Courts. However,

these facilities are available in High Courts and in a big way in

the Supreme Court.

Thus, judicial reform in the country is just less than 50

percent. However, it is happily learnt that it is better than 'so so'

category. Efforts should be made so that it can be pegged at 70-

80 per cent level. This can be achieved by encouraging Gram

Nyayalayas, Expeditious services of notices of courts, adequate

training of judges, improvement in legal profession and

education and by way of necessary amendments in substantive

and procedural laws.

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Judge Strength and Appointment of Judges

In India, there are about 14 judges per million population

whereas in USA there are 50 judges per million population.

Most of the countries except China have higher judge strength

in the judiciary. The 120th Report of the Law Commission has

laid down that India should adopt USA's judge strength. The

Department-related Parliamentary Standing Committee on

Home Affairs in its 86th Report has also suggested that judge

strength at the ratio of 50 per million population should be

achieved in India. The Supreme Court in the case of All India

Judges Association Vs. UoI & Others has also laid down on 21st

March, 2012 that the judge strength at the rate of 50 per million

should be achieved in the next five years.

This is not acceptable to the State Governments and the

Union Government because it will involve huge expenditure of

more than Rs. 14000 crores. It is suggested that the additional

judge strength should be created on the basis of work load and

disposal of cases so as to tackle the pendency of cases within

next five years. It can be easily achieved because in all the

courts, the present institution of cases is being tackled by the

existing strength of judges. Therefore, if additional judge

strength is created to tackle the pendency of cases in five years,

the additional judge strength will be available to tackle

subsequent pendency of cases after the pending cases are

completely disposed of and eliminated after five years.

There is a huge vacancy of judges in District Courts which

runs to about 2200 judicial officers as in August, 2012 and

there are vacancies of about 150 judges in various High Courts

in the country. The Hon'ble Supreme Court has rightly directed

the Government to fill up the vacancies by March, 2013.

149

However, if the period of five years is not agreed to for reduction

of pendency of cases, at least it should be agreed to for a period

of three years. Addition of judge strength on the basis of

population will perhaps be not in keeping feasible with the bad

financial position of the State Governments. They will have to

bear major brunt of increase in judge strength because they are

bearing the financial expenses of High Courts and District

Courts. Thus, the weightage of judge strength may be given 20

per cent and actual weightage will vary according to the

vacancies being filled up or not in a particular State or the

Court. If the vacancies are large and unfilled to achieve disposal

of pending in five or three years, the State or the particular

Court will get less weight age under this category.

Procedural Laws

Procedural Laws are the bulwark of Judicial Reform. It is

a common knowledge that courts in India are slaves of archaic

laws made by the British authorities to perpetuate their rule.

To accelerate the disposal of cases and to remove the

bottlenecks coming in the way of providing speedy and

inexpensive justice, there is need to amend certain provisions in

the existing statutes i.e. the High Court Acts and Rules, Civil

Procedure Code, the Criminal Procedure Code, the Indian

Evidence Act etc.

The following procedural amendments in respect of civil suits

and criminal suits are basic to Judicial Reform:

150

Civil Suits

a) In speedy disposal of Civil suits, time limit be

prescribed. For that, if necessary amendments in

Civil Procedure Code and the concerned Rules and

Orders of Courts be made.

b) Fixing of time limit for disposal of Interlocutory

Applications is also a must.

c) Adjournments should not be granted liberally. In

any case, adjournment not more than once is

granted. That too for a day or two but not more

than one week.

d) Time limit for arguments is fixed. It will be better if

written arguments are encouraged and entertained.

e) Time limit for giving the judgments/passing the

orders should strictly be followed.

f) To curtail time limits, the counsels of parties should

first exchange Interlocutory applications and give

replies amongst themselves supported with

affidavits and then file before the Court for passing

suitable orders thereon.

g) It was also suggested that for issuing notices to the

defendants/ Non-Applicants at the first hearing

itself. Alongwith ordinary process, notices be also

issued by registered notice/Hamdas process

simultaneously if desired to avoid unnecessary

delay in service.

Criminal Cases

a) Adjournments should strictly be avoided.

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b) Strict observance of Rules be followed in passing the

orders and delivering judgments

c) Bail Applications and Interlocutory Applications be

given priority. They may be disposed of as early as

possible.

d) Prosecution witnesses be kept present on the date of

hearing fixed by the prosecution at the risk of the

prosecution.

Substantive Laws

Substantive laws play a very important role. According to

the Jain Commission’s Report on Administrative Laws, there are

about 1300 Laws, Act and Regulation in India which are

required to be repealed or abrogated. We have major statutory

laws in the country like the Indian Penal Code (1860), Indian

Evidence Act (1872), Code of Civil Procedure (1908), etc. Which

are pre-Independence Laws. Sometimes, these laws have no

relevance with the modern times and, therefore, there is

dichotomy arises when these laws are interpreted by the Court

in the preset day context. There are Central Acts which

sometimes are overlapping. Sometimes, Statutes of two or more

States overlap due to huge volume of statutes. The lists of

Central Laws are about 340. New lists are added to these laws

every year. In achieving public cause in a time bound manner,

sometime the quality of laws is sacrificed. The laws are not

always in the knowledge of the public and it violates the basic

provision of law that everybody is supposed to know law of the

land. In case of the pre-independence laws like the Indian Penal

Code, the punishment prescribed in the Act is not

commensurate with the updated price index. There has been lot

of change in life style and thinking of people.

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Parliament and the State Legislatures are trying to amend

these laws but they are unable to keep pace with the socio-

economic changes taking place. Sometimes a clever litigant

takes the shelter under the obsolete law and gets away from the

clutches of the law. Many of the substantive laws have inherent

procedure of judicial adjudication which was once in the favour

of the accused person and the one who is seeking redress from

the court. The earlier pre-independence criminal law was based

on the principle that let hundred of accused persons are set free

but not a single innocent person be punished. Now, these basic

concepts are being misused by the rich and clever litigants due

to financial and other resources at their disposal.

The Law Commission of India has been reviewing the

substantive laws of the country from time to time but these

recommendations are not implemented with the required

promptness. The amending procedure takes a lot of time to

affect the amendment in the substantive laws. As a result, a

Statute Book of India has become irrelevant to the socio cultural

developments in the society. The bulky statute book of India is

because of increase in population also. Some of the substantive

laws provide procedure for disposal of cases. The overlapping

procedures should be done away so that justice is not only

done; it is also seen to have been done.

Court Procedure

Court procedure is one of the important areas which is relevant

in judicial reform. The High Courts and Supreme Court have

their own rules of procedure and they will not go by the

procedure laid down by the Code of Civil Procedure or Criminal

Procedure. The Malimath Committee (1989-90) known as

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Arrears Committee, has suggested extensive reforms in

procedure of the High Courts which are as follows:

(i) Abolition of Court ordinary original Civil

jurisdiction of High Courts.

(ii) Abolition of Letters Patent Appeals.

(iii) Discouraging multiplicity of appeals,

especially in the context of orders of quasi-

judicial tribunals.

(iv) Filing of certified copy of decree to be

dispensed with (operative part of the

judgement to be accepted along with the

appeal).

(v) High Courts to specify categories of cases

which could be heard by Single Judge or by a

Division Bench. '

(vi) Convention to be evolved that would

discourage granting of adjournments.

(vii) Limitation on presentation of oral arguments,

long elaborate judgment, etc.

(viii) Courts should avoid writing of long and

elaborate judgments.

(ix) Reserved judgments should ordinarily be

delivered within a reasonable time.

(x) Court to prepare lists of old cases and

arrange their early disposal.

Many of the High Courts have implemented these

recommendations but some are still in the process even after

the lapse of 10-12 years. It is, therefore, suggested that uniform

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rules should be adopted by the High Courts in their original as

well as in appellate jurisdiction. The Supreme Court by way of

grouping and of categorisation of cases, involving same point of

law, fixing of cases through computers etc. has reduced the

pendency of cases to an impressive figure but all the High

Courts are still to follow that. The writ petitions in High Courts

and Supreme Court are governed by the procedure of these

Courts. In the case of District/Subordinate Courts, the following

procedure of the Court may be very relevant:

i. Court should also be well prepared with the facts of

the case, relevant law applicable and the law laid

down by High Courts, i.e. High Court and Supreme

Court relevant to the facts of the case.

ii. Courts should maintain the punctuality of time and

discipline of timely disposal of the case as far as

possible.

iii. Parties should be encouraged for reconciliation or

settlement, if possible.

iv. Courts should have control over Daily Diary of Cases.

v. Rules and orders should strictly be followed.

vi. Once the Case comes on board for disposal, it should

not be adjourned except when the Court itself thinks

it proper and necessary to do so, that to for a very

short time.

vii. Hearing of the case adjourned due to absence of

Presiding Officer, be adjourned and fixed for the same

purpose as and when the presiding officer is expected

to be present.

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viii. Revisions against interlocutory orders be curtailed

until and under the whole case is likely to be

disposed off in such revision by the Revisional Court,

otherwise right to consider that point be left open for

Appellate Court in an Appeal against final decree.

ix. Heavy Costs be imposed for adjournments.

x. In case the Court considers that the examination of

the witness is necessary for fair disposal of the Case,

the Court after passing such order can call that

witness as a Court witness.

The latest amendments in Code of Civil (Amendment)

Acts, 1999 and 2002 provide for restriction of three

adjournments to a party to the suit, prelitigative conciliation

and mediation of disputes, delivery of judgments within 60 days

after the hearing and time limits at various stages of a suit.

It is expected that coupled with these amendments in the main

procedural law in India, High Courts will lay down procedure for

subordinate courts which will have cascading effect and civil

disputes will be finally disposed of within one year to two years'

period. Considering the significance of this aspect, maximum 7

per cent weightage is given to this factor.

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Court's Mechanism

The court is made of judges, counsel and litigants.

Counsel is a very important organ of the court and can help or

can obstruct administration of justice. He is a buckle between

the judge and the litigant. It is a well-known fact that

adjournments are sought by lawyers and the counsels on flimsy

grounds and the courts grant them adjournments as a matter of

routine. Though the Code of Civil Procedure Amendment Act,

1999 contains that not more than three adjournments will be

given to a party and many other reforms have been brought by

the Code of Civil Procedure Amendment Act 2002. But these

amendments to shorten the life of suits cannot be implemented

unless there is whole-hearted cooperation from the lawyers'

community. The court's adjournments are considered to create

a conducive atmosphere but now, these have gone beyond all

limits. One wonders whether courts serve the interests of

lawyers or the interests of the litigant public. The object of the

court is to ensure justice to the party before it. In India, it is a

well-known fact that justice is what the lawyers dictate.

Therefore, the lawyers' community has to give willing

cooperation in the administration of justice. During proceedings

of the courts, many occasions arise where the intelligent or

crafty lawyer who quickly responds to the court proceedings,

can twist the direction of the judgment in his favour. Secondly,

the lawyer apt in the art of argument, always says 'Yes My Lord',

and can win the confidence of the court and can get the

judgment he desires. Even the debating skill or method of

delivery by the Counsel makes a difference to the case to the

extent of 2 to 3 per cent. If Counsels have due clarity in their

thought and approach alongwith uprightness and simplicity in

their presentation, the cases can be decided fast. There was an

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attempt to restrict long and elaborate proceedings of the court

by the Civil Procedure Amendment Act, 1999 but these could

not be implemented because of opposition by lawyers all over

the country.

Thus, the lawyers will continue to play an important role in

delivery of justice in courts and to expedite the process of

disposal of cases. It is also a fact that we live in a country which

is prone to delays. Even the litigants are not always responding

to the demands or requirements of lawyers at all times. A mid-

way solution has to be arrived at but the courts should not

function to the convenience of lawyers only and should help in

achieving the ends of justice. In view of foregoing, weightage to

the whole gamut of court mechanisms may be given as 7 per

cent. The counsels should also observe the following

professional duties/ethics in the interest of justice:

• It should be the duty of the Counsel to help the Court in

not only to arrive at a Just Conclusion of the Case but

ensure for its speedy disposal.

• Advocates should take least possible adjournments.

• He should be well read and well prepared for his case

when the case is fixed. It will minimise the time of the

Court and help in speedy trial of the case.

• Applications intended only to delay the proceedings

should be avoided.

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Working Hours of Courts

It is debated in public that the working hours of the

courts should be increased and should be at par with the

working hours with other Government offices. The High Courts

and Supreme Court are working for about 221 days in a year

but the Government offices are working for more days. Judiciary

has been enjoying these privileges from the British days and

feels it essential because they do intellectual work and have to

dictate judgments even after office hours. It is also a fact that

unless the judgments are written, no purpose of drawing up

proceedings will be served. There should be adequate provision

of time for writing of judgments. The First National Pay

Commission (The Shetty Commission) has suggested that

vacation of District/ Subordinate Courts should be cut by 15

days and the District Courts should work for at least 36 hours

in a week.

These recommendations have yet to be implemented. It is

also estimated that if the court hours are increased by half an

hour each day in the High Courts, the pendency of cases will be

reduced to a large extent. However, this cannot be done without

the consent of the Judiciary and they should exercise fair

amount of independence and autonomy in the interest of

judiciary. However, it is not disputed that the courts should

work punctually and should not shun work. This itself indicates

that courts should play a major role for judicial reforms in

reduction of arrears through the doctrine of self-restraint or

self-discipline.

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Service of Notices etc. and Submission of Reports including

investigation Reports to Courts

The service of notices, summons and warrants is a big

problem for the judiciary because the Indian judicial set up does

not have its own mechanism for service of these summons. In

criminal cases, summons and warrants are generally served

through police administration. Police administration is mostly

busy in many other activities. As a result, the service of

summons/warrants is delayed to a great extent.

The Law Commission in its 154th Report has suggested

that these summons/warrants of courts be served through

machinery of the court itself but the votaries of the present

system feel that if the warrants are served through any other

agency except the police, the warrants will not be served and

will not have the salutary effect on the accused persons. If it is

not possible to provide additional hands to the courts, there

should be earmarking of the personnel in the police station who

may exclusively be dealing with the service of notices, summons

or warrants from the courts.

The 154th Report of the Law Commission suggests setting

up of a separate investigation agency and separate Directorate

of Prosecution in each State as recommended by the National

Police Commission. These recommendations are awaiting

implementation by all the State Governments. Some of the State

Governments have already implemented these suggestions. It is

also suggested in the 154th Report of the Law Commission that

the cases should be fixed in such a manner that the witnesses

summoned are positively examined on that day or on the next

day. The cases may be fixed police station wise. It is observed

that the success of Fast Track Courts scheme in Rajasthan is

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due to the fact that the service of warrants or summons from

the Fast Track Courts is being monitored by the Inspector

General (Police), Rajasthan, specially assigned for the purpose.

In civil cases, a positive dent has been made by the Code of Civil

Procedure (Amendment) Act, 1999 and 2002, according to

which the summons shall be served by the plaintiff himself

within 7 days from the order of the court. The summons can

now be served by the plaintiff through registered post, speed

post or through courier service along with service by the court.

There is a revolutionary change which strives to involve the

plaintiff in service of summons and introduces a new system of

service of summons through courier service which was earlier

dependent on the age old methods of service of summons. The

process got rusted over the passage of time. It is a well known

fact that courts cannot proceed further without due service of

notices.

Similarly in criminal cases, the submission of reports by

police officers/investigating officers delays the proceedings. The

separation of investigation will be very effective. It is also

suggested that generally officers may not be transferred during

investigation and he may be held personally responsible for

production of witnesses in order to help early completion of

prosecution. But it is doubtful to implement the same in a

practical way because if the cases drag on for 5 years or more,

the police officers/investigating officers may have their own

vested interest in delaying the proceedings to remain at a

particular place.

There is lack of scientific investigation in the country. The

investigative machinery is also not properly equipped with

modern gadgets of investigation. Also there is dearth of

personnel for investigation machinery at the disposal of normal

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police administration. In the sensational Priyadarshini Mattoo

rape-cum-murder case, the Trial Judge, Delhi observed that

"the accused is a criminal but I cannot convict him for lack of

evidence". The Trial Judge also said the manner in which the

CBI investigated the case, puts question marks on its credibility

as a premier investigation agency of the country. If it is the case

with the premier investigation agency, the things are worse with

the ordinary police machinery. In Russia and other countries,

the investigation is completed within 2-3 days after commission

of the crime and everybody gathers at the spot after commission

of the crime. It is therefore, proposed that 6 per cent weightage

should be given to be component of service of notices and

submission of reports before the courts.

Delay in Delivery of Judgment

There were a number of recommendations by various

Committees/Commissions that the judgment should be

delivered just after the hearing is over. The original Code of Civil

Procedure also provided for speedy delivery of judgment.

However, judgments are delivered after lapse of considerable

time in some of the cases. That increases the anxiety of the

parties to the suit and puts a question mark on the performance

of the court.

According to the Malimath Committee, the courts should

avoid writing of long and elaborate judgments, atleast at the

level of higher judiciary. The parties are interested to know the

order of the Court because they have no further forum of

appeal. Though it is a fact that the judgment should be a

speaking one, yet it will suffice if judgment is a speaking one as

regards pros and cons of both sides. The judgment need not

discuss the presentation of both sides in unnecessary details

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which is already on file. According to the recent amendment in

the CPC, the judgment should be delivered within 60 days after

hearing of the case. This is a mandatory provision as per the

Code of Civil Procedure Amendment Act of 2002 effective from Is'

July, 2002. This will go a long way in influencing early delivery

of judgment in civil, criminal and other cases in the country.

However, the weightage to the delivery of judgment is linked

with the conduct of proceeding of a case. Therefore, the

significance of the factor is allocated only one per cent.

Training of Judges

Training of judges can improve the system of judiciary as

a whole. The Human Rights Commission in their Report for the

period 1999-2000 has suggested that there should be provision

for continuous training and re-training of judicial officers for

prompt administration of justice. The First National Judicial Pay

Commission has suggested extensive training mechanism for

the judicial officers including the use of latest technology in the

administration of court. The training will enhance the

competence of the judges so that they can be updated with the

latest judgments on various subjects. There are new dimensions

of laws being opened up in the field of gender quality, human

rights, liberalisation of economy, patent law, competition law

and others. These new laws and local laws are sometimes

complicated. The judicial officers, who were trained at the time

of entry into service earlier, could not keep abreast with the

latest developments in the field of law because of excess

workload with them.

The FNJPC (The Shetty Commission) has suggested that

the Judicial Academy should be set up in all States along with

apex Judicial Academy by the Central Government. So far, only

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7 or 8 State Judicial Academies have been established in 7-8

States. Fortunately, National Judicial Academy has been

inaugurated by the Hon'ble President of India at Bhopal on 5th

September, 2002. Apart from the training of judicial officers, it

will also undertake the work of research in the field of court

management and judicial delays. It is also clear that the

primary reasons for judicial delays, repeated appeals and legal

uncertainties, inter-alia, can be traced to the lack of required

competence in terms of updated knowledge and skills on the

part of judicial officers at several levels of the system. In short,

there is no substitute to organized and appropriate training on a

continuing basis which requires priority attention in the judicial

reform agenda. In view of foregoing, five per cent (5%) weightage

has been assigned to the factor of training of judges in the

whole gamut of judicial reform.

Quality of Legislative Drafting

It is often said that the unsatisfactory quality of legislative

drafting is also largely responsible for vexatious litigation. In

India, there is no proper system of training in legislative

drafting. As a result, the States Acts, Rules and Regulations are

interpreted by different courts in different ways in the country.

Sometimes, delays in drafting suffers because of haste in

bringing about new laws. Sometimes there is overlapping among

various Acts. That causes unwarranted litigation. The laws

sometimes are drafted without public debate and not by experts

of competence, professional bodies, etc. which results with more

cases in the High Courts. Many of the Acts are declared ultra

vires, being violative of the Constitution of India. This could

have been avoided. Thus, there is an urgent need for addressing

to the need of proper and scientific legislative drafting

mechanism. If the laws are drafted properly, the volume of

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precedents will be less and people can know the law of the land

before coming to the courts. The Central Government has set up

a Legislative Institute for Legislative Drafting in the Legislative

Department, Ministry of Law and Justice but the State

Governments have to do a lot in this field.

As the drafting of these laws is not within the ambit of the

court, it has been given one per cent weightage only.

Observance of Professional Conduct by Judges

The judiciary is a highly respected institution in the

country. Self-restraint by the judiciary is the only way out.

There can be no choice for outside reforms or control by some

other organ of the Government. The Chief Justice of India after

the meeting with the Chief Justices of High Courts has adopted

a Code of Ethics of the judges in 1997. That is to be

implemented in all respects. In the subordinate courts there are

complaints of corruption in judiciary. The High Courts, who

supervise the subordinate judiciary, have a well-laid down

mechanism for prevention of corruption in the subordinate

judiciary but that is inadequate. It is, therefore, suggested that

the mechanism to prevent corruption in the District

Judiciary/Subordinate Judiciary should be more elaborate and

more foolproof. Though many a times, the judicial officers are

given exemplary punishment by way of dismissal from service,

yet the menace of corruption is also having its pernicious effect

on Judiciary. Though the concerned administrative judges of

the High Courts perform inspections of the District Courts, yet

it is felt that these are not adequate. Some mechanism has to be

set up at the District level itself as corruption is spreading

tenaciously. According to the Hon'ble Justice Bharucha, former

Chief Justice of India, more than 80 per cent of the Judges in

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the country across the board are honest and incorruptible.

Thus, about 20 per cent judges are under cloud of corruption.

The weightage to this factor is therefore given as 2 per cent. The

proper observance of good personal conduct by judges will itself

create an aura of judiciary which will enthuse people to respect

the orders of the judiciary. The orders of Courts will then be

followed without any resistance or pressure.

Legal Profession and Legal Education

The legal profession in India was governed by the Bar

Council Act, 1926 which was replaced by the Advocates Act,

1961. Thus, the Bar was unified and an All India Bar Council at

the apex with the State Bar Councils at the State level was set

up.

Under the Advocate Act, the rules framed by the All India

Bar Council for admission into law course is for a period of

three years after graduation and a five years course of study in

law after 10 plus 2. The five years' course alongwith the eminent

Law Schools have improved the quality of legal education.25

The law Degree granted by the various Indian Universities

are not preparing graduates in law to suit the needs of legal

profession of legal competency. There is an urgent need for

modern legal education.

The legal qualifications are prescribed for appointment of

law officers and judicial officers from bottom to top, i.e. from

Munshiffs to the Supreme Court Judges. Therefore, the very

basis and background of legal education is the basis for the

legal profession in the entire country to become and occupy the

judicial, quasi-judicial, and administrative and all other legal

Departments, either public or private undertakings. The aim,

purpose and object of legal profession must also be to realise

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the social responsibilities and shall endeavour to improve the

quality of legal services and the efficiency of judicial delivery

system.

At present, the appointments of law officers, both at the

Centre and in various States in India have been politicized and

criticised widely because of the inefficiency and incompetency of

the persons who are appointed as Law Officers. The strike by

the legal profession has been declared illegal by the Supreme

Court on more than one occasion. Lawyers' strikes contribute to

laws' delays. Sometimes lawyers go on strike on trivial issues in

Court administration. Sometimes, they go on strike for

establishment of new bench of High Court like in the Western

UP which has become a regular phenomenon or on amendment

in procedural laws like Code of Civil Procedure. These strikes

can be avoided.

The legal education is the basis for maintaining the

character, conduct, integrity, honesty, and sincerity including

the professional discipline in the legal profession. This will also

face the new challenges of new situations posed by PILs (Public

Interest Litigations), Judicial activism and also the matters of

judges exceeding their limits. The legal profession is a part of

administration of justice. Without a competent and sincere legal

profession, speedy disposal of cases will be a dream.

There should be proper design of courses, stiff admission

and evaluation tests, and candidates for legal practice should

not be enrolled without adequate training and proper education.

The weightage to the factor, therefore, given is to the

extent of 4 per cent.

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Alternative Dispute Resolution (ADR), Setting up of

Alternative Tribunals to Reduce Pendency and Prelitigative

Settlement

Lok Adalats have been set up as effective mechanism for

alternative resolution of disputes through persuasive and

conciliatory efforts with the enforcement of the Legal Services

Authorities Act, 1987. The Lok Adalats have now been provided

a statutory base and are vested with powers of civil courts. They

are being extended to all the States and Union Territories. So

far, the Lok Adalats have disposed of about one and half (1.5)

crore cases. The Act has now been extended to create

permanent Lok Adalats in selected public utilities where the

order of the Lok Adalat will be final upto a claim of Rs. 10 lakhs.

The Act of 1987 is also a benevolent instrument to provide legal

aid to the poor and needy people. In fact justice has no meaning

to the poor strata of people in India unless it is made

inexpensive because they cannot afford to go to the regular

courts. There are 30 per cent people below the poverty line in

the country and their condition is that they find it difficult to

make both ends meet in their life. Therefore, they cannot be

expected to pursue their court cases if they are implicated in

some civil or criminal cases and therefore, the court becomes an

instrument of exploitation unless they are given financial

assistance to fight cases. The legal aid system naturally defends

or strengthens their cause. The Supreme Court has also held, in

M.H. Rao Hosket Vs. State of Maharashtra (AIR) 1978 SC 1548),

that it is the duty of the State to provide legal aid to the poor.

The Lok Adalat along with legal aid to the poor can work as

useful arm of the present day judicial institutions. Along with

this alternative method, it is of utmost importance that

endeavour is made that the litigants find it is cheaper to

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compromise than to take their disputes to any court for

resolution of their controversies. Section 89 has been added by

the Civil Procedure Code (Amendment) Act, 1999, which

provides for compulsory pre-litigative settlement. The dispute

before the court will be referred for conciliation or settlement by

way of mediation, conciliation or arbitration through Lok Adalat.

This also refers to the 129lh Report of the Law Commission of

India. It is, therefore, considered necessary to set up permanent

Lok Adalats every day in each district in the country so that the

parties can approach these courts for settlement of their

disputes before they are stuck up in courts. For most of the

dates in courts, hearing is limited to extension of dates,

adjournment of case or injunction granted. The litigants keep on

seeing towards the court for final decision like a farmer who

looks towards the sky for rains during the month of June. It is

expected that the popular governments will place adequate

mechanism for providing relief through the fora like Lok Adalat

where people can go and settle their disputes before regular

proceeding starts.

It is also a well accepted fact that the alternative tribunals

or quasi-judicial forum will be helpful in expediting disposal of

special types of cases on specified subjects. These courts will

have experts in respective fields and the normal courts should

not be bogged down by these cases where subject matter

expertise is vital for just and speedy disposal of the matter.

These courts are generally set up under the specific Acts and

sometimes under Sections 13 and 18 of the Criminal Procedure

Code for early disposal of particular types of criminal cases.

Many tribunals like Central Administrative Tribunal, Income

Tax Appellate Tribunal, Rent Control Tribunal, Family Courts,

Labour Tribunal, Debt Recovery Tribunal, Monopolies and

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Restrictive Trade Practices Commission, Consumer Redressal

Forum at various tiers and so many other tribunals at the

Central and State level have been set up by various Acts of the

Central Government and State Governments. These tribunals

like CAT have been helping the normal courts in a big way but

after the recent decision of the Supreme Court, their appeals

will go to the High Courts where there is already choking due to

large pendency. To deal with petty offences like traffic and other

cases, more than 700 Special Judicial Magistrates have been

appointed in the country. More Special Judicial Magistrates

including Honorary Magistrates are to be appointed so as to

take away unimportant and petty cases from the regular courts.

As per the request of the Chief Justice of India, Chief

Judicial Magistrate or Chief Metropolitan Magistrate are holding

courts in jails once or twice in a month to hear cases of

undertrial prisoners who are languishing in jail for a long time

without any trial and are unable to pursue their cases due to

poverty or other reasons. The suggestion made by Hon'ble Chief

Justice of India to Chief Justices of High Courts had some

salutary effect. He has also appealed to hear the cases of senior

citizens of the age of 65 years and above on priority basis by

various courts in the country and to dispose of cases more than

7 years old on priority. Such initiatives had positive effects and

have substantially contributed towards judicial reforms.

To tackle the long pending Sessions cases, the Eleventh

Finance Commission has recommended for setting up of 1734

additional adhoc courts known as Fast Track Courts. The

Supreme Court has also upheld the validity of these courts in

the case of Brij Mohan Lai & Ors. Vs. UOI on May 6, 2002. So

far 1200 courts have been notified by the States and about 900

courts have been made functional upto September, 2002. These

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Fast Track Courts are disposing of Sessions cases and

important criminal cases involving under trials on priority basis.

These Fast Track Courts have been proved effective in

controlling the crime situation in the States like Rajasthan and

Maharashtra. The Sessions cases in some Districts of

Maharashtra could be heard after one month of their filing.

Similarly, the known criminals and mafia were booked under

the Fast Track Courts like in the States of Bihar (District of

Madhubani) and in Uttar Pradesh (Allahabad District), who

otherwise were at large or on bail, due to huge pendency of

cases in normal courts and were perpetuating crimes and

creating terror in the society.

Setting up of Nyaya Panchayat

The system of Nyaya Panchayat got eroded because of the

ineffectiveness of the election system of Nyaya Panchayats.

It also got discredited because the educated citizens, who

have little or no faith in the common sense and wisdom of the

rural populace, have scant respect for the Nyaya Panchayat. To

this infirmities was added a provision of appeal to the District

Judge, usually a city born allied group product and with his

technical approach to problem, reversed every single decision of

Nyaya Panchayat.

Gram Nyayalaya when set up and operated would be

wholly informal and not technical. The expenditure being

reduced to a minimum, it would make justice available at the

hand of their own persons at the door steps of litigants. No

dispute probably would last over a period of three years. Thus,

the grass root structure would help in laying a durable

foundation for the pyramidal edifice of the justice delivery

system in this country. Law Commission in its 154th Report has

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recommended setting up of Nyaya Panchayats headed by legal

professionals. It will meet the needs at the door steps of the

litigants and petty cases will not add to the docket explosion in

the regular courts.

The Law Commission in its 154th Report has suggested

adopting Andhra Pradesh Mandala Nyaya Panchayats Bill,

1995. Earlier when Nyaya Panchayats were set up in UP and

other States in 1950s and 1960s, they have disposed of crores

of cases. In view of the above, the weightage to setting up of

Gram Nyayalayas or Nyaya Panchayats is prescribed at 4 per

cent.

Infrastructural Facilities for Judiciary

It has been suggested by successive Chief Justices of

India that more financial autonomy should be accorded to the

Judiciary. The Government of India has taken up this matter

with the State Governments to provide financial autonomy to all

the High Courts on the basis of Karnataka model. But the State

Governments are finding it difficult to provide requisite

autonomy to the Judiciary as because the top level of judiciary

finds it difficult to appear before the Public Accounts Committee

of the State Legislature. However, there is agreement on this

issue and it is hoped that the courts will enjoy increased

autonomy in financial matters so that there should be a real

meaning of independence and autonomy of the judicial organ of

the State because without due financial strength, autonomy has

no meaning. The Government has been continuously investing

more funds in judiciary from' time to lime. The Governments

should invest more in judiciary as per cost-benefit analysis

because due to early disposal of cases, thousands of crores of

rupees of taxes, duties etc. of Government locked in various

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cases will then be available to Government for developmental

works.

There is a Centrally Sponsored Scheme relating to

development of infrastructural Facilities for the Judiciary.

Under this programme, the Central Government provides 50 per

cent grant to the States as per the norms set by the Planning

Commission and the State Governments have to provide the

matching share. For Union Territories, it is cent per cent grant.

The grant is for construction of court buildings and residences

of judges covering High Courts and the District Courts. So far

about Rs. 500 crores have been released by the Central

Government and the State Governments have spent more than

matching amount of Rs. 500 crores. If the infrastructural

facilities are created for more judges in the form of additional

court rooms and additional residences for judges, there would

be no problem in enhancing the judge strength which will

address the problem of huge arrears in courts. The Scheme has

really improved the standard of courts and residences of judges.

The popular Governments have also been introducing modern

office equipments in the courts from time to time.

The computerisation of courts is a very popular scheme in

judiciary and the Central Government has been allocating funds

under the Centrally Sponsored Scheme every year. According to

former Chief Justice of India, Justice M.N. Venkatachalaiah,

during the year 1993, a litigant service cell was started in the

Supreme Court where litigants could retrieve information on the

status of their cases fed into a network run by Nicnet. With

more sophisticated technology, it should work better now.

However, it has to be integrated with a flexible policy of disposal

of cases. Mr. Justice Ahmadi, Ex-Chief Justice of India,

implemented computerisation in a big way inspire of resistance.

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The results are now forthcoming. The Supreme Court has

become an ideal Apex Court for the country. The Central

Government during the year 2001-2002 has launched a pilot

project for computerisation of City Civil Courts in four

metropolitan cities in the country at a cost of about Rs. 15

crores. It is expected that the State Governments will follow suit

and start such schemes of computerisation in all the District

Courts under their jurisdiction. The computerisation has been

completed in almost all the High Courts and the Supreme

Court. The Supreme Court has brought down their arrears by

extensive use of computers in their working. The cause list and

details of cases are being made available by High Courts and

Supreme Court through computer networking. At the Supreme

Court, status of cases is available on Internet and anybody can

know the latest position of his case including judgment

delivered. Litigants can also get copy of the judgment from the

Internet.

In the Supreme Court and almost in all High Courts,

Facilitation/ Enquiry Centres have been set up where the

litigant public can-know the status of their cases on Internet

and on voice mail. Computerisation has reached almost all the

District Courts in the country but it is yet to be fully made

operational. National Informatics Centre has yet to exert a lot. It

is hoped that computerisation of courts will facilitate the public

to have direct contact with the courts even without going to

their lawyers. It will also increase the capabilities of courts. The

videoconferencing has also helped the courts and the police

administration not to take the accused persons every day to the

courts unnecessarily and create law and order problem in the

courts especially for the law abiding litigants. The days are not

very far off when everything will be transacted in courts through

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computerisation and these courts will be known as 'E-courts'.

The requirement of funds is very huge for the judiciary.

However, the popular governments will try their best to further

meet the requirements as much as possible.

In view of the utmost importance of provision of

infrastructural facilities for judiciary, this component is given

10 per cent weightage for judicial reforms as a whole.

An independent and impartial judiciary and a speedy and

efficient system are the very essence of civilization. However, our

judiciary, by its very nature, has become ponderous,

excruciatingly slow and inefficient. Imposition of an alien

system, with archaic and dilatory procedures, proved to be

extremely damaging to our governance and society. As Nani

Palkhiwala observed once, the progress of a civil suit in our

courts of law is the closest thing to eternity we can experience!

Our laws and their interpretation and adjudication led to

enormous misery for the litigants and forced people to look for

extra-legal alternatives. Any one, who is even remotely exposed

to the problem of land grabbing in our cities, or a house owner

who finds it virtually impossible to evict a tenant after due

notice even for self-occupation, can easily understand how the

justice system failed.

In the process, a whole new industry of administering

rough and ready justice by using strong-arm tactics to achieve

the desired goals has been set up by local hoodlums in almost

all of our cities and towns, and increasingly in recent years in

rural areas. The clout and money these hoodlums acquire

makes sure that they are the ones who later enter political

parties, and eventually acquire state power. There are countless

examples in almost every state in India of slum-lords, faction

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leaders, and hired hoodlums acquiring political legitimacy. Most

of them started their careers attempting to fill the vacuum

created by judicial failure through extra-legal and often brutal

methods. In addition, the courts have tended to condone delays

and encourage litigation and a spate of appeals even on

relatively trivial matters.

The higher courts have taken on themselves too much,

making it impossible for them to be able to render justice

speedily and efficiently. The writ jurisdiction became pervasive

and everything under the sun is somehow made a subject

matter of the writ. For instance, the transfer of an employee in a

public sector undertaking has become a matter of writ

jurisdiction by very involved and dubious logic. Such

absurdities undermined the authority of judiciary and caused

enormous damage to public interest. To take another instance,

the courts have time and again ruled that cooperatives are

public institutions, and are creatures of state, whereas in fact

cooperative theory and practice throughout the world clearly

envisage that a cooperative is a collective private body, created

to further the economic interests of the members in accordance

with the principles of cooperation. This mind-set that state

could intervene everywhere, and that such intervention by

definition is good, ensured that the people’s institutions could

not flourish in an atmosphere of freedom, self-governance and

autonomy. At the same time, state’s power even to control its

own employees and enforce discipline has been severely eroded.

As a net result, the judicial process only helped to accelerate the

decline in governance.

Right to life and liberty, the most vital freedoms

guaranteed in the Constitution, could not be adequately

safeguarded. Judiciary is over-burdened and rendered

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ineffective with unnecessary litigation, delayed procedures,

obsessive concern with the livelihood of advocates at the cost of

justice to litigant public and indiscriminate application of writ

jurisdiction. Excessive case load meant that most orders

emanating from courts would be by nature of granting stays

instead of adjudication. The age-old village institutions for

justice were allowed to wither away completely. Local people,

who know all the facts, have neither the means nor access to go

through complicated, incomprehensible court procedures. Touts

flourished and justice suffered. As a result, most citizens avoid

courts except in the most extreme circumstances, when they

have absolutely no other recourse available.

Essentially, the failure of the civil and criminal justice

system is manifesting in abnormal delays in litigation and huge

pendency in courts. While accurate statistics are not available,

it is estimated that approximately 38 million cases are pending

in various law courts all over the country. While 20 million

cases are pending in district courts, High Courts and Supreme

Court, about 18 million cases are said to be pending in lower

courts. At the end of 1995 it was estimated that around 58 lakh

criminal cases were pending trial, while 17.3 lakh cases have

been disposed of during the year accounting for 23 percent. In

1994 for example, disposal of cases in our courts was around

17 percent. The conviction rate is abnormally low with only 6

percent cases resulting in conviction. Even in cases involving

extremely grave offences with direct impact on public order and

national security, there are abnormal delays. For instance, it

took our criminal justice system more than seven years to

convict the murderers of Rajiv Gandhi in Sriperumpudur in

1991. There are harrowing tales of innocent citizens accused of

petty offences languishing in jails as under-trial prisoners for

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decades. Most often, the time spent in prison during trial

exceeds the maximum punishment permissible under law even

if the person is proved guilty.

The delays, the habitual use of English as language of

discourse even in trial courts and the extreme complexity and

the tortuous nature of our legal process made justice highly

inaccessible to a vast majority of the people. It is estimated that

India has only about 11 judges per million population, which is

among the lowest ratios in the world. The cases pending exceed

about 30 thousand per million population. Obviously it is

unrealistic to expect the law courts to deal with this abnormal

case-load or to be accessible to people. The delays, the

complexity and the unending appeals make litigation

inordinately expensive in India. While astronomical fees are

charged for legal consultation by high-priced lawyers practicing

in the higher courts, even in the lower courts cost of litigation is

prohibitive and beyond the reach of most citizens.

The failure of the justice system has several disastrous

implications in society. As Gladstone observed, the proper

function of a government is to make it easy for the people to do

good and difficult for them to do evil. The only sanction to

ensure good conduct and to prevent bad behavior in society is

swift punishment. In the absence of the state’s capacity to

enforce law and to mete out justice, rule of law has all but

collapsed . Even in civil matters, the sanctity of contracts and

agreements has lost its relevance because of the courts

incapacity to adjudicate in time. Equality before law, though

constitutionally guaranteed, has remained a notional concept

on paper. In reality the vast masses of the poor and illiterate

people are relegated to the margins of society in the absence of a

fair and effective justice system which is accessible to all. As a

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result, an extra-legal mechanism for redress of grievances and

for providing rough and ready justice has sprung up all over the

country. The foremost cause for increasing criminalisation of

society and politics is the failure of the justice system. The

Election Commission estimates that more than 700 of the 4072

legislators in all the states have criminal records against them.

Even if heroic and successful efforts are made to disqualify all

these persons with criminal record from contesting, the problem

will continue to grow unless justice administration improves

dramatically. While a section of criminal gangs indulges in

violent crime and graduates into politics using the money power

so acquired, most organised crime in recent years is involved in

informal adjudication of disputes backed by a threat of brute

force and violence. As the courts have failed to deliver justice,

there is a growing demand for such gangs which can enforce

rough and ready justice.

In a large measure, the failure of justice system meant

that no entrepreneur or businessman or even ordinary citizen

could rely on law courts to enforce contracts and agreements.

The undermining of the sanctity of contracts and agreements

has had a very debilitating impact on investment production

and economic growth. The failure of the criminal justice system

has led to the near break down of public order in many pockets

of the country. This, coupled with the many inadequacies of

functioning of the police have led to a crisis of governability in

India. The arbitrary and unaccountable functioning of the police

has led to complete alienation of many citizens from the state.

Added to this, the complete politicization of the police force led

to highly partisan crime investigation. Elected governments

have been habitually abusing their powers to drop serious

criminal charges against their supporters and to foist false

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cases against their opponents. The broad nexus between the

politician, criminals and policemen has come to stay, vitiating

the governance process and undermining social stability and

harmony.

This alarming situation calls for speedy remedial matters.

These measures should be practical and effective while they are

in consonance with the basic features of the Constitution. The

judicial reforms as envisaged should be capable of providing

speedy and efficient justice accessible to the ordinary citizens.

At the same time, they should respect and protect the

independence of the judiciary. Equally important, measures

should be taken to enforce accountability of the judiciary.

Several Law Commission reports and Police Commission reports

have eloquently made out a case for many specific and practical

judicial reforms. However, no effort has been made to

implement these recommendations. While a lot has been, and is

being said about the failure of the justice system, precious little

has been attempted to address this growing crisis. The following

are some of the major reforms that need to be implemented

without further delay.

Rural Courts for Speedy Justice

Perhaps the most important practical reform would be

constitution of rural courts for speedy justice. As already stated,

the number of judges in our society is slightly over 10 per

million population. This density is roughly ten percent of the

density of judges (per unit population) in more advanced and

law-abiding societies. Even this low number is highly skewed

with pitiful shortages in subordinate judiciary and ridiculously

large numbers in higher courts. The Supreme Court, which was

originally designed to consist of a chief justice and not more

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than 7 other judges has now been expanded to a total strength

of 26. The high courts have even larger numbers of judges. The

Andhra Pradesh High Court for instance has 39 judges! All

these hundreds of high court judges in effect sit as

constitutional courts every day with the power of interpreting

the Constitution, and quashing laws on the ground that they

are unconstitutional! In contrast the United States Supreme

Court has only 09 judges and the Supreme Court alone sits as

constitutional court, though other Federal Courts have limited

powers to interpret the Constitution. Obviously what is needed

is a substantial increase in the number of judges at the local

level giving access to the ordinary people. In addition to the

number and access, the procedures of these local courts should

be simple and uncomplicated giving room for sufficient flexibility

to render justice. These courts should use only the local

language and they should be empowered to visit the villages and

hear the cases and record evidence locally. Above all they

should be duty bound to deliver the verdict within the specified

time frame. There could be several models like the ‘gram

nyayalaya’ advocated by the Law Commission in its 114th

report. Essentially, there should be such rural courts with

special magistrates with jurisdiction over a town, or a part of a

city or a group of villages. These special magistrates should be

appointed by District Judge for a term of 3 years. They should

have exclusive civil and criminal jurisdiction of, say all civil

disputes up to Rs one lakh in civil cases and up to an

imprisonment of one year in criminal cases. In addition, certain

civil disputes arising out of implementation of agrarian reforms

and allied statutes, property disputes, family disputes and other

disputes as recommended by the Law Commission could be

entrusted to these rural courts. In civil cases there should be

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only a provision for revision by the District Judge on grounds of

improper application of law and on no other ground. In criminal

cases where imprisonment is awarded, there could be a

provision for appeal to the Sessions Judge. The procedures

must be simplified and these courts should be duty bound to

deliver a verdict within 90 days from the date of complaint.

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Indian Judicial Service

In the subordinate courts there have been inordinate

delays and varying levels of efficiency. It is high time that the

Indian Judicial Service (IJS) is created as an All India Service

under article 312 of the constitution. All the offices of the

District and Sessions Judges should be held by persons

recruited to such a service after adequate training and

exposure. Only such a meritocratic service with a competitive

recruitment, high quality uniform training and assured

standards of probity and efficiency would be able to ensure

speedy and impartial justice. A fair proportion of the High Court

Judges could be drawn from the Indian Judicial Service.

Judicial procedures

The civil and criminal procedure codes and the laws of

evidence have to be substantially revised to meet the

requirements of modern judicial administration. While the

principles underlying the procedural law are valid even to day,

in actual practice several procedures have become cumbersome,

dilatory, and often counter-productive. Simultaneously in all

trial courts the local language should be the only language

used. There should be time limits prescribed for adjudication.

The stays, and endless adjournments should be firmly curbed.

The right to get justice within one year in a criminal case and 2

years in a civil case should be constitutionally guaranteed. All

the procedural laws should be suitably amended to ensure that

such a constitutional right is enforced. There should be strict

limitation of appeals and only one appeal should be permitted in

civil cases. The appeal should be heard and verdict delivered

within 3 months in a criminal case and within 6 months in a

civil case. All stays should be prohibited except in exceptional

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circumstance for reasons specifically recorded in writing and no

stay should exceed 15 days. The time limits for adjudication

should be strictly adhered to even in cases involving stay orders.

Higher Courts

The number of judges in the higher courts should be

substantially reduced and their appellate jurisdiction should be

severely restricted. The Supreme Court jurisdiction should be

limited only to matters involving interpretation of the

Constitution or disputes between two States or Union and

States. In effect, the Supreme Court should function only as a

Constitutional Court and a Federal Court. The high courts

should not have the power to interpret the Constitution except

in matters involving the State legislation. The appellate powers

of high courts should be severely restricted in order to reduce

the case load and ensure the sanctity and authority of the high

courts. The number of judges in high courts should be

significantly reduced. Matters relating to taxation, disciplinary

action against employees and labour disputes should be

completely beyond the purview of ordinary law courts. They

should be entrusted to the special tribunals with no provision

for appeal to higher courts except on grounds of interpretation

of the Constitution. The writ jurisdiction which has now become

all-encompassing should be strictly focused on right to life,

liberty and equality before law. The creative expansion of writ

jurisdiction that has become the order of the day should be

firmly curbed. Where the writ is applicable, the courts should

have complete and unfettered powers to enforce their directives.

Judicial Commission

The present mechanism for appointment of judges of

higher courts has become very dilatory and ineffective. The

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Supreme Court’s judgement arrogating to itself the complete

power of appointment of judges has made the remedy worse

than the disease. It is absurd to assume that in a democratic

society any organ of state should perpetuate itself without any

degree of accountability to the people as the ultimate

sovereigns. Nowhere in the democratic world have the executive

and legislature been made so utterly impotent in matters

relating to judicial appointments as in India. This incestuous

practice of judiciary being managed entirely by itself is both self-

serving and often counterproductive. Society has great stakes in

judicial appointments, and judges, however exalted their

position is, are mere mortals and servants of the public.

Obviously, it is high time that a Judicial Commission of high

standing is appointed with members drawn from the judiciary,

the executive and the legislature and their recommendation is

made binding on the President in all appointments to the higher

judiciary. Similarly the provision for removal of a judge of the

Supreme Court or High Court under article 124 (clause 4) has

become inoperative in practice. As Justice Ramaswamy’s

impeachment case has amply proved, the Indian Parliament has

lost the capacity to act as a court in such impeachment trials.

As a result, under the present dispensation a judge is appointed

solely on the recommendation of the judiciary, and no judge can

ever be removed in practice no matter how horrendous his

conduct is or how inefficient his functioning is. Such a situation

can only lead to judicial terrorism and result in unmitigated

disaster to the governance process and society. Therefore the

Judicial Commission should be empowered to try an errant

judge and upon the recommendations of the Judicial

Commission the President should be empowered to remove the

judge held guilty of high crimes and misdemeanors.

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Crime Investigation

The combination of several functions including crime

investigation, riot control, intelligence gathering, and security of

state properties and protection of important citizens – all in a

single police force has had a devastating effect on criminal

justice system. The police forces have become inefficient and

increasingly partisan. As the government of the day has

complete powers over the crime investigation machinery as well

as the legal authority to drop criminal charges against the

accused, crime investigation has become a play thing of

partisan politics. It is therefore vital to create an independent

wing of police force fully in charge of crime investigation and

functioning under the direct control of independent prosecutors

appointed as constitutional functionaries. The criminal courts

should hold the prosecutors and the crime investigation police

force accountable to them in their overall functioning. Only

when crime investigation is thus insulated from the vagaries of

politics can there be any fairness and justice to ordinary

citizens. Equally important, only when crime investigation

machinery is accountable to judiciary can the obnoxious and

inhuman practice of torture, third degree and extra judicial

executions in fake encounters be stopped.

As can be seen, there is an extremely strong case for

urgent and far reaching reforms in our judiciary. For about two

decades after independence, most people reposed their faith in

the political class to govern wisely and to ensure freedom and

justice to all. Over the next two decades, as politicians have

become the objects of scorn and ridicule, the public relied

heavily upon the higher civil services for ensuring probity,

efficiency and impartiality in administration. As the

bureaucracy also has lost the trust of the general public in a

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large measure, in recent years the people have come to

recognise the judiciary as the last bulwark against the abuse of

executive authority and for providing justice. However the

judiciary is collapsing under the weight of the case load. Also

there are serious questions about the efficacy, impartiality and

integrity of judiciary at certain levels. There is an increasing

unease and disquiet about the functioning of the judiciary and

the character, competence and commitment to public service of

several judges, particularly in the subordinate judiciary. If these

challenges are not recognized immediately and if far reaching

judicial reforms are not initiated with a great sense of urgency

and devotion, the judiciary may also fall in public esteem

endangering the whole civil society and adversely affecting the

public good. The judiciary should recognize that it is an organ of

state with the sole objective of serving the public in a fair,

efficient and accountable manner. Its loyalty should only be for

public good and speedy justice and not to the convenience of

advocates or politicians or bureaucrats. We have been

singularly fortunate that several outstanding judges over the

decades have ensured that judiciary can function in an

independent and fearless manner. The time has now come when

concerted efforts should be made to make judiciary efficient and

effective without usurping the functions of the other organs of

state.

Report of Judicial Reforms Committee Appointed in

Various States

Apart from the above three Committees which worked at

all India level, some Committees were appointed in different

States to look into the problem of delay and other matters

concerning judicial administration.

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One such Committee was in West Bengal, constituted in 1949,

under the chairmanship of Sir Tervor Harries, the then Chief

Justice of the Calcutta High Court. Another committee was

constituted in 1950, in Uttar Pradesh under the chairmanship

of Mr. Justice K.N. Wanchoo.

Other Reports of the Law Commission

The successive Law Commissions in their various reports

viz; 77th, 79th, 97th, 99th, 124th, etc., have dealt with the

pendency of cases in the courts and had made several

recommendations to expedite the disposal in various courts of

the country.

Malimath Committee, 1989-90

To specifically make an in-depth study of the problem of

arrears in the High Courts and Subordinate Courts, a

Committee of Chief Justices of High Courts under the

chairmanship of Justice V.S. Malimath, the then Chief Justice

of Kerala High Court was constituted by the Government in

January, 1989. The Committee inter-alia, examined as many as

16 reports of the earlier such committees and reports submitted

by the 11th Law Commission. The Chief Justices Conference

held in 1990 considered the recommendations made by the

Malimath Committee and passed certain resolutions with regard

to certain recommendations. The Report of the Malimath

Committee was received by the Government in 1991. The

recommendations covering various aspects like jurisdictional

and procedural modifications/ improvements in the judiciary;

improvements in the infrastructural facilities including

modernization of office equipments in courts and in day-to-day

working of the courts, setting up of Conciliation Courts and also

making it applicable to proceedings before Motor Accidental

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Claims Tribunals, etc., were forwarded to all the High

Courts/State Governments/UT Administrations for necessary

follow-up action. The recommendations pertaining to Central

Ministries/Departments were forwarded to them for making

suitable amendment in Civil Procedure Code, Criminal

Procedure Code, Indian Divorce Act, Commissions of Inquiry

Act, Article 226 and 227 of the Constitution, extension of

jurisdiction of Central Administrative Tribunal to the employees

of the universities, setting up of Labour Tribunals etc. The

matter was pursued by the Department of Justice, Ministry of

Law and Justice with all concerned.

Law Ministers' Conference

A meeting of the Law Secretaries and Law Ministers of the

States/UTs was organized at Bangalore in October, 1992 so as

to implement the recommendations made by the Malimath

Committee. As per the decision taken in the Conference, three

working groups of State Law Ministers were constituted to

suggest measures for the implementation of the

recommendations of the Malimath Committee. The report of

these working Groups was discussed in the Chief Ministers and

Chief Justices Conference held on 4th December, 1993 under

the chairmanship of the Prime Minister. The Chief Ministers and

Chief Justices among other things, were also of the opinion that

courts were not in a position to bear the entire burden of justice

system and that a number of disputes lent themselves to

resolution by alternative modes such as arbitration, mediation

and negotiation. They emphasised the desirability of resolving

disputes taking advantage of alternative dispute resolution. The

Conference had made a number of recommendations relating to

appointment of Judges, judge strength, transfer of judges,

appointment of Judges as Commission of Enquiry, alternative

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dispute resolution, appeals and original jurisdiction,

appointment of a committee by the State Governments for the

elimination of frivolous litigation, appointment of special judicial

magistrates to deal with petty criminal cases and traffic cases,

special summary procedure for rural litigation, modernisation of

Courts, curtailment of oral arguments, etc. These

recommendations were already been commended to all the State

Governments/UT Administrations and High Courts and Central

Ministries for necessary follow up action. Three working Groups

of Law Ministers, therefore met to consider the

recommendations contained in the above Resolution with regard

to rural litigation, arrears of cases in administrative tribunals

and alternative disputes resolutions. The implementation of

December, 1993, resolution and recommendations made by the

working groups were reviewed by the Law Ministers at their

plenary meeting held in Calcutta and Hyderabad in November,

1994 and November, 1995 respectively. The resolutions adopted

in these meetings have been commended to all concerned

authorities for necessary follow-up action. A conference of Law

Ministers was held on 30th June and 1st July, 1997. The

conference discussed the various issues relating to appointment

of judges in courts, creation of an All India Judicial Service,

pendency of cases in courts and measures for their expeditious

disposal and the 154th Report of the Law Commission on

Judicial Reforms.

154th Report of the Law Commission on Cr. PC. (1996)

The Law Commission of India submitted its 154th Report

on the Code of Criminal Procedure, 1973 has suggested for

reaching amendments for speedy justice in criminal cases such

as separate and exclusive cadre of investigating and prosecuting

agencies, dispensing with summons procedure, trial on day-to-

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day basis, extensive compounding of offences, plea-bargaining

compensation to crime victims, constitution of Nyaya

Panchayats, protection to women, restriction on adjournments

like in Code of Civil Procedure.

156th Report of the Law Commission on the Indian Penal

Code (1997)

The Law Commission undertook a comprehensive review

of the Indian Penal Code and submitted its 156th Report. The

Report, inter alia, suggested extensive amendments in various

offences and their punishments including inclusion of new

offences considering socio-economic scenario in the country.

The Report was tabled in Lok Sabha and Rajya Sabha on 8th and

9th June, 1998, respectively. The Report of the Law Commission

is being examined/processed in consultation with the State

Governments as the Criminal Law is a subject in the

Concurrent List of the Constitution and Criminal Laws are

administered through the State Governments.

Report of the Shetty Commission (1999)

The First National Judicial pay Commission in its Report

submitted in 1993 has suggested for increase in court hours by

36 hour per week and for reduction in vacation period by 15

days in a year. The Shetty Commission has also recommended

for constituting of the All India Judicial Service.

Amendments in the Code of Civil Procedure, 1999 and

2002

The amendments in CPC may be termed as Magna Carta

for the Indian Judicial System. The amendments have been

implemented with effect from July 01, 2002. The amendments

inter alia provide for time limits at various stages of a suit like

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service of plaint to defendant within 30 days of institution of

suit even through courier filing of written statement within 30

days extendable upto 90 days, restriction of number of

adjournments to three to a party to a suit, examination of

witnesses through Commissioner's general power of court to

extend time upto 30 days, delivery of judgement within 60 days

after the having compulsory pre litigative settlement before the

cases are taken up by the regular courts etc.

Recommendations of the National Commission to Review

the Working of the Constitution, (2002)

The Commission has suggested for more liberal

disciplinary action against High Court Judges, the National

Judicial Commission for appointment of the judges of the

Supreme Court, 'truth' as defence under the Contempt of

Courts Act, more financial resources and financial autonomy to

the judiciary, proper mechanism for training of presiding

officers of courts, delivery of judgement within 90 days, award of

exemplary costs for abuse of process of law, encouragement of

ADR System of Urban litigation and setting up of Gram

Nyayalayas, evidence recording by Commissions, time bound

clearance of arrears, two tiers of subordinate judiciary only etc.

192

References

1. World Bank, World Development Report: The State in a

changing world (1997) 100.

2. Richard Bilder and Brian Z. Tamanaha, Law and

Development, 89 AM. J. Int’l. L. 470, 484 (1995).

3. Ronald J. Daniels, Michael Trebilcock and Joshua

Rosensweig, The Political Economy of Rule of Law Reform

in Developing Countries (2004) at

www.wdi.bus.umich.edu/

global_conf/papers/revised/Trebilcock_Michael.pdf

4. John Hewko, Foreign Direct Investment: Does the Rule of

Law Matter? (2002) (unpublished manuscript, on file with

the Rule of Law Series).

5. Rick Messick, Judicial Reform and Economic

Development: A Survey of the Issues, 14(1) The World

Bank Res. Observer, 117, 120 (1999).

6. Government of India, (1997), Report of the Committee on

Rationalization of Classification of Prisoners in Tihar Jail,

New Delhi.

7. V. Nagaraj, Labor Laws, in M. MENON, N.R. AND B.

DEBROY (EDS.) LEGAL DIMENSIONS OF ECONOMIC

REFORMS (1991) 31–80.

8. Arnab Kumar Hazra and Maja B. Micevska, The Problem

of Court Congestion: Evidence From Indian Lower Courts

(2004), available at

www.swan.ac.uk/economics/res2004/program/

papers/HazraMicevska.pdf.

9. Maria Dakolias, Court Performance Around the World: A

Comparative Perspective (1999) available at: www-

193

wds.worldbank.org/servlet/WDS_IBank_Servlet?pcont=de

tails&eid=000094946_99090805303789.

10. Arnab Kumar Hazra, (2004), Institutional Reforms in the

Enforcement of Criminal Justice in India, in BIBEK

DEBROY (EDS.), AGENDA FOR IMPROVING

GOVERNANCE (2004).

11. Sanjeev Gupta et al., “Does Corruption Affect Income

Inequality and Poverty,” (May 1998), available at

http://www.imf.org/ external/pubs/ft/wp/wp9876.pdf

12. 14 V. Nagaraj, Labor Laws, in M. MENON, N.R. AND B.

DEBROY (EDS.) LEGAL DIMENSIONS OF ECONOMIC

REFORMS (1991) 31–80.

13. T R Andhyarujina, Judicial Accountability: India’s

Methods and Experience, “Judges and Judicial

Accountability, Cyrus Das, K Chandra, 2004, pp 101-130

14. Government of India. (2007). Crime in India 2006,

National Crime Records Bureau, Ministry of Home Affairs,

Government of India, New Delhi.

15. S.A. Paramhans, Foundations of Indian Mathematics an

Geometrical Ideas in the Sulba Sutras, in

COMPREHENSIVE HISTORY, supra note 314, II, at 665 –

97.

16. Blanke, Thomas, ed. Collective Bargaining Wages in

Comparative Perspective: Germany, France, the

Netherlands, Sweden and the United Kingdom. The

Hague: Kluwer Law International, 2005.

17. Blume, Peter, ed. Nordic Data Protection Law. 1st ed.

Uppsala: Iustus Förl., 2001.

194

18. Bolle, Caroline. A comparative overview of the mandatory

bid rule in Belgium, France, Germany and the United

Kingdom. 1st ed. Baden-Baden: Nomos, 2008.

19. Bona, Marco, ed. Personal injury compensation in

Europe: a comparative study of and guide to: right to

claim full and fair compensation, protection of primary

victims, recoverable losses, psychiatric damage, limitation

law, harmonisation. Deventer: Kluwer Law, 2003

20. Clausen, Nis Jul. Takeover Bids: The Danish, Norwegian

And Swedish Regulations To Be Challenged By The 13th

Company Law Directive. 1st ed. Copenhagen: DJØF

Publication, 1998.

21. Banerjee, D., Subrahmanyam A. and Vijay Kumar ed;

Judicial Activism, Dimensions and Directions, published

by Vikas Publishing House Pvt. Ltd., New Delhi, 2002.

total pages 467.

22. Chatterjee, B.K.; A Quest for Judicial Reform, AIR, Vol.

88, Part-1050, June 2001, pages-177 to 180.

23. Desai, D.A.; Law Reforms in India, Ashok Publishing

House, Guwahati-781005, 1990, total pages-106.

24. Dr. Narayan, Jayaprakash; Judicial Reforms -Need of the

Hour, Lok Satta, Post Box No. 100, Hyderabad-500 004.

25. Justice Issrani, K.L.; Judicial Reforms, published in

Central India Law Quarterly, Vol. XIV January-March,

2001, part pages 8-11.

26. Justice Madan, Arun; Judicial System and Reforms -AIR

2000, Vol. 87, Rajasthan Section, pages 104-118.

195

27. Justice Venkatchaliah, M.N.; Technology will Make All the

Difference, published in Sunday, Times of India, New

Delhi, July 07, 2002.

28. Rao, B.V.; Crisis in Indian Judiciary, published by Legal

Aid Centre, White House, Vijaya Nasar Colony,

Hyderabad-500051, 2001, total pages 195.

29. Rao C. Ramkrishna; Judicial Reforms, published by

Preethi Publications, Bangalore, 1991.

Chapter : Five

Structure of Courts of Uttar Pradesh

196

Chapter Five

Structure of Courts of Uttar Pradesh

India's unitary judicial system is made up of the Supreme

Court of India at the national level, for the entire country and

the 24 High Courts at the State & Union territory level. These

courts have jurisdiction over a state, a union territory or a

group of states and union territories. Below the High Courts are

a hierarchy of subordinate courts such as the civil courts,

family courts, criminal courts and various other district courts.

High Courts are instituted as constitutional courts under Part

VI, Chapter V, Article 214 of the Indian Constitution.

The High Courts are the principal civil courts of original

jurisdiction in the state along with District Courts which are

subordinate to the High courts. However, High courts exercise

their original civil and criminal jurisdiction only if the courts

subordinate to the High court in the state are not competent

(not authorized by law) to try such matters for lack of pecuniary,

territorial jurisdiction. High courts may also enjoy original

jurisdiction in certain matters if so designated specifically in a

state or Federal law. e.g.: Company law cases are instituted only

in a High court.

However, primarily the work of most High Courts consists

of Appeals from lower courts and writ petitions in terms of

Article 226 of the Constitution of India. Writ Jurisdiction is also

original jurisdiction of High Court. The precise territorial

jurisdiction of each High Court varies. The appeal order is the

following: tehsil-kotwali-criminal/civil courts - district - high

court - Supreme Court.

197

Each state is divided into judicial districts presided over

by a 'District and Sessions Judge'. He is known as a District

Judge when he presides over a civil case and a Sessions Judge

when he presides over a criminal case. He is the highest judicial

authority below a High Court judge. Below him, there are courts

of civil jurisdiction, known by different names in different states.

Under Article 141 of the Constitution of India, all courts

in India (which includes High courts) are bound by the

judgments and orders of the Supreme Court of India by

precedence.

Judges in a High Court are appointed by the President of

India in consultation with the Chief Justice of India and the

governor of the state. High Courts are headed by a Chief

Justice. The Chief Justices are ranked 14 (in their state) and 17

(outside their state) in the Indian order of precedence. The

number of judges in a court is decided by dividing the average

institution of main cases during the last five years by the

national average, or the average rate of disposal of main cases

per judge per year in that High Court, whichever is higher.

The Calcutta High Court is the oldest High Court in the

country, established on 2 July 1862. High courts which handle

a large number of cases of a particular region, have permanent

benches (or a branch of the court) established there. Benches

are also present in states which come under the jurisdiction of a

court outside its territorial limits. Smaller states with few cases

may have circuit benches established. Circuit benches (known

as circuit courts in some parts of the world) are temporary

courts which hold proceedings for a few selected months in a

year. Thus cases built up during this interim period are judged

when the circuit court is in session.

198

High Court of Allahabad:

The Allahabad High Court or the High Court of Judicature

at Allahabad is a high court having jurisdiction over the Indian

state of Uttar Pradesh since 1869. It was one of the first high

courts to be established in India.

History

By the Indian High Courts Act passed by British

Parliament in 1861, provision was made, not only for the

replacement of the Supreme Courts of Calcutta, Madras and

Bombay and for the establishment of High Courts in their

places, but for the establishment of a High Court by Letters

Patent in any other part of Her Majesty’s territories not already

included in the jurisdiction of another High Court. In the year

1866, the High Court of Judicature for the North-Western

Provinces came into existence at Agra under Letters Patent of

the 17th March, 1866, replacing the old Sudder Diwanny

Adawlat.

Sir Walter Morgan, Barrister-at-Law and Mr. Simpson

were appointed the first Chief Justice and the first Registrar

respectively of High Court of North-Western Provinces.

The seat of the High Court for the North-Western

Provinces was shifted from Agra to Allahabad in 1869 and its

designation was altered to ‘the High Court of Judicature at

Allahabad’ by a supplementary Letters patent issued on March

11, 1919.

The Oudh Chief Court at Lucknow, replacing the Oudh

Judicial Commissioner’s Court, was established on November 2,

1925 not by Letters Patent but by the Oudh Civil Courts Act, IV

of 1925, enacted by the U.P. Legislature with the previous

199

sanction of the Governor-General to the passing of this Act, as

required by the Government of India Act, 1919s. 80-A(3).

By the U.P. High Court Amalgamation Order, 1948, the

Chief Court of Oudh was amalgamated with the High Court of

Allahabad and the new High Court was conferred the

jurisdiction of both the Courts so amalgamated. By the

Amalgamation Order the jurisdiction of the Court under the

Letters Patent and that of the Chief Court under the Oudh

Courts Act was preserved.

In July, 1949 the States Merger (Governor’s Provinces)

order was passed which was amended in November the States

Merger (United Provinces) Order, 1949 whereby the powers of

the Government of some Indian States specified in the

Schedule, which had vested in the Dominion Government were

transferred to the adjoining Governors’ Provinces. In Schedule

VII, Rampur, Benaras and Tehri Garhwal were the States

specified, and by section 3 the said states were to be

administered in all respects as if they formed part of the

absorbing province.

On the eve of the Republic Day celebrations on the 26th

January, 1950 the date of commencement of the Constitution of

India, the High Court of Judicature at Allahabad came to have

jurisdiction throughout the entire length and breadth of the

State of Uttar Pradesh.

By the Uttar Pradesh Reorganisation Act, 2000, State of

Uttaranchal and Uttaranchal High Court came into existence

from the midnight intervening 8 and 9 November, 2000 and in

view of section 35 of the Act, High Court at Allahabad ceased to

have jurisdiction of 13 districts falling within the territory of

State of Uttaranchal.

200

The Seat and Benches

The seat of the court is at Allahabad. It has a permanent

bench at Lucknow. The bench consists three highly qualified ex-

officio jurists, the administrative capital of the state.

At present, sanctioned strength of Judges of the High

Court of Judicature at Allahabad is 160, the highest in India.

Allahabad became the seat of Government of North-

Western Provinces and a High Court was established in 1834

but was shifted to Agra within a year. In 1868 it shifted back to

Allahabad. The former High Court was located at the

Accountant General's office at the University of Allahabad

complex.

It was originally founded as the High Court of Judicature

for the North-Western Provinces at Agra on 17 March 1866 by

the Indian High Courts Act of 1861 replacing the old Sadr

Diwani Adalat. Sir Walter Morgan, Barrister-at-Law and Mr.

Simpson were appointed the first Chief Justice and the first

Registrar respectively of the High Court of North-Western

Provinces.

The location High Court for the North-Western Provinces

was shifted from Agra to Allahabad in 1869 and the name was

correspondingly changed to the High Court of Judicature at

Allahabad from 11 March 1919.

On 2 November 1925, the Oudh Judicial Commissioner's

Court was replaced by the Oudh Chief Court at Lucknow by the

Oudh Civil Courts Act of 1925, enacted by the United Provinces

Legislature with the previous sanction of the Governor General

the passing of this Act.

201

On February 25, 1948, the Uttar Pradesh Legislative

Assembly passed a resolution requesting the Governor to

submit to the Governor General the request of the Assembly to

the effect that the High Court of Judicature at Allahabad and

the Oudh Chief Court be amalgamated. Consequently, the Chief

Court of Oudh was amalgamated with the High Court of

Allahabad.

When the state of Uttaranchal, now known as

Uttarakhand, was carved out of Uttar Pradesh in 2000, this

high court ceased to have jurisdiction over the districts falling in

Uttaranchal. Allahabad High court was built by Khan saheb

Nizamuddin of Loha Mundi, Agra, India. He also donated the

water fountain to the High court.

Chief Justice

The Chief Justice is Hon’ble Mr. Justice Dhananjaya Y.

Chandrachud. He was sworn in as Chief Justice of the

Allahabad High Court on 31 October 2013. He also served as

the sitting judge of the Bombay High Court.

Former Chief Justices

S.No Chief Justice Term

1 Hon'ble Sir Walter Morgan 1866–1871

2 Hon'ble Sir Robert Stuart 1871–1884

3 Hon'ble Sir William Comer

Petheram 1884–1886

4 Hon'ble Sir John Edge 1886–1898

202

5 Hon'ble Sir Louis Addin Kershaw 1898

6 Hon'ble Sir Arthur Strachey 1898–1901

7 Hon'ble Sir John Stanley 1901–1911

8 Hon'ble Sir Henry Richards 1911–1919

9 Hon'ble Sir Edward Grimwood

Mears 1919–1932

10 Hon'ble Sir Shah Muhammad Sulaiman 1932–1937

11 Hon'ble Sir John Gibb Thom 1937–1941

12 Hon'ble Sir Iqbal Ahmad 1941–1946

13 Hon'ble Mr. Kamala Kanta Verma 1946–1947

14 Hon'ble Mr. Bidhu Bhushan Malik 1947–1955

15 Hon'ble Sir O.H. Mootham 1955–1961

16 Hon'ble Mr. Manulal Chunilal

Desai 1961–1966

17 Hon'ble Mr. Vashishtha Bhargava 25 February 1966–7

August 1966

18 Hon'ble Mr. Nasirullah Beg 1966–1967

19 Hon'ble Mr. Vidyadhar Govind Oak 1967–1971

20 Hon'ble Mr. Shashi Kanta Verma 1971–1973

203

21 Hon'ble Mr. Dhatri Saran Mathur 1973–1974

22 Hon'ble Mr. Kunwar Bahadur

Asthana 1974–1977

23 Hon'ble Mr. D.M. Chandrashekhar 1977–1978

24 Hon'ble Mr. Satish Chandra 1978–1983

25 Hon'ble Mr. Mahesh Narain Shukla 1983–1985

26 Hon'ble Mr. Hriday Nath Seth 1986

27 Hon'ble Mr. K. Jagannatha Shetty 1986–1987

28 Hon'ble Mr. Dwarka Nath Jha 1987

29 Hon'ble Mr. Amitav Banerji 1987–1988

30 Hon'ble Mr. Brahma Nath Katju 1988–1989

31 Hon'ble Mr. B. P. Jeevan Reddy 1990–1991

32 Hon'ble Mr. M. K. Mukherjee 1991–1993

33 Hon'ble Mr. S. S. Sodhi 1994–1995

34 Hon'ble Mr. A. Lakshman Rao 1995–1996

35 Hon'ble Mr. D. P. Mohapatra 1996–1998

36 Hon'ble Mr. N. K. Mitra 1999–2000

37 Hon'ble Mr. S K Sen 8 May 2000–24

November 2002

204

38 Hon'ble Mr. Tarun Chatterjee 31 January 2003–26

August 2004

39 Hon'ble Mr. Ajoy Nath Ray 11 January 2005–26

January 2007

40 Hon'ble Mr. H L Gokhale 7 March 2007–8

March 2009

41 Hon'ble Mr. C Kumar Prasad 20 March 2009–7

February 2010

42 Hon'ble Mr. Ferdino Inacio Rebello 26 June 2010-30 July

2011

43 Hon'ble Mr. Syed Rafat Alam 4 August 2011 - 8

August 2012

District Courts in India

The District Courts of India the district courts the State

governments in India for every district or for one or more

districts together taking into account the number of cases,

population distribution in the district. They administer justice

in India at a district level. These courts are under administrative

control of the High Court of the State to which the district

concerned belongs. The decisions of District court are subject to

the appellate jurisdiction of the High court.

Composition of District courts

The highest court in each district is that of the District

and Sessions Judge. This is the principal court of original civil

jurisdiction besides High Court of the State and which derives

205

its jurisdiction in civil matters primarily from the code of civil

procedure. The district court is also a court of Sessions when it

exercises its jurisdiction on criminal matters under Code of

Criminal procedure. The district court is presided over by one

District Judge appointed by the state Government. In addition

to the district judge there may be number of Additional District

Judges and Assistant District Judges depending on the

workload. The Additional District Judge and the court presided

have equivalent jurisdiction as the District Judge and his

district court.

However, the district judge has supervisory control over

Additional and Assistant District Judges, including decisions on

allocation of work among them. The District and Sessions judge

is often referred to as "district judge" when he presides over civil

matters and "sessions judge" when he presides over criminal

matters. Being the highest judge at district level, the District

Judge also enjoys the power to manage the state funds allocated

for the development of judiciary in the district.

The district judge is also called "Metropolitan session

judge" when he is presiding over a district court in a city which

is designated "Metropolitan area" by the state Government.

Other courts subordinated to district court in the Metropolitan

area are also referred to with "metropolitan" prefixed to the

usual designation. An area is designated a metropolitan area by

the concerned state Government if population of the area

exceeds one million.

Appointment and Removal

The judges of subordinate courts are appointed by the

Governor in consultation with the Chief Justice of the High

Court of the concerned State. A minimum of seven years of

206

practise as a lawyer at bar is a necessary qualification. Upon a

written examination and oral interview by a committee of High

court judges, the appointment of district judges is notified by

the state Government. This is referred to as direct recruitment.

District judges are also appointed by way of elevation of judges

from courts subordinate to district courts provided they fulfill

the minimum years of service.

The next level of ascendancy for a district judge who

served sufficient number of years is the post of High court

judge. High court Judges are usually appointed from a pool of

advocates practising at the Bar of the High court and District

Judges who served for sufficient number of years.

A district judge or Additional judge may be removed from

his office by the state Government in consultation with the High

court. By virtue of his office a district judge often occupies

privileged position in the district alongside administrative heads

of the district like the collector.

207

Jurisdiction

The District Court or Additional District court exercises

jurisdiction both on original side and appellate side in civil and

criminal matters arising in the District. The territorial and

pecuniary jurisdiction in civil matters is usually set in

concerned state enactments on the subject of civil courts. On

the criminal side, jurisdiction is exclusively derived from the

criminal procedure code. As per this code the maximum

sentence a district court may award to a convict is capital

punishment.

The district court has appellate jurisdiction over all

subordinate courts situated in the district on both civil and

criminal matters. Subordinate courts, on the civil side (in

ascending order) are, Junior Civil Judge Court, Principal Junior

Civil Judge Court, Senior Civil Judge Court (also called sub-

court). Subordinate courts, on the criminal side (in ascending

order) are, Second Class Judicial Magistrate Court, First Class

Judicial Magistrate Court, Chief Judicial Magistrate Court.

Certain matters on criminal side or civil side cannot be

tried by a lesser court than a district court. This gives the

District Court original jurisdiction in such matters. Appeals

from the district courts lie to the High Court of the concerned

state.

In India Supreme Court having jurisdiction all over Indian

Territory, High Court with concerning state’s territorial

jurisdiction, various district and subordinate courts have been

established in hierarchical order to provide justice at district

level under the leadership of District and Sessions Judge for

each district. Civil and criminal both type of courts are under

direct control and supervision of District and Sessions Judge;

208

civil court decide the cases of civil nature e.g. cases of property,

cases involving right to any office, property and exchange etc.

Whereas, criminal courts decide the cases like thefts, dacoity,

murders and cases concerning with the problems of law and

order etc.

In civil matters under District Judge there are Civil Judge

(S.D.), Additional Civil Judges (S.D.), Civil Judge (J.D.),

Additional Civil Judges (J.D.). To divide the cases of criminal

nature there are Chief Judicial Magistrate (CJM), Additional

Chief Judicial Magistrates and Judicial Magistrates.

In the district of Lucknow there are 64 District and

subordinate courts. (out of which Twenty one court are lying

vacant i.e. having no presiding officer, in other words out of 64

courts only 43 courts are working), which has location wise

(building wise) been given below with the name of presiding

officer (as on 27 October 2005) therein: -

Jurisdiction of Civil Courts: -

1. The Small cause Courts have jurisdiction in money suits

upto Rs. 5,000/-, in rent cases up to Rs. 25,000/-, in P.A.

(Act No. 13 of 1972) cases and House tax appeal (against the

assessment order of Nagar Nigam) and also cases of

insolvency Act;

2. The courts of Civil Judge (J.D.) have jurisdiction in the cases

in which the valuation of the suit is up to Rs. 25,000/-;

3. The courts of Civil Judge (S.D.) have jurisdiction of all civil

cases valuation of which is above 25,000/- and also

jurisdiction of Bank and Company matters up to Rs. 5 Lacks

only (over 5 Lacks in company and Bank matters jurisdiction

lies with High Court).

209

4. District Judge Court, has appellate jurisdiction in the cases

in which the valuation is up to Rs. 7 Lack and over Rs. 1

Lack the appellate jurisdiction lies with the High court. This

court can try revision with no limit of valuation.

5. Family Court: - All the cases concerning family laws

irrespective the nature of proceeding whether civil or criminal

are tried by Family Court only.

6. Jurisdiction of Criminal Courts: -

i. A Sessions Judge or an Additional Sessions Judge may pass

any sentence authorized by law, but a sentence of death

passed by him is subject to confirmation by the High Court.

ii. CJM or ACJM may pass any sentence authorized by law

except sentence of (a) death (b) life imprisonment or (c)

imprisonment exceeding seven years and may also pass fine

or both.

iii. Judicial Magistrate may pass any sentence authorized by law

not exceeding 3 years imprisonment or fine not exceeding Rs.

5,000/- or both.

7. Every district has a number of Police Stations and a

particular area is allotted to one Police Station for the

maintenance of law an order. The cases of a police station

are tried by a particular court which is to be decided by CJM

in consultation with District and Sessions Judge.

210

8. Salary Structure of Judges and Magistrates: -

1. J.M. or Civil Judge (J.D.) Rs. 9,000 – 250 – 14,550

2.

C.J.M. (or ACJM) or Civil

Judge (S.D.) [Selection

Grade for CJ (J.D.)]

Rs. 11,000 – 300 –

16,200

3. Selection grade for Civil

Judge (S.D.) or for C.J.M.

Rs. 12,850 – 300 –

13,150 – 350 – 15,900 –

400 – 17,550

4. Additional District Judge Rs. 16,750 – 400 –

19,150 – 450 – 20,500

5.

District and Sessions

Judge (Selection Grade for

Additional District and

Session Judge)

Rs. 18,750 – 400 –

22,850

6. Selection Grade for District

and Sessions Judge

Rs. 22,850 – 500 –

24,850

Selection Grade: -

When a judicial officer completes his 5 years in one grade

and his service is satisfactory then this grade is awarded. D.A.

and other facilities are given as per rules of state Government

declared in this respect from time to time.

211

Abbreviations Used: -

Addl. Additional

AC Act Anti Corruption Act

C.J. Civil Judge

EC Act Essential Commodities Act

J.D. Junior Division

J.M. Judicial Magistrate

POTA Prevention of Terrorist Antiquities Act

P.S. Police Station

S.D. Senior Division

Spl. Judge Special Judge

Chapter : Six

Evaluation of Judicial Response

212

Chapter Six

Evaluation of Judicial Response to

the Peoples’ Grievances

The efficacy of political as well as administrative system

lies in the fact that how far they are effective in redressing the

peoples’ grievances and educating them in a democratic culture.

This fact has aptly been analysed by Almond in following

perspective -

Input: -

The input to the system is supplied from the environment

(social, cultural, economic and physical). The input consists of

demand and support. The peoples’ grievances constitute

demand for justice. For this purpose advocates provides

support as constituting input. Thus the peoples’ grievances are

reduced in the form of plaint or written statement (in civil

matters) and charge sheet or complaint (in criminal matters).

This process is input to the district judicial system.

Transformation or process of change in the system: -

The change process takes place according to law. Firstly,

documents are examined by the system for the purpose of

maintainability and after acceptance the court processes (e.g.

summons, warrant) are issued as the case may be. After hearing

both the sides (parties) of the proceeding decision is given.

213

Output: -

The output of the system comes in the form of judicial

decision or order, the cases which are yet to decide remains

under pendency. Output may be of four type viz. taking output

such as realization or recovery of money, fine etc.; controller

output such as controlling the human behaviour by injunction,

bond etc.; distributive output such as allocation of services,

benefit opportunities etc; symbolic output such as declaration

of rights (declaratory suit) against any particular person or the

world as the case may be.

Feed back: -

The decision and pendency may also provide feedback to

the system. The party to the proceeding who is not satisfied by

the decision may provide feedback to the system through the

appeals, review and revision etc.

From the above it is evident that efficiency of the system

lies in the fact that the peoples’ demand is aptly by the

administrative response. In case if the administrative response

is inadequate the system faces challenge of collapse. In the case

of Judiciary this parameter may be analyzed in the form that if

the pendency of the cases are heavy then peoples’ trust in this

sub system is likely to dwindle and in that case the people may

like to sort out their differences out of court which may lead

even the eruption of violence and more intense criminal

outburst. Hence, it is desirable on the part of the judicial

system that its response against the case instituted in the court

214

of law should be apt effective and timely. To evaluate this I have

gathered the relevant statistics of the year 2009, 2010, 2011,

2012 and analysed the same in four categories i.e. pendency of

the cases at the beginning of the period, institution of the cases

during the period, disposal made during the period and finally

pendency put forward for the subsequent period in respect of

Sessions Courts, Magistrate Courts, District Courts (appellate

jurisdiction) and Subordinate Courts in civil cases. In the case

of criminal courts in general the cases instituted under section

302, 304-B I.P.C., cases under special acts cases regarding

Criminal appeals and in revision and miscellaneous case have

been taken into consideration. Similarly, in respect of

magistrate courts the cases pertaining to police challan,

complaint cases: MV Act, Food Adulteration Act has been taken

into consideration. The statistics pertaining to the year 2012

indicate that pendency of the cases in relation to the pendency

at the beginning of the year has escalated as indicated in the

table below.

215

Analysis of Criminal Cases

Sessions Court

Table 6.1.1

S.

No. Period

Pendency

at the

beginning

Institution

during the

period

Disposal

during

the

period

Pendency

Remained Particulars

1.

01-01-12

to

30-06-12

8497 5826 5959 8364

Cases Under S.

302, 304-B IPC,

other IPC cases

Under Special

Acts Criminal

appeals

Criminal

Revisions

Criminal

Miscellaneous

cases

2.

01-07-11

to

31-12-11

8815 8118 8436 8497

3.

01-01-11

to

30-06-11

9439 2527 3115 8815

4.

01-07-10

to

31-12-10

10029 3432 4022 9439

5.

01-01-10

to

30-06-10

9307 4489 4767 10029

6.

01-07-09

to

31-12-09

8663 1430 1047 9046

Cases Under

Section 302,

304 B, IPC

other I.P.C. and

cases under

special acts.

7.

01-01-09

to

30-06-09

8555 822 714 8663

216

Magistrate Court

Table 6.1.2

S.No. Period

Penden

cy

at the

beginni

ng

Institution

during the

period

Disposal

during

the

period

Pendency

Remained Particulars

1. 01-01-12

to

30-06-12

55848 22821 21824 56845

Police

Challan,

Complaint

cases, M.V.

Act, Food

Adulteration

Act other

cases

2. 01-07-11

to

31-12-11

52845 30588 27585 55848

3. 01-01-11

to

30-06-11

50999 18501 16655 52845

4. 01-07-10

to

31-12-10

51822 20994 21817 50999

5. 01-01-10

to

30-06-10

50382 16597 15157 51822

6. 01-07-09

to

31-12-09

46436 29281 30274 45443

7. 01-01-09

to

30-06-09

45836 15611 15011 46436

So is the condition of first part of year 2012. However, it

has registered a decline in the subsequent period. At the very

outset the analysis speaks the tendency of the common people

of involving themselves in litigation, however, it also indicates

the lopsided efficiency of the judiciary. The fact has been

217

admitted by the litigants as well as advocates in their response

pattern, analysed and described in the subsequent chapter.

Sessions court is considered to be a senior and serious court of

law in comparison. To this in the lower court the situation is not

very rosy. The first half year of 2012, 2011, 2010 and 2009

registers an escalation in the pendency of the cases. Only in the

late half of 2012 and 2009 decline has been registered. The rate

of disposal in these courts is rather slow and low. This again

cast a negative aspersion against the legal system of the country

at grass root level.

It may be mentioned here that the peoples’ trust in the

judicial system is an indicator of their faith in the political and

administrative system. However, statistics presented in the

tables provide a negative image. The two reasons mentioned

above i.e. people’s litigant tendency and lopsided efficiency of

magistracy are again confirmed here.

However, this picture takes a ‘U’ turn in civil cases where

it is presumed that the matter may take much more time but

the study indicate that throughout the period of study the

pendency of cases in the court of District Judge in matters of

civil cases have shown a decline. So is the position in the

subordinate courts as indicated in the table below.

218

District Judge Court (Appellate Jurisdiction)

Table 6.1.3

S.No. Period

Pendency

of the

beginning

Institut

ion Disposal

Pendency

Remained Particulars

1. 01-01-12

to

30-06-12

1631 530 550 1611

Civil

appeal,

Miscellane

ous appeal,

ULCA, Tax

appeal,

Civil

revision

S.C.C.

revision

2. 01-07-11

to

31-12-11

1559 1358 1286 1631

3. 01-01-11

to

30-06-11

2031 702 1174 1559

4. 01-07-10

to

31-12-10

2356 869 1194 2031

5. 01-01-10

to

30-06-10

2665 946 1255 2356

6. 01-07-09

to

31-12-09

24878 11165 11670 24373

Cases in

the court of

District

Judge

Additional

D.J.Special

Judges

7. 01-01-09

to

30-06-09

26710 7845 9677 24878

219

Subordinate Courts of Lucknow Judgeship

Table 6.1.4

S.No. Period

Pendency

of the

beginning

Institution Disposal Pendency

Remained Particulars

1. 01-01-12

to

30-06-12

19892 8003 7337 20555

Original

suit, S.C.C.

suit,

M.A.C.T.,

L.A.

reference,

P.A. Cases,

Election

petition,

Miscellaneo

us cases,

Execution

cases, P.A.

Miscellaneo

us,

Insolvency

cases,

Insolvency

Miscellaneo

us cases

2. 01-07-11

to

31-12-11

19747 11506 11361 19892

3. 01-01-11

to

30-06-11

20212 5076 5541 19747

4. 01-07-10

to

31-12-10

20352 11101 11241 20212

5. 01-01-10

to

30-06-10

20651 6657 6956 20352

6. 01-07-09

to

31-12-09

13918 6362 2769 17511

7. 01-01-09

to

30-06-09

15647 4172 5901 13918

It is worth while to mention here that in the court of

District Judge appeals are filed and also the cases of revision

are filed, whereas in the subordinate court original suit are filed

in respect of MACT, LA reference, P.A. (Prescribed Authority)

cases, election petition, miscellaneous cases, execution cases,

220

P.A. execution, Insolvency cases etc. Putting the two situations

in a similar sequence it becomes apparent that whereas the

court of law in case of the Criminal cases paints a gloomy

picture in respect of civil courts it is rather satisfactory. The

reasons behind this seem to be that the environment has

become so charged that the strength of institution of fresh cases

is often towards a higher side whereas the disposal is not to

expeditious; perhaps the inadequate noumber of courts and so

the strength of magistrate may be the prominent reason behind

this. In nut shell it may be mentioned that the statistics of

period under analysis is largely not satisfactory if put in the

paradigm referred above it becomes apparent that the input is

always heavy and output is always weak resulting into a

charged environment and choked channels. Obviously if the

situation is not taken care of in time the judicial system may

heavily be burdened resulting into a likely erosion of faith of

people in the system. Hence, relevant measures for improving

the strength of the judiciary, simplification of the procedure,

minimization of the time period is the need of the hour.

Detailed statistics of institution, disposal and pendency of

the cases in district court of Lucknow on half yearly basis for

the year 2012, 2011, 2010 and 2009.

221

CRIMINAL CASES

Institution, Disposal and pendency of criminal cases in the

courts of Lucknow District for the period 1-1-12 to 30-6-12:

-

Sessions Courts

Table 6.2.1

S.

No. Nature of Cases

Pendency

at the

beginning

Institution

during the

period

Disposal

during

the

period

Pendency

remained

at the

closing

1.

Cases Under

Section 302,

304-B I.P.C.

1127 638 712 1053

2. Other IPC 2900 1556 1832 2624

3. Cases under

Special Acts 3669 2678 2630 3717

4. Criminal appeal 53 46 26 73

5. Criminal

Revision 323 569 464 428

6. Miscellaneous 425 339 295 469

Total 8497 5826 5959 8364

222

Table 6.2.2

S.

No. Nature of Cases

Pendency

at the

beginning

Institution

during the

period

Disposal

during

the

period

Pendency

remained

at the

closing

1. Police Challan 32427 10886 13146 30,167

2. Complaint

Cases 9331 2771 4536 7,566

3. M.V. Act 8428 2992 2718 8702

4. Food

Adulteration Act 326 47 16 357

5. Other Cases 5336 6125 1408 10053

Total 55848 22821 21824 56845

Problems Areas and Remedial Suggestions

The great philosophers of oriental and occidental world

have equally substantiated the fact that emergence of the State

is for imparting justice and security therefore people have a

primary right for the same. To ascertain the fact we have taken

one hundred purposive sample from the cross section of the

society. Statistically the age group varies from 25-55 years. The

respondents belong to upper caste, backward caste as well as

minority and scheduled castes. Religion wise barring ten (10) all

the respondents belong to Hindu community and follow vedic

and sanatana dharma. Academically the structure of the

respondent is contained in following table: -

223

Table 6.2.3

Education Profile of Respondents

S.No. Education Number of

respondents %

1-

2-

3-

4-

5-

Upto High School

High School to

Intermediate

Inter to Postgraduate

Illiterate

Professional Qualification

38

60

78

4

20

19

30

39

2

10

Total 200 100

Note: Eleven respondents have professional qualification, (B.Ed).

Again leaving two respondents all of them are male; it

may be mentioned that this data has been gathered in the

district court compound of Lucknow. Most of the respondents

have come to the court compound in connection with criminal

cases followed by civil and revenue. The duration of which

varies from 1 year to 15 years or even more. However, most of

the cases are pending for 3 years, followed by 4-7 years and 8-

10 years has been shown in the table below. 94% of the

respondent feels that lengthy and tardy procedure of court is

responsible for such delay. However, around 33% of the

respondent feels that unavailability of evidences and witnesses

and apathetic attitude of advocates is also responsible for such

delay and it is the reason that 59% of the respondent feels that

justice is not impartial in the cases.

224

Table 6.2.4

Nature of case presented by respondent in the

court

S.No. Nature of

Case

Number of

respondents %

1-

2-

3-

4-

Revenue

Civil

Criminal

Other

24

66

68

42

12

33

34

21

Total 200 100

Table 6.2.5

Pendency of the Cases in the Courts of Law

S.No. Years Number of

respondents %

1-

2-

3-

4-

5-

0-3 years

4-7 years

8-10 years

10-15 years

above 15 years

76

48

34

28

14

38

24

17

14

7

Total 200 100

225

Table 6.2.6

Reasons for Delay (Multiple Reasons)

S.No. Nature of Reason Number of

respondents %

1-

2-

3-

4-

5-

Procedure of Kutchery

Apathy of Advocates

Unavialibiltiy of

evidence/witnesses

Personal reason

Other

130

66

68

12

4

46

24

24

4

2

Total 280 100

N.B.: Fifty respondents choose two factors and five

respondents choose 3 factors for delay.

Table 6.2.7

Impartiality of Justice

S.No. Nature of

Answer

Number of

respondents %

1-

2-

3-

Yes

No

Can not Say

30

118

52

15

59

26

Total 200 100

The partiality in the view of respondents is due to

corruption considered to be there in the courts and a negative

attitude of the judges in the legal matters.

226

Table 6.2.8

The Reasons of Partiality

S.No. Causes of partiality Number of

respondents %

1. Corruption, giving and taking 56 28

2.

Advocate do not take interest in

the case, carelessness towards the

job

11

5.5

3.

Judges has no positive attitude,

carelessness to the job, doesn’t go

to the depth of the case and are

not honest

32

16 4. Advocates are not capable 14 7

5.

Relationship with judges (of

advocates or person interested in

the case)

20

10 6. Much more number of holidays 10 5 7. Political influence or relationship 10 5

8.

Witness becomes hostile, does not

come in time, lack of security to

witnesses.

16

8 9. Complex or procedure of court 10 5 10. Greedy advocates 15 7.5

11. Influence of eminent advocates, on

the court 6

3

Total 200 100

227

Table 6.2.9

Misuse of Money in Judiciary

S.No. Nature of Answer Number of

respondents %

1-

2-

Yes

No

176

24

88

12

Total 200 100

88% of the respondents considered that there is misuse of

money in the judiciary and therefore justice is delayed or

sometimes denied. To improve the judicial system the

respondents suggest that the strength of judges as well as

courts be increased so that speedy disposal of cases may be

made. It may be noted that if justice is delayed then it

tantamount to denial. Making provision of the security to the

witnesses and pursuing lengthy legal procedures are some other

legal factors which are suggested to be rectified by respondents.

It is this reason that 51% of respondents admit that judicial

system is not successful in providing speedy justice as

comparison to good old days.

228

Table 6.2.10

Suggestions to made district judicial system

efficient

S.

No. Measure suggested

Number of

respondent

%

1.

Importance should be given to

the study of law, standard of

study of law be improved

9 9

2. Students must be made aware

towards justice 6 6

3.

Disposal of the case by speedy,

duration must be fixed to decide

a case, judges must be made

accountable for disposal

38 38

4.

Advocates must be alert, honest

for their job/case, they should

study also

17 17

5.

Number of judges be increased

and they take interest in every

case, they must be efficient,

honest and capable

46 46

6.

Nnumber of courts be increased,

all facilities should be provided

in courts

45 45

7. Number of holidays be decreased 18 18

8. Without reason dates should not

be given 22 22

9. Advocates must be capable,

incapable advocates must be 30 30

229

ousted. Test should be

conducted, for advocates to

practices in the court

10.

Security should be provided to

witnesses, testimony of

witnesses should be taken in the

initial stage of the case

(immediately after the

occurrence of event)

26 26

11.

Procedure for service of summons be simple if service of summons is failed warrant should be issued immediately

11 11

12.

Procedure of court/kutchery be simple (even an illiterate person capable to understand it) and less expansive

12 12

13. Fee of advocates be fixed 11 11

14. Capable and honest employees 3 3

15. Fabricated evidence and false

witnesses should be stopped 6 6

Total 200 100

N.B.: Three measures were asked from plaintiff.

230

Table 6.2.11

Judiciary provides speedy justice as compare to

earlier time

S. No. Nature of Answer Number of

respondents

%

1. Yes 48 24

2. No 102 51

3. Can not say 50 25

Total 200 100

Table 6.2.12

Alertness of judiciary towards weaker section of

society in comparison to earlier time

S. No. Nature of answers Number of

respondents

%

1. Yes 68 34

2. No 112 66

Total 200

66% of respondents consider that judiciary is not serious

and alert about the weaker section of the society as a result of

which their exploitation is rampant. Those who feel that the

judiciary is more cautious about the weaker section, feel that

since social awareness has increased in this section of the

society and mass media revolution is being witnessed in the

nation. Therefore, the court of law can’t remain aloof to the

cause of weaker section of the society. However, in the viewpoint

231

of 68% respondents the court is not effective and active in

comparison to earlier days. For the reason that judiciary keeps

an apathetic attitude towards the job, legal procedures is

lengthy and people have become more litigative in nature.

Advocates also fail to co-operate. These are some other reasons

as mentioned in the table below which are the factors

responsible for inactive and inefficient judiciary.

Table 6.2.13

Reasons of alertness of the judiciary towards

weaker section

S.

No. Reasons Number of

respondents

%

1. Laws has been made for the

weaker sections 58

29

2. Influence of society, awareness is

increased in society 48 24

3. Sympathy or activity of judges

towards weaker section. 36 18

4. Effect of media and mass

communication and newspapers 58

29

Total 200 100

N.B.: Four respondents gave two factors.

232

Table 6.2.14

Efficient work by local judiciary as compare to

earlier time

S. No. Nature of Answers Number of

respondents %

1. Yes 64 32 2. No 136 68 Total 200 100

Table 6.2.15

Reasons for efficient and active working by local

judiciary

S.

No. Reasons

Number of

respondents %

1. Judges have become interested to

their job 48 24

2. Wish of judge (or court) to be

famous 62 31

3. Salary has been increased,

reduction in corruption, facilities

have been increased 40 20

4. Special courts have been

established 32 16

5. Plaintiffs or defendants are aware 18 9 Total 200 100

N.B.: Six respondents gave two factors.

233

Table 6.2.16

Reasons for inefficient or inactive working of local

Judiciary

S.

No. Reasons

Number of

respondents %

1. Burden/pressure of huge litigation

on the judge/court 25

12.5

2. Apathetic nature of judges towards

their job 22 11

3. Typical judicial procedure, more and

more paper work 15 7.5

4. Dates are given due to apathetic

nature of judges and advocates 30 15

5. Much more Number of holidays 10 5

6. Files are not produced in time due

to corruption 16 8

7.

Judges does not understand their

responsibility / accountability

towards society and consider

themselves as elite class (above

common men)

12 6

8. Lack of efficient/able judges 18 9 9. Lack of facility in the courts 16 8 10. Political pressure on judiciary 14 7

11. Non co-operation, greediness, and

apathetic nature of advocates 22 11

Total 200 100

N.B.: Sixty Eight respondents gave two factors and eight

respondents gave three factors.

234

In sum and substance it seems that the common people

are not satisfied with the performance of judiciary and have

suggestions for its improvement. It is upto the policy planners to

ponder over them and suggest meaningful reforms in the system

so that justice may be ensured to common man. It may not be

out of place to mention that it is for the system to install trust

in the people for the State.

235

Members of Bar Council– A Perception

In judicial system advocates may be considered as an

agent who helps in the process of conversion of input into

output. The advocates also act as support structure; hence their

importance in the judicial process is of extreme significance.

Keeping this fact into consideration fifty purposive samples from

the advocates of Lucknow has been taken. The age factor of

these advocates varies from 26 years to 67 years and caste wise

they come from upper caste, backward caste, scheduled caste

and from minorities. Most of them are Hindus. However, some

of them come from Islamic religion and also from Jainism.

Academically apart from under graduate and post

graduate degree all of them, barring 3, have earned under

graduate degree in law. The three have earned P.G. Degree in

the profession. Out of fifty samples gender wise eight are

females and rest are male. A good number of them have

agriculture or business as an additional source of income and

they are practising law as a subsequent source. Politically forty

of the advocates have got no political affiliation. Only ten have

got political attitude with different political parties such as BSP,

SP, Congress, RLD and BJP. Most of the respondents have got 5

to 10 years practising experience followed by 10 to 15 and 20 or

more than that. Out of these advocates 34 practice only

criminal cases, 34 criminal and civil cases 6 also practice

revenue and 11 other such cases. This pattern of respondents

amply speak that the respondents come from cross section of

the society and has got sufficient experience so as to comment

on present condition of the judicial system.

To these respondents we put an initial question as to

what according to them are the problems of judicial system.

236

70% of them complained about delay in the disposal of cases

followed by complaint about the persisting corruption then a

question on the ability of sitting judges etc. This indicate that

the advocates are not happy with the performance and behviour

of Bench, it may be noted that Bench has similar complaint

about Bar. The following table provides the insight in the whole

matter.

Table 6.3.1

Other source of Income of Respondents

S.No. Nature of Answer No. of

respondents %

1. No other income source 37 74

2. Yes- having other income

source also 13 26

Total 50 100

Table 6.3.2

Political Links of Respondents

S.No. Nature of answers No. of

respondents %

1. Yes 10 20

2. No 40 80

Total 50 100

237

Table 6.3.3

Year of starting practice in Kutchery

S. No. Group of years of

practicing

No. of

respondents %

1. Prior to 1995 6 12

2. 1996 – 2000 4 8

3. 2001 – 2005 12 24

4. 2006 – 2010 20 40

5. 2011 – till date 8 16

Total 50 100

Table 6.3.4

Field of Practice by Respondents

S. No. Nature of field No. of

respondents %

1. Criminal 34 41

2. Civil 31 38

3. Revenue 6 07

4. Other 11 13

Total 82 100

N.B.: Thirty respondents practise in two fields and one practises

in three fields.

238

Table 6.3.5

Problems before District Judicial System

S.

No.

Nature of problem No. of

respondents

%

1. Delay in disposal or very low rate

of disposal 35 23

2. Witness remains absent or avoid

their presence in court 8 5

3. Taking stay orders (injunctions) by

advocates 6 4

4. Advocate don’t co-operate in

disposal, taking dates even

without any genuine reason.

13 9

5. Less number of courts 10 7

6. Less number of judge, vacant

court 12 8

7. No sitting arrangements in courts

for advocates 6 4

8. Facilities like lighting, pure

drinking water are not available 5 3

9. Corruption 27 18

10. Less attention is paid to junior

advocates, lack of chamber for

advocates

6 4

11. Judges are biased/less

able/comparatively not able 14 9

239

12. Time limit for disposal of caste is

not prescribed 8 5

Total 150 100

N.B.: Three main factors were asked from respondents.

Table 6.3.6

Economic exploitation of clients by Respondents

S.

No. Nature of answers

No. of

respondents %

1. Yes 11 22

2. No 39 78

Total 50 100

The general complaint of the litigants is that advocates

exploit them economically; to this only 22% has agreed the rest

have not agreed, to the preposition. This means there is some

iota of truth in the very allegation of the litigants that advocates

economically exploit them. It is perhaps for the reason that

there seem not to be any direction about the limit of the fee

being charged by the advocate from clients and therefore

advocates have an open field is respect of extracting fee from the

client.

240

Table 6.3.7

Prescribed limit of fee charged by advocates from

clients

S.

No. Nature of answers

No. of

respondents %

1. Yes --- ---

2. No 50 100

Total 50

However, some of the advocates tried to provide a round

figure about their fee which varies from 1,000-10,000 depending

upon the nature of the case. Almost all of them have agreed that

if need be they provide some relaxation in the fee to the litigants

and this relaxation is again on the fee. Itself and not on the

other expenditure being increased in the context of instituting a

case in the court of law.

Table 6.3.8

Minimum and maximum fee charged by

respondents from clients

S.

No. Nature of Fee

No. of

respondents %

1. According to the nature and fact of

the case 17 30

2. According to the valuation of suit 6 11

3. According to the economic status

of client 12 21

4. Reasonable 7 13

241

5. As easy 6 11

6. Rs. 1,200/- to Rs. 6,000/- 5 9

7. Rs. 3,000/- to Rs. 8,000/- 1 2

8. Rs. 1,000/- to Rs. 10,000/- 2 4

Total 56 100

N.B.: Six respondents gave two factors.

Table 6.3.9

Relaxation provided by respondents to the

economically weaker section of the society

S. No. Nature of answer No. of

respondents %

1. Yes 50 100

2. No ---

Total 50 100

All the respondents agreed to the preposition that due to

procedural delay judgment is also delayed and the reasons for

procedural delay are innumberable. However, the common

reason for such delay is date of hearing being given by the

magistrates is often for long periods, followed by the reason that

standing counsel of the government do not take interest in the

job and hence delay is there. Apart this non-appearance of the

witnesses in time because of feeling of insecurity, extending the

for written apply on the part of opponent advocates, taken

unnecessary injunction are some other reasons for delay in the

judgments. The advocates have suggestion for its redressal such

as imposition of accountability of judicial officers, reduction in

holidays of courts, increasing the strength of courts, so the

242

number of judges. The advocates also complaint against the

impartiality of the judges 66% of them admits that corruption is

rampant in the court, apart this the influence of caste,

relationship are other factors which mark them partiality in the

court of law. Thus response pattern of advocates is in just a

position than what the judges have expressed.

Table 6.3.10

Slow disposal of cases due to procedural delay

S.

No. Nature of answer

No. of

respondents %

1. Yes 50 100

2. No ---

Total 50 100

243

Table 6.3.11

Reasons accountable for procedural delay

S.

No.

Causes for delay No. of

respondents

%

1. Investigation process even in

petty offences 6 4

2. Delay in preparing records and

statements of witnesses 8 5

3. Taking unnecessary stay order

(injunction) by advocates 12 8

4. Time limit prescribed for giving

written statement is not followed 12 8

5. The courts do not observe or

follow the rules strictly 11 7

6. Witnesses do not come on the

scheduled time, avoid their

presence in the court, no security

for witnesses, importance is not

given to witnesses

15 10

7. Plenty of cases and giving long

dates 19 13

8. No mutual adjustment among

advocates in doing justice 7 5

9. Much more number of holidays 7 5

10. Officers do not take interest in

their work. 13 9

244

11. Government counsel or advocate

of adverse party do not take

interest in their job/work

18 12

12. Delay in service of summons 8 5

13. All documents of the case are not

studied by judges themselves 10 7

14. Much more paper work

formalities 4 3

Total 150 100

N.B.: Three causes were asked to tell.

Table 6.3.12

Suggestions to remove procedural delay

S.

No. Measures

No. of

respondents %

1. Instead of challan, report be

submitted directly to the court 7 10

2. Judicial officers must be strict 9 13

3. Number of holidays be reduced,

officers should sit in court full

time.

11 16

4. Witnesses be called in time with

the help of police 3 4

5. Judicial officers be made

accountable to decide case within

fixed time period

20 29

245

6. Officers should study documents

himself 4 6

7. Number of courts be increased,

court should not be vacant 10 15

8. Daily inspection of case diary in

court by judge 2 3

9. Cases be present in fast track

courts. 1 1

10. Without genuine reason stay

order should not be passed 1 1

Total 68 100

N.B.: Sixteen respondents gave two factors and one gave three

factors.

Table 6.3.13

Causes of partiality by judges

S.

No.

Causes of partiality No. of

respondents

%

1. Loss in the moral values of the

society (judges are also affected

with this)

8 13

2. Corruption, economic influence 33 55 3. Caste influence, relationship 15 25 4. Pressure politics 4 7 Total 60 100

N.B.: Three respondents said that the statement is not true.

Eleven respondents gave two factors and one gave three factors.

246

Table 6.3.14

Usefulness of measures to make justice inexpensive

and speedy

S.

No. Nature of answer

No. of

respondents %

1. Yes 44 88

2. No 6 12

Total 50 100

88% of the respondents agree that the justice must be rapid and

inexpensive. And for this it is necessary that time limit for the

disposal of cases be fixed and judges should be much alive to

the situation.

Table 6.3.15

Suggestion to make those measures meaningful

S.

No. Suggestion

No. of

respondents %

1. Time limit for disposal be fixed 33 66

2.

The judges should study the case

himself and only then pass the

order

17 34

Total 50 100

247

Table 6.3.16

Misuse of Time and Money in court

S. No. Nature of answer No. of

respondents %

1. Yes 35 70

2. No 15 30

Total 50 100

N.B.: 70% of the respondents agree to the fact that lot of time

and money is misused in court of law in effort to have the

justice.

Table 6.3.17

Nature of misuse of time and money in court

S.

No. Nature of misuse

No. of

respondents %

1. Justice is not done in time, case

runs long by which personal work

of litigants (work for earning) is

suffered

20 40

2. Money and time is spent on

transportation to and from

kutchery on dates of the case

12 24

3. Money has to given for taking

dates 11 22

4. No control of officers on courts’ 7 14

248

employees, they take money for

different procedural work

Total 50 100

As far as socialization with judges is concerned 54% of the

advocates admitted that they have got normal relationship

whereas 28% have simply professional relationship and for 18%

it is very good. 80% of advocates are not agree with the version

of the judges that the present judicial system is speedy than the

earlier one and that it is more liberal to the economically

backward classes.

Table 6.3.18

Relationship of the respondents with judges

S.

No. Nature of relationship

No. of

respondents % age

1. Good 9 18

2. Normal 27 54

3. Professional 14 28

Total 50 100

249

Table 6.3.19

Speedy justice and paying attention to the

economically backward classes by local judiciary as

compare to earlier time

S.

No. Nature of answer

No. of

respondents

%

age

1. Yes 10 20

2. No 40 80

Total 50 100

If we take into consideration the view point of advocates it

is almost contrary to the view point expressed by the judges and

in their opinion the picture of Bench is not very positive.

Though advocates are also responsible for delay in the process

of justice but their version about role of judges seem not be very

positive. Therefore, it is necessary that policy planners should

think in the direction for revamping the local judicial system

before it becomes too late to repair the trust of the common

people in the judicial system.

250

Judges’ Perception:

If litigants constitute the input of the judicial system and

lawyers converts their demand of judgment before the output

process then the judges are the pivot of the whole judicial

system. It is they on whose shoulder the hopes of the common

men rest that the system will do justice to them. Keeping this

fact in view we put forward a schedule before 15

judges/magistrate of the district Bench and tried to elicit their

views on different aspects of judicial system. The veracity of the

tenure of the judges is stretched from 1979 to 2003. Hence, we

have judges of 26 years standing to as young having a standing

of only two year, so is their age. The respondent judges’ age vary

from twenty eight years to fifty six years? Thus there is a fine

combination of youth and expertise. Leaving two female judges

the rest 13 are male and leaving aside post graduate degree in

law all other judges have an under graduate degree in the

vocation. As stated earlier with such a variation in the age,

experience, academic qualification of the judges we had a fine

slot of respondents.

To this judicial group we put relevant questions beginning

with the oft talked query that the judicial system in the present

is heavily under pressure. The impression of the judges is that

due to administrative dysfunctioinalism such heavy load is

being felt on local judicial system. Apart this false litigation,

pressure tactics used by advocates for extracting favourable

order etc., socio-economic change in environment etc. are other

factors which have been enlisted by the judges in the context.

Precisely it is the changing environment which has resulted in

overburdening of the system. It may be mentioned here that 10

to 20 cases per month can smoothly be disposed off by the

251

judges which varies from person to person and nature of the

cases but in no case it can exceed to 60 cases per month.

However, it has been admitted by the judges that many times a

judge is to dispose off 200 to 300 cases a month and normally

this strength is 150 cases per month. Obviously this variation of

the institution of cases and their disposal causes stress to the

magistrates which ultimately speak negatively on the quality of

justice by virtue of the delay in the process. The view point of

the judges may be seen in the table below.

Table 6.4.1

Year of appointment as Judge

S. No. Group of years No. of

respondents %

1. Before 1990 3 20

2. 1991 – 2000 5 33

3. 2001 – 2010 6 40

4. 2010 – till date 1 7

Total 15 100

252

Table 6.4.2

Reasons of heavy burden on local judiciary

S.

No. Types of causes

No. of

respondents %

1. False litigation 4 17

2.

Administrative dysfunctionalism

i.e. administrative functionaries of

government are not working

properly

6 25

3. Pressure tactics are used by

advocates for favourable order 3 13

4.

Advocates often are complaining

which results in harrerssment of

judicial officer

3 13

5. Family discrimination 1 4

6. Untrained advocates 1 4

7. Contracting of cases 2 8

8. Increasing faith of the people on

the judicial system 1 4

9. Socio-economic change 2 8

10. Increasing graph of crime and

social imbalances 1 4

Total 24 100

N.B.: Five gave two factors, two gave three factors.

253

Table 6.4.3

Disposal of cases by Judges

S.

No.

Easily disposal per month – compulsory disposal –

negative effect

No. of respondents

%

1. Depends upon the capacity and ability of particular person (judge)

• 10 to 20 per month

• affects quality

5 3.33

2. 10 cases per month

• for every category of cases different quota is fixed

• no negative effect

3 20

3. 25-30 cases can easily be decided per month

• has to disposal off 130-150 per month

• it causes stress

1 6.66

4. 40-60 can be decided per month

• 150-200 to dispose off every month

• justice is delayed

3 20

5. 40-50 per month

• 200-300 per month to decide

• no negative effect

3 20

Total 15 100

The tardy procedure also affects the judicial process

negatively. Judges have suggested amendment in Cr. P.c. and

254

C.P.C., amendment in the provisions of I.P.C. and law of

evidence by revising them. This to the remind may facilitate a

quick disposal of the cases. The judges admit that there is a

nexus between local politicians and criminals, however,

politicians’ interference failed to interfere in imparting justice to

the common man. Obviously this portrays rosy picture of the

local judicial system. Thus, it is wrong to say that judges are

not impartial in the view point of the respondents. If at all some

partialities recorded in the quality of judgment then it is solely

due to personal reasons than interference by any external force.

Table 6.4.4

Suggestions for removal of procedural delay

S. No. Suggestions No. of

respondents %

1. Amendment be made in Cr. P.C. and C.P.C.

4 27

2. Law of evidence be precise and easy (easily intelligible)

3 13

3. No 1 4

4.

Procedure be made easy and amendment in I.P.C. is needed by which impracticable sections be omitted

4

17

5.

Laws, made by Britishers, should be revised according to the modern needs of the Indian society

3

13

Total 15 100

255

Table 6.4.5

Nexus between local politicians and criminals

S.

No. Nature of answer

No. of

respondents %

1. Yes 8 53

2. No 7 47

Total 15 100

Table 6.4.6

Political Interference in the work of respondents

S. No. Nature of answer No. of

respondents %

1. Yes --- ---

2. No 15 100

Total 15 100

Table 6.4.7

Judges are not completely impartial in doing

justice

S. No. Suggestions No. of

respondents %

1. Yes 2 14

2. No 13 86

Total 15 100

256

Table 6.4.8

Level of job satisfaction

S.

No. Suggestions

No. of

respondents %

1. Admission facility (e.g. quota) for

children in educational

institutions is desired

2 13

2. Residential facilities (such as

computers, security, home

library) must be provided

8 53

3. Recommendations of judicial pay

commission be enforced

completely

5 33

Total 15 100

Though most of the members of the Bench are satisfied

with pay packets and perks but almost 50% of them are not

satisfied with the facilities they are being provided particularly

that of residences. It may be relevant to mention here that a

dissatisfied member of the judiciary may not have a proper

impact on the system.

257

Table 6.4.9

Suggestions for streamlining the police force

S.

No. Suggestions

No. of

respondents %

1.

Police remains inactive in most

cases, so one wing of the police

system be given under the control

of judicial administration

7 33

2.

Police should investigate truly

and impartially, control over

administration be strengthen,

investigating police must be

separated from other

responsibilities (such as

maintenance of law and order)

5 24

3.

Cr.P.C., C.P.C. and Police Act

must be amended to meet the

requirements of modern India

4 19

4.

Police’s inappropriate working

causes judicial delay, corruption

prevails in police system, so

police reforms are the need of the

time.

5 24

Total 21 100

N.B.: - Six respondents gave two factors.

258

Police is considered to be the most important and primary

ladder of the criminal justice system. The judges admit that due

to weak investigation carried out by the police, the offenders are

often let off by the court and otherwise the process is struck to

delay therefore to the mind of judges police need to be reformed

such as investigating police be repeated from law and order

police and the investigating wing may be put under the control

of judicial administration. It is a suggestion which need to be

studied by the men in power. While imparting suggestions to

minimize the expenditure of the litigants and save the time of

the judiciary, judges have some interesting suggestions such as

constitution of circuit courts, extension of Lok Adalats,

provision of summary trial at the level of executive and

institution of the cases of certain amount directly in the higher

courts for its final decision.

259

Table 6.4.10

Suggestions to make judicial system time bound

and inexpensive

S.No. Suggestions No. of respondents %

1. Property cases, up to a certain limit, be made free of court fee 2 11

2.

Disputes/cases up to a certain valuation of property be disposed off completely on the level off District Judge and High Court i.e. in such cases there should be no appeal to High Court and Supreme Court respectively.

2 11

3.

Petty cases of criminal nature (punishable by fine) be disposed off on governmental level after lapse of certain time period

3 16

4. Moving court should be established 3 16

5. There should be change in the judicial system according to the circumstances of today’s India

3 16

6. Administrative reforms are compulsory 1 5

7. The people should be educated in rules of laws 1 5

8. Extension of Lok Adalats 3 11

9. Parliament should discuss and make legislation in this regard 1 5

Total 19 100

N.B.: - Four respondents gave two factors.

260

Table 6.4.11

Problems before district judicial system

S.No. Problems No. of

respondents %

1. Tactics of local pressure group of advocates

6 26

2. Boycott and strikes for personal interests by advocates

4 17

3.

The tendency ‘Let the court decide’ to resolve the administrative, political or peoples’ related other problem

1

4

4. Burden of work 4 17

5. Inappropriate facilities in courts

2 9

6. Working conditions in court room are not good

1 4

7. Lack of pure and sanitated food and drinking

2 9

8. Distorted decisions given by Panchayats which causes increase in litigation

2 9

9.

Advocates use every meaningful or non-meaningful, moral-immoral methods for favourable order

1

4

Total 23 100

N.B.: Two respondents gave no factor and six gave more than

one factor.

Table 6.4.12

261

Usefulness of measures made to make justice

inexpensive and speedy.

S. No. Nature of answer No. of

respondents %

1. Yes 14 94

2. No 1 6

Total 15 100

Table 6.4.13

Working efficiency of local judiciary as compare to

earlier time

S. No. Nature of answer No. of

respondents %

1. Yes 10 66

2. No 5 34

Total 15 100

262

Table 6.4.14

Reasons of Efficient Working by Local Judiciary

S.

No. Reasons

No. of

respondents %

1. Lok Adalat 6 33

2.

Resources (like IT, use of

computer) have increased working

efficiency

3 17

3.

Present generation is adequately

literate and has some knowledge

of law

1 06

4. Law books are available in library 3 17

5.

With the intervention of Hon’ble

Supreme Court facilities has been

provided

4 22

6. Working style has been reformed 1 06

Total 18 100

N.B.: Four respondents gave two factors and two gave three

factors.

For the reason that resources are more efficiently available

libraries are at ready hand and for this Hon’ble Supreme Court

is working overtime. It is by the efforts of Supreme Court that IT

facilities have been made available in the lower court which has

raised the efficiency of local courts.

263

Table 6.4.15

Alertness of judiciary towards weaker section of

society

S.

No. Nature of answer

No. of

respondents %

1. Yes 8 54

2. No 7 46

Total 15 100

The majority of judges admitted that local judges are more

alert and susceptible to the weaker section of the society and

thus is a harbinger of social justice for making the judicial

system more efficacious and effective at local level. The judges

have suggested primarily that pressure tactics be minimized or

wither away, organizational and functional facilities be improved

and the judges be made aware of the new enactment of laws so

that they can equip themselves with the recent development in

the realm of judicial system.

Table 6.4.16

Suggestions to Improve Efficiency of Judiciary

S.No. Suggestions No. of

respondents %

1.

Local pressure should be

abolished, strike and boycott must

be stopped

5 19

2. Number of courts be increased 4 15

3. There should be control over false

litigation 2 8

264

4. More facilities be provided to

judicial officers 4 15

5. Advocate be trained and

disciplined 3 12

6.

Attempts should be made to tell

the actual position of the case of

litigants

2 8

7. Tenure of judges be fixed, work

load be reduced 1 4

8.

The judicial system should be

transparent, number of judges be

increased

1 4

9.

Workshop should be organized in

connection with new enactment of

laws.

2 8

10.

For the appointment of judge

practice experience of at least one

year as an advocate should be

compulsory and after appointment

some part of training must be

imparted on job with senior

judges.

2 8

Total 26 100

N.B.: - Eleven respondents gave two factors.

In nut shell, the judges seem to be hopeful about the legal

system and feel that with little efforts the functioning of the

local court can be improved a lot and the people may be

ensured a quick, judgment within lesser time and expenditure.

If this happens then perhaps the democracy will come to its age.

Chapter : Seven

Conclusion and Suggestions

265

Chapter Seven

Conclusion

The formation and functioning of the High Courts in India

need drastic changes so that the people of the country may have

fair and speedy justice and more faith in the system.

Selection and appointment of High Court Judges

1. The post of the Judge of a High Court has importance

under our Constitution and the incumbent is supposed

to be not only fair, impartial and independent, but also

intelligent and diligent. The general eligibility criterion is

that a person should have put in ten years of

practice/service in the legal/judicial field.

2. As a matter of practice, a person, who has worked as a

District Judge or has practised in the High Court in a

State, is appointed as a Judge of the High Court in the

same State. Often we hear complaints about ‘Uncle

Judges’. If a person has practised in a High Court, say,

for 20-25 years and is appointed a Judge in the same

High Court, overnight change is not possible. He has his

colleague advocates – both senior and junior -as well as

his kith and kin, who had been practising with him.

Even wards of some District Judges, elevated to a High

Court, are in practice in the same High Court. There are

occasions, when advocate judges either settle their

scores with the advocates, who have practised with

them, or have soft corner for them. In any case, this

affects their impartiality and justice is the loser. The

266

equity demands that the justice shall not only be done

but should also appear to have been done. In

government services, particularly, Class II and upward,

officers are not given posting in their home districts

except for very special reasons. In any case, the judges,

whose kith and kin are practising in a High Court,

should not be posted in the same High Court. This will

eliminate “Uncle Judges”.

3. Sometimes it appears that this high office is patronized.

A person, whose near relation or well-wisher is or had

been a judge in the higher courts or is a senior advocate

or is a political high-up, stands a better chance of

elevation. It is not necessary that such a person must be

competent because sometimes even less competent

persons are inducted. There is no dearth of such

examples. Such persons should not be appointed and at

least in the same High Court. If they are posted in other

High Courts, it will test their calibre and eminence in

the legal field.

4. The post of Chief Justice should not be transferable.

This practice was introduced in our country after the

‘Emergency’ had been imposed. If we look back, we find

that the High Courts earlier had better reputation than

what they have at present. The Chief Justice, who comes

on transfer for a short period of six months, one or two

years, is a new man, rather alien for the place and

passes his time anyhow. He has to depend on others for

policy decisions in administrative matters. If the Chief

Justice is from the same High Court, he will be in a

better position to not only control the lower judiciary but

267

also to assess the persons both from the bench and the

bar for elevation to the High Court. This will also curtail

the unnecessary delay in filling up the vacancies in the

High Courts. If the functioning of the High Courts is to

be improved, the policy of transferring the Chief Justices

should be given up forthwith.

5. When the policy of transfer of Chief Justices was finally

upheld by the Hon’ble Supreme Court, an eminent jurist

of the country commented that the judiciary had

committed suicide. Now the time has come when this

policy needs re-evaluation.

Age of retirement

6. When we adopted and gave to ourselves the Constitution

in 1949, the retirement age of Judges was fixed at 60

years for High Courts and 65 years for the Supreme

Court. For the High Court Judges, 60 years was

increased to 62 years in 1963. At that time the normal

life expectancy was about 60 years. With the changes in

social and financial set-up as well as medical facilities,

the present normal life expectancy is about 70 years.

Barring few exceptions, a person is fit and fine at the age

of 62 or even 65 years. In our country, except for the

judges, the retirement age in some quasi-judicial bodies

has been increased. The retirement age in different

tribunals has now been increased to 70 for chairmen

and 65 for members. In the circumstances, the

constitutional provisions need a change for enhancing

the age of retirement of High Court and Supreme Court

Judges at least by three years.

268

Increase in number of judges and creation of new Benches

7. In almost every High Court, there is huge pendency of

cases and the present strength of the judges can hardly

be said to be sufficient to cope with the alarming

situation. The institution of cases is much more than

the disposal and it adds to arrears of cases. The

litigating citizens have a fundamental right of life i.e. a

tension-free life through speedy justice-delivery system.

Now it has become essential that the present strength of

the judges should be increased manifold according to

the pendency, present and probable.

8. It is also necessary that the work of the High Courts is

decentralized, that is, more Benches are established in

all States. If there is manifold increase in the strength of

the judges and the staff, all cannot be housed in one

campus. Therefore, the establishment of new Benches is

necessary. It is also in the interest of the litigants. The

Benches should be so established that a litigant is not

required to travel long.

9. It is true that the new establishments will require

money, but it is necessary as a development measure,

particularly, when efforts are being made for all-round

development of the country. Therefore, the money

should not be a problem. We have to watch and protect

the interest of the litigants. We must always keep in

mind that the existence of judges and advocates is

because of the litigants and they are there to serve their

cause only.

269

10. Sometimes, some advocates object to creation of new

Benches and selection of new sites for construction of

new buildings. But they raise objections in their

personal, limited interest. Creation of new Benches is

certainly beneficial for the litigants and the lawyers and

a beginning has to be made somewhere.

11. There is huge pendency of cases in the apex court also.

Now the time has come when not only the strength of

the Hon’ble Judges in the Supreme Court should be

increased and recommendations are made to fill up the

vacancies soon but new Benches be also established in

southern and eastern regions.

Number of working days and vacations

12. Considering the huge pendency of cases at all levels of

judicial hierarchy, it has become necessary to increase

the number of working days.

13. It has to be introduced at all levels of judicial hierarchy

and must start from the apex court. With the increase in

the salaries and perks of the Judges, it is their moral

duty to respond commensurately. Opportunities to

attend conferences/legal seminars in foreign countries

should be given to all the Judges of the Supreme Court

and Chief Justices of the High Court in turn. Frequent

visits by the Judges to foreign countries at very high

cost should be avoided in view of the austerity measures

by the Government of India.

Work culture

270

14. Of late, there has been a general erosion of work culture

throughout the country. Government servants avoid

discharging their duties and responsibilities. The

Judiciary has also been affected by this evil.

15. It is high time when all the judges at different levels of

judicial hierarchy must devote full time to judicial work

and should not be under any misconception that they

are Lords or above the society. Though this feeling

should come from within, but some guidelines are

necessary.

Once judgments are reserved on constitutional matters

by larger bench or otherwise, the judgments should be

delivered within a reasonable time. There is long and

inordinate delay in delivering judgments which should

be avoided in public interest. If these suggestions are

implemented, the functioning of the courts shall

certainly improve.

Speedy justice

16. Speedy justice is the right of every litigating person.

There is no denying the fact that delay frustrates justice.

In the present set-up it often takes 10 – 20 – 30 or even

more years before a matter is finally decided. In the

recent past, litigation has increased immensely. The

population growth, improved financial conditions, lack

of tolerance and materialistic way of life may be some of

the causes. But the delay in dispensation of justice has

to be eliminated by taking effective steps otherwise the

day is not far when the whole system will collapse.

Recently, one Hon’ble Judge of Delhi High Court

271

calculated that 464 years will be required to clear the

arrears with the present strength of the judges in that

High Court. The position may not be that gloomy but is

still alarming.

17. In Allahabad High Court, more than eight and a half

lacs of cases are pending. Criminal appeals of the year

1980-82, criminal revisions of the year 1990-95 are still

pending. In second civil appeals and writ matters the

position is almost same. The position is the same in all

other High Courts. Institution of cases is much more

than disposal and it adds to the arrears almost at all

levels of judicial hierarchy. Even in subordinate courts,

there is huge pendency of cases.

18. As stated above, in order to meet this contingency

substantial increase in the number of judges and

corresponding infrastructure is required at the earliest.

Even if the judges and class III and IV employees are

appointed, say, within three to six months basic

infrastructure will need time. However, the money

should be not a problem. It should be treated as a

developmental work, a work to provide justice to all, a

principle enshrined in the Preamble of our Constitution.

19. An effort has been made in Gujarat State and Delhi to

have some evening courts. The same system can be

introduced in other States as well.

20. The constitutional promise of securing to all its citizens

justice, social, economic and political, as promised in

the Preamble of the Constitution cannot be realized

unless the three organs of the State i.e. legislature,

272

executive and judiciary join together to find ways and

means for providing to the Indian poor equal access to

its justice system.

21. Speedy trial is guaranteed under article 21 of the

Constitution of India. Any delay in expeditious disposal

of criminal trial infringes the right to life and personal

liberty guaranteed under article 21 of the Constitution.

The debate on judicial arrears has thrown up number of

ideas on how the judiciary can set its own house in

order. Alarmed by the backlog of inordinate delay in

disposal of cases, Fast Track Courts or Special Courts

have to be constituted. Thus, Fast Track Courts are to

tackle the section 138 Negotiable Instruments Act cases

as the graph of such pendency is very high and

alarming. It is high time to restore the confidence of

people in the judiciary by providing speedy justice.

22. It is not uncommon for any criminal case to drag on for

years. During this time, the accused travels from the

zone of "anguish" to the zone of "sympathy". The

witnesses are either won over by muscle or money power

or they become sympathetic to the accused. As a result,

they turn hostile and prosecution fails. In some cases,

the recollection becomes fade or the witnesses die. Thus,

long delay in courts causes great hardship not only to

the accused but even to the victim and the State. The

accused, who is not let out on bail, may sit in jail for

number of months or even years awaiting conclusion of

the trial. Thus, effort is required to be made to improve

the management of prosecution in order to increase

certainty of conviction and punishment for most serious

273

offenders. It is experienced that there is increasing laxity

in the court work by the police personnel, empowered to

investigate the case.

23. Judiciary today is more deserving of public confidence

than ever before. The judiciary has a special role to play

in the task of achieving socio-economic goals enshrined

in the Constitution while maintaining their aloofness

and independence. Judges have to be aware of the social

changes in the task of achieving socio-economic justice

for the people.

Justice at easy reach

24. The Indian judicial system is constantly exposed to new

challenges, new dimensions and new signals and has to

survive in a world in which perhaps the only real

certainty is that the circumstances of tomorrow will not

be the same as those of today. The need of the hour is to

erase misconception about the Judiciary by making it

more accessible by utilizing the resources available to

improve the service to the public, by reducing delays

and making courts more efficient and less daunting.

25. Regarding decongestion, greater responsibility lies on

the shoulders of the Governments of States or the

Central Government. They are biggest litigants in the

courts. They should approach the courts or contest

cases only if necessary and not just to pass on the buck

or contest for the sake of contesting. The time consumed

in most of the cases by Courts of Sessions is somewhat

under control and most of the cases are decided in a

reasonable time-schedule. Main problem is about huge

274

pendency in Magisterial Courts and the High Courts. It

is absolutely essential to have additional courts for

specifically trying the complaint cases filed under

section 138 of the Negotiable Instruments Act. The

present state of affairs defeats the very object with which

the provision was inserted in the Negotiable Instruments

Act. Further, large numbers of petty offence cases

should be taken out of the normal court channel to be

decided by the Special Magistrates by appointing retired

officers as Special Magistrates.

26. A speedy trial is not only required to give quick justice

but it is also an integral part of the fundamental right of

life, personal liberty, as envisaged in article 21 of the

Constitution. The Law Commission is putting forth few

suggestions to identify and remedy the causes of such

delays in this Report, of course, after identifying major

hurdles and impediments which cause delay in the

disposal of criminal cases.

27. The Law Commission of India is of the firm opinion that

considering the alarming situation and the pendency of

cases and the constitutional rights of a litigant for a

speedy and fair trial, the Government of India should

direct the State authorities to set up Fast Track Courts

in the country, which alone, in the opinion of the Law

Commission, will solve the perennial problem of

pendency of cases.

Integrity, virtue and ethics

28. The term integrity when applied to human attributes

refers to honesty, reliability, purity, trustworthiness,

275

incorruptibility, sincerity, honour, decency, etc.

Mahatma Gandhi at one time said that “purity of life is

the highest and truest art”.

29. And in the words of Marcus Aurelius, “a man should be

upright, not be kept upright”. A person of integrity will

do the right thing even when nobody is watching.

Mahatma Gandhi said that “the truest test of

civilization, culture and dignity is character and not

clothing”.

Governance

30. The term ‘governance’ is derived from a Latin term that

literally means steering. It refers to the processes and

systems by which an organization or society operates;

the processes by which decisions are made that define

expectations, grant power, or verify performance.

31. The ideal concept of public officer, expressed by the

words ‘a public office is a public trust’, signifies that the

officer has been entrusted with public power by the

people; that the officer holds this power in trust to be

used only for their benefit and never for the benefit of

himself or of a few; and that the officer must never

conduct his own affairs so as to infringe the public trust.

32. Citizens have a legitimate expectation that the public

servants will serve the public interest with fairness and

manage public resources properly on a daily basis. The

increased democratization and globalization has resulted

in increased visibility of the public officials. Critical

questions are nowadays asked about the way in which

276

cases have been dealt with, the justice of the decisions,

the exercise of discretions, and the morals of public

servants. Leaders are increasingly being called upon to

account for their actions by the communities affected by

those actions.

Anti-corruption

33. Corruption in reference to public office has been defined

as the abuse of power for purposes of private gain.

34. In public affairs, there often arises a conflict between

private wealth and public power. This is often the result

of selfishness and greed. Mahatma Gandhi said that the

earth provides enough to satisfy every man’s needs, but

not enough to satisfy every man’s greed. The conflict

needs to be mediated upon. Institutions that fail to

mediate between private wealth and public power run

the risk of becoming dysfunctional and trapped by

wealthy interests. Corruption is one symptom of such

failure whereby personal interests overcome public

goals.

35. Fighting corruption is one of the facets of promoting

good governance. But governance issues are far much

broader than anticorruption alone. For example, a

public officer may be honest and yet inefficient or

incompetent. Efforts to promote good governance must

therefore be broader than anti-corruption campaigns.

Article 14 of the ‘Basic Principles on the Role of Lawyers’

adopted by the Eighth United Nations Congress on the

277

Prevention of Crime and the Treatment of Offenders,

Havana, Cuba, in 1990 states:

36. “Lawyers, in protecting the rights of their clients and in

promoting the cause of justice, shall seek to uphold

human rights and fundamental freedoms recognized by

national and international law and shall at all time act

freely and diligently in accordance with the law and

recognized standards and ethics of the legal profession.”

37. Continuing professional development is necessary for all

legal practitioners, State law officers and judicial officers

to improve and sustain their proficiency. There should

be put in place mechanism for refresher courses and

attendance at them as a pre-condition for renewal of

practising certificates for advocates.

38. The Indian Constitution is the source of every law that

was and is prevalent in our society. The Constitution

guarantees to all Indian citizens equal protection of

public as well as personal rights. But these rights are of

no avail if an individual has no means to get them

enforced.

The enforcement of the rights has to be through the

courts, but judicial procedure is very complex, costly

and dilatory putting the poor at a distance from justice.

39. The Britishers established the current pattern of legal

system present in India today, after the establishment of

the English rule in the country. In the year 1857, the

first step was taken in the direction of imparting formal

legal education in the country. The Britishers began

278

enacting statutes, after the revolt of 1857, which

resulted in the introduction of a legal system that was

moulded along the lines of the legal system then

prevailing in the United Kingdom with an exception to

laws pertaining to religious denominations in India.

Access to justice

40. Traditional concept of "access to justice" as understood

by common man is access to courts of law. For a

common man, a court is the place where justice is

meted out to him/her. But since the laws enacted were

in English and the proceedings of all the courts were

highly complicated, confusing and expensive for the

Indian public, the ‘English’ illiterate Indian public found

it difficult to get access to the justice-delivery system. As

a solution, the need to have lawyers was felt as an

effective mediator between the legal world and the

common man. Therefore, we can see that a lawyer in

addition to being champion at the various laws also has

a social responsibility of helping the ignorant and the

underprivileged to attain justice.

41. The State in contemporary scenario is welfare-oriented.

It is one of the most important duties of a welfare state

to provide judicial and nonjudicial dispute resolution

mechanisms to which all citizens have equal access, for

the resolution of their legal disputes and enforcement of

their constitutionally guaranteed fundamental rights.

Poverty, ignorance or social inequalities should not

become barriers to it.

279

42. Article 39A of the Constitution provides for equal justice

and free legal aid. The said article obligates the State to

promote justice on a basis of equal opportunity and, in

particular, provide free legal aid by suitable legislation or

schemes or in any other way, to ensure that

opportunities for securing justices are not denied to any

citizen by reason of economic or other disabilities.

43. Lok Adalats, Nyaya Panchayats, Legal Services

Authorities are also part of the campaign to take justice

to the people and ensure that all people have equal

access to justice in spite of various barriers like social

and economic backwardness.

44. Large population, more litigation and lack of adequate

infrastructure are the major factors that hamper our

justice system. Regular adjudication procedures through

the constant efforts of Legal Services Authorities will act

as catalysts in curing these maladies of our system.

45. Disposal of legal disputes at pre-litigative stage by

permanent and continuous Lok Adalats would provide

expense-free justice to the citizens of this country. It

also saves the courts from additional and avoidable

burden of petty cases enabling them to divert their

court-time to more contentious and old matters. Legal

literacy and legal awareness are the principal means to

achieve the objective for ensuring equality before law for

the citizens of our country.

46. Legal profession of the country, as we know it today, is

more than two centuries old. We can legitimately expect

that the future of this profession ought to be very bright,

280

particularly in the context of the enormous strides our

country is making in various fields and human rights

awareness. Public interest has to be its motto and

service in the cause of justice its creed. Mahatma

Gandhi was a barrister who practised law without

compromising truth. Abraham Lincoln said: "Discourage

litigation, persuade your neighbours to compromise

whenever you can. Point out to them how the nominal

winner is often a real loser in fees, expenses and time".

47. A stark reality that stares at our face is the fact that

more than 70% of the people of this country are

illiterate. The noble objective flowing from the Preamble

of the Constitution and the earnest wish and hopes

expressed in the Directive Principles shall remain on

paper unless the people in this country are educated.

Alternate Dispute Resolution

48. With the march of time, new demands emerge, which

sometimes make the existing system outdated or non-

functional, requiring it to be replaced by a new one. Law

should also respond to the demands of the society. The

alternate dispute resolution methods have evolved as a

result of this vision.

49. The first avenue where the conciliation has been

effectively introduced and recognized by law is labour

law, namely, the Industrial Disputes Act, 1947.

Conciliation has been statutorily recognized as an

effective method of dispute resolution in relation to

disputes between workers and management. The only

field where the courts in India have recognized Alternate

281

Dispute Resolution (ADR) is in the field of arbitration.

Another area where ADR is recognized in India is family

law. The legislation which emphasizes ADR is the Legal

Services Authorities Act 1987.

50. Provisions have been made in the Legal Services

Authorities Act for settling cases through Lok Adalats; a

Lok Adalat generally comprises a judicial officer, serving

or retired, a lawyer, and a person of a social welfare

association, preferably, a woman. Power has been given

to Lok Adalats to dispose of disputes referred to them by

arriving at a compromise or settlement between the

parties; awards of Lok Adalats are deemed to be decrees

of civil courts or orders of other courts or tribunals;

every award made by a Lok Adalat is treated as final and

binding on all the parties to the dispute, and no appeal

lies to any court against the award.

Advantages of ADR

51. Advantages of ADR are many -it is less expensive, less

time-consuming, free from technicalities vis-à-vis

conducting of cases in law courts, parties involved are

free to discuss their differences of opinion without any

fear of disclosure before any law courts, and the last,

but not the least, there is no winning or losing for any of

the parties involved; so, their grievances are redressed

without causing any damage to the relationship between

them.

52. Another right and welcome step taken was the

enactment of the Consumer Protection Act 1986 (CP Act)

for settlement of consumer disputes and for matters

282

connected therewith. The aim of the CP Act is to provide

for an effective, inexpensive, simple and speedy

redressal of consumer grievances, which civil courts are

not able to provide.

53. The Family Courts Act 1984 (FC Act) was enacted to

provide for the establishment of Family Courts with a

view to promote conciliation in, and secure speedy

settlement of, disputes relating to marriage and family

affairs and for matters connected therewith.

54. The Law Commission of India in its 59th Report (1974)

had also stressed that in dealing with disputes

concerning the family, the court ought to adopt a

humane approach different from that adopted in

ordinary civil proceedings, and that it should make

reasonable efforts at settlement before commencement

of the trial.

Appointment of judges

55. In selecting persons for appointment as judges, every

endeavour should be made to ensure that persons

committed to the need to protect and preserve the

institution of marriage and to promote the welfare of

children and qualified by reason of their experience and

expertise to promote settlement of disputes by

conciliation and counselling are selected. Justice in all

its facets – social, economic and political – is to be

rendered to the masses of this country without any

further loss of time – the need of the hour.

Three players in Judiciary

283

56. The first player is the Government. The Government is

mostly at fault by not filling up vacancies which they

know well in advance. The Government fails in

appointing quality judges and providing proper

infrastructure, including the basic things like a good

library, typists, etc.

57. The second player is the lawyers. We should realize that

adjournments, even if they are in favour of clients, are

not in favour of the system. In a number of regulatory

cases, there is no real need for appeals or adjournments.

Given the huge backlog of cases, practical ways and

means need to be thought of, to solve such problems.

Ethics of lawyers has also become questionable. There is

a Bar Council that has to look after ethics of lawyers,

but it has rarely taken action against tainted lawyers.

Everything becomes customary and loses meaning.

58. The third player, of course, is the judges. Unless they

display work-ethics, no recommendations can be of use

to them. Fairness, speed and quality should be key

values for the judiciary, as for all other sectors.

59. The Judiciary is under great pressure. We have about

10-11 judges per million population right now. The

Supreme Court has recently directed that we should

have 5 times the number of judges we currently have.1

Reforms

60. All reforms need to take place in an integrated manner.

The police, prosecution, lawyers and courts, must be

1 All India Judges’ Association v. Union of India, (2002) 4 SCC 247

284

thought of as being cohesive. The topic of judicial

reforms has of late become very important because the

public has lost faith in the system. Judicial

accountability is connected with the larger area of

judicial reforms. Everyone is concerned about the large

delays in disposal of cases, and the agenda for judicial

reforms must first tackle the problem of this backlog. We

have seen a lot of Law Commission Reports and various

suggestions -one of which is the formation of tribunals

to take away some of the workload of High Courts, but

still, High Courts are burdened with a large number of

cases. Increasing the manpower in judiciary is the need

of the hour. Also, the problem faced by the judiciary can

be solved, if we have scientific data about the cases that

clog the dockets.

Pendency

61. Pendency is a normal feature of any system but is

assuming great proportions in courts. This will

necessitate courts to prescribe time-limits for all cases.

To deal with this, there can’t be one prescribed limit, but

the kinds of cases need to be identified and prioritized.

So setting time-standards is essential and it will vary for

different cases, and also for different courts depending

on their disposal-capacity. This will be necessary to

assess the performance of the courts and judicial

accountability.

Technology

62. We have modern technology, which facilitates us to

collect a lot of information and making it available to

285

Chief Justices, so that they are able to allocate their

manpower efficiently. Digital techniques and tools are at

our disposal, to collect information from an entire

database from the time a case is instituted in a court of

law to the final stages of appeal. Building up a judicial

database will enable us to assess the performance of the

courts as an institution, and the Chief Justices will be

able to use it to assess the individual performance of

judges. This will go a long way in identifying what the

backlog is, what types of cases are clogging the dockets,

etc.

63. As a part of digital resource management, we have home

pages and websites, where judgments of courts can be

instantly posted. At the moment, it takes a long time for

courts to give copies of judgments; with being instantly

posted on the home page, they will be easily and readily

available to everyone. This is an important step for using

the technology effectively, to expedite the process of

judgments being accessible.

64. Now, digital technology offers us new packages like

database, ERP tools, court management practices –

these will help in increasing the productivity of courts;

video-conferencing – through which we can record

evidence. There is, therefore, vast technology available

for the courtroom, for enhancing the quality of justice,

and finding the truth after all, justice is the finding of

truth. Coming back to accountability, like any

institution, judiciary is not devoid of vices, but still they

are akin to temples of justice. But still, corruption

cannot be acceptable. How does one deal with

286

corruption? Impeachment was thought to be the remedy

to deal with errant judges, but we found that it is not

working well; we have to find some internal institutional

mechanism, a sort of peer committee, enabling judges to

deal with such issues. We are not very sure that

increasing number of courts and judges will ameliorate

the situation, unless there is a simultaneous

productivity increase in courts! We feel strongly about

the issue!

65. Judicial reform, as is being looked at, is essential for the

country’s overall development, not just economic; in

India, the problem is more human than economic.

Ninety per cent of the litigation is by rural people;

parties are fighting for even half an acre of land; families

are being ruined. Therefore, there has to be an overall

solution.

Computerization of lower courts

66. The government has proposed to computerize the lower

courts in future. A scheme for computerization of all the

13,000 district and subordinate courts, prepared in

accordance with the National Policy and Action Plan,

has been approved by the government on 8th February,

2007 with National Informatics Centre (NIC) as the

implementing agency. The coverage of the project

includes Information and Communication Technology

(ICT) enablement of all the district and subordinate

courts and upgrading of the ICT infrastructure of the

Supreme Court and all the High Courts.

287

67. The first phase of the project is being implemented in all

the States and Union territories at an estimated cost of

Rs.442 crores. All the lower courts in the country

including the courts in the States of Chhattisgarh,

Madhya Pradesh, Orissa and Uttar Pradesh have been

taken up for computerization in the first phase.

68. Court records can be digitized to improve the

productivity and efficiency of the courts.

Computerization of the Registry of the Supreme Court

has had its beneficial effects in slashing down arrears

and facilitated scientific docket management.

69. E-filing and video-conferencing by dispensing with

physical appearance saves precious time and resources

and makes justice more easily accessible and a less

expensive option.

Fast Track Courts

70. The government has already taken several initiatives on

the path of judicial reforms. 1562 Fast Track Courts

have been set up which have disposed of more than 18

lakh cases transferred to them. 190 Family Courts,

established in various parts of the country, have

speedily settled matrimonial disputes through

reconciliation.

Reforms at the village level

71. The Gram Nyayalayas Bill has been enacted to set up

more trial courts at the intermediate Panchayat level.

The welcome feature is that the procedures have been

kept simple and flexible so that cases can be heard and

288

disposed of within six months. It is also envisaged that

these courts will be mobile, to achieve the goal of

bringing justice to people’s doorsteps. Training and

orientation of the judiciary, especially in frontier areas of

knowledge, like bio-genetics, IPR and cyber laws, need

attention.

72. The Constitutional promise of securing to all its citizens,

justice, social, economic and political, as promised in

the Preamble of the Constitution, cannot be realized,

unless the three organs of the State i.e. legislature,

executive and judiciary, join together to find ways and

means for providing the Indian poor, equal access to its

justice system.

73. However, we are of the view that not an inch of change

can be brought about if the advocates do not work in

accordance with the responsibility that is cast upon

them by the Constitution. Every lawyer is vested with

the responsibility to foster the rule of law and

dominance of the Constitution.

74. Thus, it cannot be gainsaid that economic development

and law go hand in hand. We can’t think of economic

progress, unless changing needs of the society are

supported by appropriate law.

75. We need:

• Speedy justice

• Reduction in costs of litigation

• Systematic running of the courts

289

• Faith in the judicial system

76. The Indian Constitution provides a beautiful system of

checks and balances under articles 124(2) and 217(1)

for appointment of Judges of the Supreme Court and

High Courts where both the executive and the judiciary

have been given a balanced role. This delicate balance

has been upset by the 2nd Judges’ case (Supreme Court

Advocates-on-Record Association v. Union of India)2 and

the Opinion of the Supreme Court in the Presidential

Reference (Special Reference No.1 of 1998)3. It is time

the original balance of power is restored. The Law

Commission has in its 214th Report (2008)

recommended accordingly.

77. The above recommendation for the need for an urgent

and immediate review of the present procedure for

appointment of judges is further fortified by his

forthright views expressed by Shri Justice J. S. Verma, a

former Chief Justice of India, who had written the lead

judgment in the 2nd Judges’ case, expressed in an

interview to the Frontline Magazine published in its

issue of October 10, 2008. When asked: “You said in one

of your speeches that judicial appointments have

become judicial disappointments. Do you now regret

your 1993 judgment?” Justice Verma responded: “My

1993 judgment, which holds the field, was very much

misunderstood and misused. It was in that context I

said the working of the judgment now for some time is

raising serious questions, which cannot be called

unreasonable. Therefore, some kind of rethink is

required. My judgment says the appointment process of

290

High Court and Supreme Court Judges is basically a

joint or participatory exercise between the executive and

the judiciary, both taking part in it.

78. Broadly, there are two distinct areas. One is the area of

legal acumen of the candidates to adjudge their

suitability and the other is their antecedents. It is the

judiciary, that is, the Chief Justice of India and his

colleagues or, in the case of the High Courts, the Chief

Justice of the High Court and his colleagues (who) are

the best persons to adjudge the legal acumen. Their

voice should be predominant. So far as the antecedents

are concerned, the executive is better placed than the

judiciary to know the antecedents of candidates.

Therefore, my judgment said that in the area of legal

acumen the judiciary’s opinion should be dominant and

in the area of antecedents the executive’s opinion should

be dominant. Together, the two should function to find

out the most suitable (candidates) available for

appointment.”

79. The views of the Parliamentary Standing Committee on

Law and Justice which has recommended scrapping of

the present procedure for appointments and transfers of

Supreme Court and High Court Judges are of great

relevance in this context. The Hindustan Times of

October 20, 2008 reported: ‘The Law Ministry has

agreed to review the 15-year-old system after the

Parliamentary Standing Committee on Law and Justice

recommended doing away with the committee of judges

(collegium). Presently, the collegium decides the

appointments and transfer of judges. Interestingly, the

291

recommendations come close on the heels of recent

cases of corruption against judges of the top courts in

the country. Law Minister H. R. Bhardwaj told

Hindustan Times that the House Committee’s

recommendation had been accepted, and an action-

taken report prepared by the Ministry would now be

placed before Parliament. “Collegium system has failed.

Its decisions on appointments and transfers lack

transparency and we feel courts are not getting judges

on merit. (……) The government cannot be a silent

spectator on such a serious issue”, Bhardwaj said. The

House Committee had said: “Through a Supreme Court

judgment in 1993, the judiciary wrested the control of

judges’ appointments and transfers. The collegium

system has been a disaster and needs to be done away

with”. H. R. Bhardwaj, Minister for Law and Justice,

said “It is the right time to review this important

matter”. “There was no problem till 1993 when the

judiciary tried to rewrite the Article of the Constitution

dealing with appointments. They created a new law of

collegium which was wrong. In a democracy, the

primacy of Parliament cannot be challenged”, he said.’

80. It may be noted in this context that in every High Court

the Chief Justice is from outside the State as per the

policy of the Government. The senior-most Judges who

form the collegium are also from outside the State. The

resultant position is that the judges constituting the

collegium are not conversant with the names and

antecedents of the candidates and more often than not,

appointments suffer from lack of adequate information.

292

81. As recommended in the Law Commission’s 214th

Report, two alternatives are available to the Government

of the day. One is to seek a reconsideration of the three

Judges’ cases by the Hon’ble Supreme Court. The other

alternative is to enact a law restoring the primacy of the

Chief Justice of India and the power of the Executive in

making the appointments.

II. RECOMMENDATIONS

A. Hon’ble Shri Justice Asok Kumar Ganguly, a Supreme

Court Judge, in his article titled “Judicial Reforms”

published in Halsbury’s Law Monthly of November 2008

has suggested a few norms, which the judges and lawyers

must agree to follow very rigorously, in order to liquidate

the huge backlog. The suggestions are quoted below:

B. There must be full utilization of the court working hours.

The judges must be punctual and lawyers must not be

asking for adjournments, unless it is absolutely

necessary. Grant of adjournment must be guided strictly

by the provisions of Order 17 of the Civil Procedure Code.

C. Many cases are filed on similar points and one judgment

can decide a large number of cases. Such cases should be

clubbed with the help of technology and used to dispose

other such cases on a priority basis; this will

substantially reduce the arrears. Similarly, old cases,

many of which have become infructuous, can be

separated and listed for hearing and their disposal

normally will not take much time. Same is true for many

interlocutory applications filed even after the main cases

293

are disposed of. Such cases can be traced with the help of

technology and disposed of very quickly.

D. Judges must deliver judgments within a reasonable time

and in that matter, the guidelines given by the apex court

in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318

must be scrupulously observed, both in civil and criminal

cases.

E. Considering the staggering arrears, vacations in the

higher judiciary must be curtailed by at least 10 to 15

days and the court working hours should be extended by

at least half-an hour.

F. Lawyers must curtail prolix and repetitive arguments and

should supplement it by written notes. The length of the

oral argument in any case should not exceed one hour

and thirty minutes, unless the case involves complicated

questions of law or interpretation of Constitution.

Bibliography

i

Bibliography

1. Adams, Thomas F., Law Enforcement: An Introduction to the Police Role in the Community, Englewood Cliffs, New Jersey, 1968.

2. Agarwal, B.D., ―Criminal Justice System: Is Lie Oriented‖, Criminal Law Journal, Vol. 99, December 1999.

3. Agarwal, Rajender Saran, Crime and Punishment in New Perspective, Mittal publication, Delhi 1986.

4. Agarwal, Vineet, ―Recasting Criminal Justice System Using Electric Current Model‖, CBI Bulletin, Vol. 8, September 2000.

5. Agrawal, Krishan Mohan, Kautilya on Crime and Punishment, D Shree Book Depot, New Delhi 1990.

6. Agrawala, S.K. “Protective Discrimination and Backward Classes in India” in Mohammed Imam (Ed.), Minorities and the Law (1972).

7. Ahmad, Zubair, ―History of Criminal Justice System in India: A View of Mughal and British Period‖, Aligarh Law Journal, 1999-2000.

8. Ahmadi, A.M., ―Reform of the Criminal Justice System of India‖, Religion and Law Review, Vols. 10-11, 2000-01.

9. Alaxander, P.J. (ed.), Policing India in the New Millennium, Allied Publishers , New Delhi, 2002.

10. Alexandroweicz, C.H., Constitutional Development in India (1957).

11. Allen, C.K., Aspects of Justice (1955).

12. Altekar, A.S., State of Government in Ancient India, Third Edition, Motilal Banarsidas Publisher, New Delhi, 1958.

13. Anand, C.L., ―Oversolicitous Homage to the Criminal Defendant‘s Liberty and Cause of Public

ii

Justice‖, Civil and Military Law Journal, Vol. 26, April-June, 1990.

14. Anderson, P.R. and Newman, D.J., Introduction to Criminal Justice, McGraw Hill, New Delhi,1993.

15. Aristotle, The Politics, trans. E. Barker (1946).

16. Arotra, Nirman, ―Custodial Torture in Police Stations in India‖, Journal of Indian Law Institute, 1999.

17. Arun, F.V., ―International Criminal Police Organizations‖, CBI Bulletin, Vol. 10, January 2002.

18. Ashraf, Mohd., ―Need to Reform Indian Judicial System‖, Civil and Military Law Journal, Vol. 39, No. 4, October-December 2003.

19. Ashraf, Mohd., ―Police and Administration of Criminal Justice in India: An Appraisal‖, Civil and Military Law Journal, Vol. 36, April-June 2000. Bag, R.K., ―Perspective in Victimology in Context of Criminal Justice System‖, Criminal Law Journal, Vol. 105, October 1999.

20. Ashworth, Andrew, Principles of Criminal Law, Oxford University Press, Oxford, 1999.

21. Aujla, G.S., Police Training – A Profile, Mohindra Bros Printer, Ludhiana, 1998.

22. Aujla, G.S., Second to None: A History of Punjab Police, Mohindra Bros Printers, Ludhiana, 1995.

23. Austin, Granville, The Indian Constitution – Cornerstone of a Nation (1972).

24. Austin, The Province of Jurisprudence Determined (1832).

25. Bag, R.K., Supreme Court on Criminal Justice, Asia Law House, Allahabad, 2003.

26. Bakshi, P.M., ―Continental System of Criminal Justice‖, Journal of Indian Law Institute, Vol. 36, October-December 1994.

iii

27. Banerjee, A.C. II Indian Constitutional Documents (1948).

28. Banerjee, D., ―Criminal Justice System and Police: The Whole and a Part‖, CBI Bulletin, Vol. 6, November 1998.

29. Banerjee, P.C., Criminal Trial and Investigation, Vols. I & II, Fourth Edition, Orient Publishing Co, New Delhi, 2005.

30. Barker, Political Thoughts of Plato and Aristotle.

31. Basu, D.D. 1 Commentary on the Constitution of India (1978).

32. Basu, D.D., Introduction to the Constitution of India, Prentice Hall of India Private Limited, New Delhi, 1995.

33. Basu, Durga Das, Criminal Procedure Code, 1973, Prentice Hall of India, Pvt. Ltd, New Jersey.1997.

34. Basu, N.D., Code of Criminal Procedure, Ashoka Law House, New Delhi. 2002. Basu, N.D., Code of Criminal Procedure, Vols. I & II, Ninth Edition, Ashoka Law House, New Delhi, 2004.

35. Baxi, Upendra (ed.) K.K. Mathew on Democracy, Equality and Freedom (1978).

36. Bayley, David H., Police and Political Development in India, New Jersey: Princeton University Press, 1998.

37. Begarn, S. Meharaj, District Police Administration, Anmol Publication Pvt. Ltd, New Delhi, 1996.

38. Bent, Alan C., Police, Criminal Justice and the Community, Harper and Row, London 1976.

39. Bhagat, Arun, ―Policing Versus Politicking‖, Civil and Military Law Journal, Vol. 37, Nos. 2 and 3, April-September 2001.

40. Bhargawa, G.S., ―Flashback on 1975 and Jayalalitha‘s Administration of Criminal Justice‖, Mainstream, 2001.

iv

41. Bharti, Dalbir, The Constitution and Criminal Justice Administration, APH Publishing Corporation, New Delhi, 2002.

42. Bird, A. Otto, The Idea of Justice (1967).

43. Bodenhimer, Edger, Jurisprudence – The Philosophy and Method of Law (1970).

44. Brahm, Randolph B. (Ed.), Social Justice (1962).

45. Brahm, Randolph L. (Ed.), Social Justice (1981).

46. Brinton, Crane, “Equality” in 5 Encyclopedia of Social Sciences.

47. Buckland, John A., Combating Computer Crime – Prevention, Detection and Investigation, McGraw Hill, New york,1992.

48. Cape, Ed. and Bridges, Lee, ―Criminal Justice or Social Exclusion‖, Lawyers’ Collective, Vol. 15, November 2001.

49. Cemellin, Neil C. and Kenneth R. Evans, Criminal Law and Policemen, Prentice Hall, New Jersey,1976.

50. Chakraborty, N.K. (ed.), Administration of Criminal Justice: The Correctional Service and Social Defence, Vol. 5, Deep and Deep Publications, New Delhi, 1997.

51. Chakraborty, N.K., Probation System in the Administration of Criminal Justice, Deep and Deep Publications, New Delhi, 1995.

52. Chakravartty, N.K., ―Criminal Justice Policy of Humanitarian Law: Theories‖, Aligarh Law Journal, Vol. 11, 1996.

53. Chakravartty, N.K., ―Decision Making Process in the Criminal Justice System and the Law of Probation‖, Criminal Law Journal, Vol. 97, November 1991.

v

54. Chakravartty, N.K., ―Victim Assistance and Compensations to Crime Victims under Indian Criminal Justice System‖, Criminal Law Journal, Vol. 105, 1999.

55. Chambliss, William J. and Courtless, Thomas F., Criminal Law, Criminology and Criminal Justice, Books Code Publishing Co, California,1992.

56. Chattoraj, B.N., ―Citizen Voice in Criminal Justice Administration‖, Indian Journal of Criminology and Criminalistics, Vol. 14, January 1993.

57. Chattoraj, B.N., ―Training Needs of Criminal Justice Functionaries with Special Emphasis of Police Training‖, Indian Journal of Criminology and Criminalistics, Vol. 15, January-December 1994.

58. Chaturvedi, S.K., Police and Emerging Challenges, B.R. Publishers, New Delhi,1988. Chaudhary, Mrinmaya, Languishing for Justice, Dattsons, Nagpur, 1995.

59. Chaudhary, Baidyanath, ―Right to Fairness: An Humanising Element for Pre-trial Process in the Administration of Criminal Justice‖, Criminal Law Journal, Vol. 106, October 2000.

60. Choudhary, Baidyanath, ―Victims‘ Rights against Terrorism and the Administration of Criminal Justice‖, Criminal Law Journal, Vol. 108, March 2002.

61. Cohn, Alvin W., Criminal Justice Planning and Development, Sage Publication, London, 1977.

62. Damodar, R., ―Participation of Accused in Criminal Justice‖, Criminal Law Journal, Vol. 99, December 1993.

63. Das, Bharat B. and Patnaik, Swagata, ―Victims Perception of Criminal Justice System‖, Central India Law Quarterly, Vol. 6, April-June 1993.

64. Das, Hruda Ballav, ―Study on the Prospect of Reformative Criminal Justice with Special Reference

vi

to Probation of Offenders‘ Act: Law Relating to Victimology‖, Criminal Law Journal, Vol. 97, June 1991.

65. Das, Hrudaya Ballav, ―Introduction of the Concept of Plea Bargaining in Criminal Administration of Justice‖, Cuttack Law Times, Vol. 70, 1990.

66. Das, Hrudaya Ballav, ―Introduction of the Concept of Plea-bargaining in Criminal Administration of Justice‖, Criminal Law Journal, Vol. 96, September 1990.

67. Dayal, S., The Constitutional Law of India (1976).

68. Deb, R., ―Need for Judicial Activism in Administration of Criminal Justice‖, Criminal Law Journal, Vol. 99, February 1999.

69. Deb, R., ―Police and Administration of Criminal Justice‖, CBI Bulletin, Vol. 26, February 1992.

70. Deb, R., Police and Law Enforcement, S.C. Sarkar and Sons (P) Ltd, Calcutta, 1982.

71. Denning, Lord, The Due Process of Law (1980).

72. Dharmadhikafi, C.S., ―Criminal Justice System and Tribes in India‖, Central India Law Quarterly, Vol. 1, July-September 1988.

73. Dhavan, Rajeev, The Supreme Court of India – A Socio Legal Criteria of Judicial Techniques (1977).

74. Dias, R.W.M., Jurisprudence (1976).

75. Diecy, A.V., Introduction to the Study of the Law of the Constitution (1959).

76. Diwan, Paras, Indian Constitution: A Document of People’s Faith and Aspirations (1981).

77. Dubey, Harihar Prasad, The Judicial System of India, N.M. Tripathi, Pvt. Ltd, Bombay, 1968.

vii

78. Dubey, Harihar Prasad, The Judicial Systems of India and Some Foreign Countries, N.M. Tripathi Private Limited, Delhi, 1968.

79. Dubey, S.K., ―Gender Issue Criminal Justice and Women‖, Central Indian Law Quarterly, Vol. 9, October-December 1996.

80. Dumount, L. Homo Hierarchicus (1966).

81. Dutta, Nalini Kanta, ―Criminal Justice in Tradition of Hindu Society‖, Gauhati University Journal of Law, Vol. 4, 1990.

82. Faizan and Talib Javed Mustafa, ―Influence of Public Interest Litigation on Administration‖, Aligarh Law Journal, Vol. 11, 1996.

83. Feinberg, Joel and Cross Hyman (Ed.), Philosophy of Law (1975).

84. Fitzgerald, P.J., Salmond on Jurisprudence,Universal Law Publishing Co. Pvt. Ltd, New Delhi,2002.

85. Friedmann, W., Legal Theory (1953, 1960).

86. Fyzee, Outlines of Muhammedan Law (1974).

87. Galanter, Marc, Competing Equalities-Law and the Backward Classes in India (1984).

88. Gauba, O.P., The Concept of Social Justice with Special Reference to the Indian Constitutional, Unpublished Ph.D. Thesis, Department of Political Science, University of Delhi (1975).

89. Gaur, K.D., Criminal Law and Criminology, Deep and Deep Publications Pvt. Ltd, New Delhi, 2002.

90. Ghazvini, Mohd. Farajina, Police Protection to Victims of Crimes, Deep and Deep Publication, New Delhi, 2002.

91. Ghosh, Priyabrata, ―Songs in the Criminal Justice System of India‖, CBI Bulletin, Vol. 101, November 1995.

viii

92. Ghosh, S.K., Police in Ferment, Light and Life, New Delhi,1981.

93. Ghosh, Sree Priyabrata, ―New Dimensions of Indian Criminal Jurisprudence‖, Criminal Law Journal, Vol. 105, June 1999.

94. Ghurye, G.S., Caste and Race in India (1957).

95. Gill, K.P.S., Punjab: The Knights of Falsehood, Har-Anand Publications Pvt. Ltd, New Delhi, 1997.

96. Goyal, K.N., ―Criminal Justice Reform‖, Criminal Law Journal, Vol. 107, April 2001.

97. Goyal, K.N., ―Human Rights and Criminal Justice‖, Criminal Law Journal, Vol. 108, October 2002.

98. Gupta, A.S., The Police in British India 1861-1947, Concept Publishing Company, New Delhi,1979.

99. Gupta, B.N., Programmes for Scheduled Castes in Rural Development in India : Some Facts (1979).

100. Gupta, Gulab, ―Social Justice Perspective of Criminal Justice‖, Central India Law Quarterly, Vol. 1, August 1987.

101. Gupta, Rajiv, ―Salient Features· of Memorial Lecture of Hon‘ble Mr. Justice K.T. Thomas on New Trends in Criminal Law‖, All India Reporter, Vol. 89, April 2002.

102. Gupta, Ram Lal, Guide to Police Laws in India, New Delhi: Eastern Book Company, New Delhi, 1961.

103. Hadge, K.S., The Directive Principles of State Policy in the Constitution of India (1972).

104. Hayat, Qaiser, ―Human Rights and Criminal Justice System in India: A Study or Pre-trial Detainees‖, Aligarh Law Journal, Vol. 13, 1998.

105. Hideyatullah, M. (ed.), Constitutional Law of India (1984).

ix

106. Honore, A.M., “Social Justice” in Report S. Summers (Ed.), Essays in Legal Philosophy 61 (1970).

107. Huda, Syed Samshul, The Principles of the Law of Crimes in British India, Eastern Book Company, New Delhi,1982. Inciardi,

108. Iman, Mohammed (Ed.), Minorities and the Law (1972).

109. Indiresan, P.V., ―Restructuring the Criminal Justice System‖, CBI Bulletin, Vol. 8, February 2000.

110. Iyer, Krishna V.R., Police in a Welfare State, Asia Book Centre, New Delhi, 1958.

111. Iyer, V.R. Krishna, ―Beyond Human Justice‖, Civil and Military Law Journal, Vol. 16, No. 1, January-March 1980.

112. Iyer, V.R. Krishna, ―Consciousness, Criminal Behaviour and Crime‖, Civil and Military Law Journal, Vol. 19, No. 4, October-December 1983.

113. Iyer, V.R. Krishna, ―Crime and Correctional Processes Key Issue in Contemporary Criminology‖, Civil and Military Law Journal, Vol. 28, No. 4, 1982.

114. Iyer, V.R. Krishna, Minorities, Civil Liberties and Criminal Justice, People‘s Publishing House, Delhi,1980.

115. Iyer, V.R. Krishna, ―The Pathology of Indian Criminology and its Prognosis‖, Civil and Military Law Journal, Vol. 17, No. 1, January-March 1981.

116. Jain, B.S., Administration of Justice in Seventeenth Century India, Metropolitan Book Co. Pvt. Ltd, Hydrabad, 1970.

117. Jain, B.S., Administration of Justice in Seventeenth Century India (1970).

118. Jain, M.P., Indian Constitutional Law (1978, 1983).

x

119. Jain, M.P., Outlines of Indian Legal History, Fifth Edition, N.M. Tripathi Pvt. Ltd, Bombay, 1990.

120. Jain, M.P., Outlines of Indian Legal History, Wadhwa and Company, Bombay, 2005.

121. Jain, S.W., (Ed.), Child and the Law (1979).

122. Jain, U.C. and Nair, Jeevan, Judiciary in India, Pointer Publishers, Jaipur, 2000.

123. Jaiprakash, Nikhil, ―Criminal Justice System in India: Whither Commitment‖, CBI Bulletin, Vol. 12, January 2004.

124. Jaisingh, Indira, ―British Criminal Justice System‖, Lawyers’ Collective, Vol. 6, 1991.

125. James A., Criminal Justice, Harcourt Brace Jovanovich Publishers, London, 1987.

126. Jenning, I., Law of the Constitution (3rd edition).

127. Jha, Chandradhar, History and Sources of Law in Ancient India, Ashish Publishing House, New Delhi, 1987.

128. Jha, U.C., ―Summary Court-Martial in UK and USA‖, Civil and Military Law Journal, Vol. 39, No. 4, October-December. 2003.

129. Jindal, Vijay K., New Punjab Jail Manual, 1996, Chawla Publications Pvt. Ltd, Delhi, 1998.

130. Joga, K. Rama, ―Use of Criminal Law Machinery for Environment Protection‖, Supreme Court Cases, Vol. 7, 2001.

131. John, Baldwin (ed.), Criminal Justice, Martin Robertson, London, 1978.

132. Jois, M. Ram, Legal and Constitutional History of India, N.M. Tripathi Pvt. Ltd, Bombay, 1984.

133. Jois, M. Rama, Ancient Indian Law Eternal Values in Manu Smriti, Universal Law Publishing Co. Pvt. Ltd, Delhi, 2004.

xi

134. Jois, M. Rama, Legal and Constitutional History of India, Deep and Deep Publications, New Delhi,1990.

135. Jois, Ram, Seeds of Modern Public Law in Ancient Indian Jurisprudence, Eastern Book Company, New Delhi, 2000.

136. Junckerstroff, Henry K., Word Minorities (1961).

137. Kabir, Humayun, Minorities in a Democracy (1968).

138. Kalhan, Promila, ―Indian Judicial System‖, Civil and Military Law Journal, Vol. 23, No. 1, January-March 1987.

139. Kane, P.V., quoted in U.G. Sarkar, Epochs in Hindu Legal History (1958).

140. Kangle, R.P., The Kautilya Arthsastra, Part III, University Press. Bombay, 1965.

141. Kapoor, H.L., Police Investigation Law and Procedure, Ess Ess Publications, New Delhi,1989.

142. Kapoor, S., Bad Money, Bad Politics: The Untold Hawala Story, Har-Anand Publications, New Delhi, 1996.

143. Kaptein, Hendrik, ―Just Criminal Lawyers, Professional Ethics and Problems of Punitive Justice: Restorative Perspectives‖, Indian Socio-Legal Journal, Vol. 29, 2003.

144. Karan, Vijay, ―Moribund State of Criminal Justice System and Urgency of Total Reforms‖, Indian Journal of Public Administration, Vol. 40, July-September 1994.

145. Karkra, B.K., ―Police and Law and Order: Police Should not be Militarised‖, Civil and Military Law Journal, Vol. 33, 1977.

146. Kautilaya, The Legal History of India, C. Jamnadas and Co. Educational and Law Publishers, Bombay, 1984.

xii

147. Kelker, R.V., Criminal Procedure, Eastern Book Company, New Delhi, 2002.

148. Kelson, Hans, General Theory of Law and State.

149. Kelson, Hans, What is Justice (1957).

150. Khan, Iqbal Ali, ―Human Rights and Criminal Justice: A Pathetic State‖, Aligarh Law Journal, Vol. 13, 1998.

151. Khan, M.R.A., ―Theories of Punishment‖, Civil and Military Law Journal, Vol. 19, No. 1, January-March 1993. Krishnamurthi, Latha, ―Role Conflicts and Tensions of Women Police in Criminal Justice Administration‖, Indian Journal of Social Work, Vol. 57, 1996.

152. Khan, S.A., Power, Police and Public, Vishal Publications, Kurukshetra, 1983.

153. Kulshreshtha, V.D., Landmarks in Indian Legal and Constitutional History, Eastern Book Company, New Delhi, 1995.

154. Kumar, Surinder, ―Crime: Its Causation, Diagnosis and Treatment‖, Civil and Military Law Journal, Vol. 36, No. 4, 2000.

155. Kumar, Vijay, ―Human Rights and the Criminal Justice System in India‖, Central India Law Quarterly, Vol. 16, October-December 2003.

156. Lal, B., Corruption: Functional Anarchy in Governance, Siddharth Publications, New Delhi, 2002.

157. Lal, Batuk, Law of Evidence in India, Fifth Edition,Orient Publishing Company, Allahabad, 2005.

158. Laponce, J.A., The Protection of Minorities (1960).

159. Madan, J.C., Indian Police, Uppal Publishing House, New Delhi, 1980.

xiii

160. Madhavan, K., ―Criminal Justice System‖, CBI Bulletin, Vol. 26, July 1992.

161. Mahmood, Tahir, “The Progress in Implementing Social Directives of the Constitution – A Critical Appraisal” in Alice Jacob (Ed.), Constitutional Developments since Independence (1975).

162. Maine, Henry, Ancient Law (1917).

163. Malik, Sanjay, ―Justice through Inherent Powers of the Court‖, Civil and Military Law Journal, Vol. 36, No. 1, January-March, 2000.

164. Mandal, A.H. ―Crime, Victims and Their Treatment in the Administration of Criminal Justice‖, Central India Law, Quarterly, Vol. 14, January-March 200l.

165. Markose, A.T., Judicial Control of Administrative Action in India.

166. Marshall, H.H., Natural Justice (1959).

167. Massey, I.P. “Constitutional Protection to Educational Institutions of Minorities in India” in Mohammed Imam (ed.), Minorities and the Law (1972).

168. Mathew, K.K. On Democracy, Equality and Freedom (1978) Editing by Upendra Baxi.

169. Mathew, P.S., The Rights of Prisoners, Indian Social Institute, New Delhi,1982.

170. Mathur, K.M., Indian Police: Role and Challenges, Gyan Publishers, New Delhi, 1994. Mehraj, Uddin Mir, Crime and Criminal Justice in India, Deep and Deep Publications, New Delhi, 2005.

171. Mayne, Hindu Law and Usage (11th ed.).

172. Mehta, Asoka and Patwardhan, A., The Communal Triangle in India (1942).

173. Menon, N.R. Madhava, Criminal Justice Series, Vol. 1, West Bengal, 2001, Allied Publishers Private Limited, New Delhi,2002.

xiv

174. Metcalf, Barbara D. and Metcalf, Thomas R., A Concise History of India, University of Cambridge, Cambridge, 2002.

175. Mir, Mehraj-ud-din, Crime and Criminal Justice System in India, Deep and Deep Publications, New Delhi,1984.

176. Mishra, K.K., Police Administration in Ancient India, Mittal Publication, New Delhi, 1987.

177. Mishra, R.C., Cyber Crime: Impact in the New Millennium, Authors Press, New Delhi, 2005.

178. Misra, S.N., Indian Penal Code, Central Law Agency, Allahabad, 2004.

179. Mitra, B.B., Code of Criminal Procedure, 1973, Vols. I & II, Twentieth Edition, Kamal Law House, Kolkata, 2003.

180. Mittal, J.K., Indian Legal History, Central Law Agency,New Delhi, 2004

181. Mitter, V., Police Diaries Statement, Allahabad Law Publishers, Allahbad, 1970.

182. Mooshahary, Ranjit S., ―Criminal Justice System: The Quest for Truth‖, Indian Police Journal, Vol. 50, October-December 2003.

183. Mooshahary, Ranjit S., ―Criminal Justice System-I: Truth and Its Judicial Interpretation‖, CBI Bulletin, Vol. 12, March 2004.

184. Mooshahary, Ranjit S., ―Criminal Justice System-II: Courts Must become Party to the Quest for Truth‖, CBI Bulletin, Vol. 12, March 2004.

185. Mukherji, M.G., ―Thoughts on Human Rights and Criminal Justice System‖, Central India Law Quarterly, Vol. 14, April-June 2001.

186. Mukherji, Sabasachi, ―Indian Legal and Judicial System Problems and Challenges‖, Civil and Military Law Journal, Vol. 26, No. 1, January-March 1990.

xv

187. Mulla, Hindu Law (1970).

188. Munshi, K.M. 1 Indian Constitutional Documents Pilgrimage to Freedom (1902-1950) (1967).

189. Muralidhar, S., ―Rights of Victims in the Indian Criminal Justice System‖, Journal of the National Human Rights Commissioi1, Vol. 2, 2003.

190. Murthy, H.V. Sheeniwasa, History of India, Eastern Book Company, New Delhi, 2003.

191. Murthy, H.V. Sreenivasa, History of India, Part II, Eastern Book Company, New Delhi, 2003

192. Myneni, S.R., Indian History, Allahabad Law Agency, Faridabad, 2004.

193. Nabar, B.S., Forensic Science in Crime Investigation, Third Edition, Asia Law House, Hydrabad, 2002.

194. Nair, G. Sadasivan, ―Processual Criminal Justice and Human Rights‖, Cochin University Law Review, Vol. 20, March-June 1996.

195. Nanda, B.B. and Tewari, R.K., Forensic Science in India: A Vision for the Twenty First Century, Select Publishers, New Delhi, 2001.

196. Nath, Trilok, The Indian Police: A Case for a New Image, Sterling Publishers Pvt. Ltd. New Delhi, 1978.

197. Nayyar, Gurbachan Singh, ―Civil and Criminal Justice under Maharaja Ranjit Singh‖, Civil and Military Law Journal, Vol. 28, January-March 1992.

198. Oppenheim, Felix, E., “Equality” in David L. Sillis (Ed.), 5 International Encyclopedia of Social Sciences.

199. Pada, Durga Das, ―Some Suggestions for Revamping the Criminal Justice System‖, Criminal Law Journal, Vol. 108, March 2002.

xvi

200. Pada, Durga Das, ―Study on the Causes of Failure of Criminal Cases in India‖, Calcutta High Court Notes, Vol. 2, 200l.

201. Pai, Mahesh T., ―Delay in the Criminal Justice System: Common Cause Evaluated‖, Cochin University Law Review, Vol. 20, September-December 1996.

202. Pande, B.B., ―Human Rights and Criminal Justice Administration in India: Rhetoric and Reality‖, Delhi Law Review, Vol. 17, 1995.

203. Pande, Dinesh C., “Substantive Criminal Law Relating to Children” in S.N. Jain (Ed.), Child and the Law (1979).

204. Pant, Suresh Chandra, Hindu Polity, State and Government in Ancient India, Prakashan Kendra, Lucknow, 1971.

205. Paranjape, N.V., Criminology and Penology,Central Law Publication, Allahabad, 2004.

206. Paranjape, N.V., Indian Legal and Constitutional History, Central Law Agency, New Delhi 2004.

207. Parmar, M.S., Problems of Police Administration, Reliance Publishing House, New Delhi, 1992.

208. Pathak, G.S., “Inaugural Speech” in Mohammed Imam (Ed.), Minorities and the Law (1972).

209. Patnaik, Kishore Chandra, ―Review of Laws and Criminal Justice System to Deal with Corruption Cases‖, Cuttack Law Times, Vol. 91, 2001.

210. Patwardhan, M.V., Manusmriti – The Ideal Democratic Republic of Manu.

211. Paul, St., Epistle of Paul to Galatious.

212. Pillai, J.N. Chandrasekharan, ―Criminal Justice Administration: A Balance Sheet‖, Academy Law Review, Vol. 18, 1994.

xvii

213. Plato, “The Republic” cited in Edgor Bodenhomir, Jurisprudence (1970).

214. Pollock and Mulle, Indian Contract and Specific Relief Act (9th Ed.).

215. Pope, John XXVII, L. Encyclique Mater EI Magistra.

216. Popper, Karl, The Open Society and its Magistra.

217. Potter, Harold, The Open Society and its Enemies.

218. Potter, Harold, The Quest of Justice (1951).

219. Pound, Dean Roscoe, Social Control Through Law (1942).

220. Pound, Roscoe, ―The Limits of Effective Legal System‖, Civil and Military Law Journal, Vo. 16, No. 1, January-March, 1980.

221. Pradhan, Ananda Chandra, ―Crime – Control and Criminal Justice System‖, Cuttack Law Times, Vol. 90, 2000.

222. Pranjape, N.V., Criminology and Penology, Central Law Publications, New Delhi, 2005.

223. Prasad, Anirudh, Social Engineering and Constitutional Protection Sections in India (1980).

224. Prasad, D. Ravindra, “Agencies for Implementation and Surviellance” in B.A.V. Sharma and K.M. Reddy (Ed.), Reservation Policy in India (1982).

225. Prashar, Rajender, Police Administration, New Delhi: Deep and Deep Publications, New Delhi, 1986.

226. Puri, S.K., Indian Legal and Constitutional History, Allahabad Law Agency, Allahabad, 2003.

227. Pursle, Rober D., Introduction to Criminal Justice, Glencol Publishing Co. Inc, London,1977.

228. Pylee, M.Y., Constitutional Government in India (1960).

xviii

229. Qadri, S.M. Afzal, ―Police Role in Administration of Criminal Justice‖, Kashmir University Law Review, Vol. 6, 1999.

230. Qadri, S.M. Afzal, ―Women Victims and Criminal Justice‖, Social Defence, Vol. 31, 1991.

231. Rahi, M.S., ―Fresh Look on Administration of Criminal Justice Relating to Offences under (NDPS) Act: A Necessity or a Mere Academic Probe‖, Criminal Law Journal, Vol. 105, July 1999.

232. Raizada, R.K., ―Role of Public Prosecutor in Criminal Justice in India‖, Aligarh Law Journal, Vol. 9, 1998.

233. Rajan, V.N., Whither Criminal Justice Policy?, Sagar Publications, New Delhi,1983.

234. Ramachandra, V.G., Fundamental Rights and Constitutional Remedies (1970).

235. Rangarajan, L.N., Kautilya: The Arthashastra, Penguin Books India (P) Ltd, Delhi, 1987.

236. Rao, B. Shive, The Framing of India’s Constitution - A Study (1968).

237. Rao, K. Shreedhar, ―Criminal Justice System: Required Reforms‖, Journal of Indian Law Institute, Vol. 43, April-June 2001.

238. Rao, K. Sreedhar, ―Criminal Justice System – Required Reforms‖, Criminal Law Journal, Vol. 108, January 2002.

239. Rao, R. Subba, Fundamental Rights and Constitutional Remedies (1974).

240. Rao, T.C. Surya, ―Police vis-à-vis the Criminal Justice System‖, Andhra Law Times, Vol. 95, November 1998.

241. Ratanlal and Dhirajlal, Code of Criminal Procedure, Sixteenth Edition, Wadhwa and Company, Nagpur, 2004.

xix

242. Ratanlal and Dhirajlal, The Code of Criminal Procedure, Wadhwa and Company, Nagpur, 2002.

243. Ratanlal and Dhirajlal, The Indian Penal Code, Wadhwa and Company,Nagpur, 1997.

244. Ratanlal and Dhirajlal, The Law of Evidence, Twentieth Edition, Wadhwa and Company, Nagpur, 2004.

245. Ratnavel, S., ―Criminal Justice System in India‖, Indian Journal of Criminology and Criminalistics, Vol. 16, July-December 1995.

246. Reddy, K. Ramachandra, ―Suggestions for Speedy Justice in Criminal Trials‖, Supreme Court Journal, Vol. 3, 1990.

247. Resd, James S., “The Search for Justice” in John D. Hargreaves and Geotge Sheppersen (Eds.). Indirect Rule and the Search for Justice (1972).

248. Richard, S., Criminal Justice – An Introduction to Forensic Sciences, Englewood Cliffs: Prentice Hall, London, 1977.

249. Robson, W.A., Justice According to Law (1951).

250. Rubin, B., Terrorism and Politics, Macmillan, London,1991.

251. Saha, B.P., Indian Police Legacy and Quest for Formative Role, Konark Publishers Ltd, New Delhi, 1990.

252. Saini, R.S., ―Custodial Torture in Law and Practice with Reference to India‖, Journal of Indian Law Institute, 1994.

253. Salmond, The Law of Torts (1965).

254. Sanker, Sen, Police Today, Ashish Publishing, New Delhi, 1986.

255. Sankhyan, S.R., ―Criminal Justice System: A Framework for Reforms‖, Economic and Political Weekly, Vol. 34, 1999.

xx

256. Sarkar, Jadunath, Mughal Administration, Orient Longman, Bombay,1972.

257. Sarkar, U.C., Epochs in Hindu Legal History, Vishyeshvaranand Vedic Research Institute, Hoshiarpur,1958.

258. Sarkar, U.C., Legal Research Essays, Allahabad Law Agency, Allahabad. 1984.

259. Sarkar, U.G., Epochs in Hindu Legal History (1958).

260. Sartori, G., Democratic Theory quoted in Jagdish Swarup, Human Rights and Fundamental Freedom (1st Ed.).

261. Saxena, Anu, ―Prisons and State Institutions‖, Civil and Military Law Journal, 2000. Sethi, R.P., ―Criminal Justice System: Problems and Challenges‖, Aligarh Law Journal, 1999-2000.

262. Saxena, K. Anil, Professionalism in Indian Police, APH Publishing Corporation, New Delhi,1995.

263. Schwartz, Bernard, Constitutional Law (1972).

264. Seervai, H.M., Constitutional Law of India, N.M. Tripathi Pvt. Ltd, Bombay, 1984.

265. Seervai, H.M., Constitutional Law of India, Vol. II, Fourth Edition, Universal Law Publishing Co. Pvt. Ltd, New Delhi, 2006.

266. Seervai, H.M., The Position of Judiciary under the Constitution of India, Bombay University Press, Bombay, 1978.

267. Seervi, H.M., Constitutional Law of India – A Critical Commentary (3rd Ed.).

268. Sen, D.K., A Comparative Study of the Indian Constitution Vol. I & II (1967).

269. Sen, Shankar, Police in Democratic Societies, Gyan Publishing House, New Delhi, 2000.

xxi

270. Setalvad, M.C. The Indian Constitution (1950-1965) (1967).

271. Sethna, M.J., Society and the Criminal, N.M. Tripathi Pvt. Ltd., Bombay, 1971.

272. Sharma, B.A.V., “Development of Reservation Policy” in B.A.V. Sharma and K. Madhusudan Reddy (Ed.), Reservation Policy in India (1982).

273. Sharma, B.R. and Kashyap, Vandna, ―Prison System in India: A Historical Retrospection‖, Civil and Military Law Journal, Vol. 30, No. 2, April-June 1994.

274. Sharma, B.R., ―Constitutional Rights of Prisoners‖, Civil and Military Law Journal, Vol. 21, 1985.

275. Sharma, B.R., Scientific Criminal Investigation, Universal Law Publishing Co, New Delhi, 2006.

276. Sharma, D.P., ―Speedy Justice and Indian Criminal Justice System‖, Indian Journal of Public Administration, July-September 1999.

277. Sharma, D.P., ―Speedy Justice and Indian Criminal Justice System‖, Indian Journal of Public Administration, Vol. 45, July 1999.

278. Sharma, Dharam Pal, ―Delay in Criminal Trials‖, CBI Bulletin, Vol. 25, August 1991.

279. Sharma, K.K., Law and Order Administration, National Book Organisation, New Delhi, 1985.

280. Sharma, M.L., ―Role and Function of Prosecution in Criminal Justice‖, Part II, CBI Bulletin, Vol. 5, October 1997.

281. Sharma, Neeta, ―Modernising Police Force‖, Civil and Military Law Journal, Vol. 36, No. 3, July-September 2000

282. Sharma, P.C., ―Criminal Justice System and the Fight against Corruption: Challenges Ahead‖, CBI Bulletin, Vol. 11, December 2003.

xxii

283. Sharma, P.D., Police Polity and People of India, Uppal Publishing House, New Delhi, 1981.

284. Sharma, Ram Avtar, Justice and Social Order in India, Intellectual Publishing House, New Delhi, 1984.

285. Sharma, Surya P., “Black Revolution and United States Supreme Court” in B. Ramesh Babu (Ed.), Contemporary American Politics and Society – Perspectives from India (1972).

286. Sharma, Surya P., “Freedom in Matters of Religion” in Mohammed Imam (Ed.), Minorities and the Law (1972).

287. Sherawat, B.S., ―Criminal Courts and Justice Delivery System‖, Indian Bar Review, Vol. 28, January-March 200l.

288. Shermen, L.W., Ethics in Criminal Justice Education, Hastings, New York, 1982.

289. Shetty, K.P.K., Fundamental Rights and Socio-Economic Justice in the Indian Constitution (1969).

290. Shourie, Arun, Courts and their Judgments, Roopa and Company, New Delhi, 2001.

291. Shourie, B.D., ―Crime and Justice‖, Civil and Military Law Journal, Vol. 35, No. 4, October-December 1999.

292. Shukla, V.N., Constitution of India, Eastern Book Company, New Delhi, 2001.

293. Siddique, Ahmad, Criminology, Eastern Book Company, New Delhi, 2005.

294. Sill, David, L. (Ed.), 8 International Encyclopedia of Social Sciences (1968).

295. Singh, Avtar, The Law of Contract (1976).

296. Singh, B.P., ―Human Rights in the Administration of Criminal Justice System in India‖, MDU Law Journal, Vo. 7, 2002.

xxiii

297. Singh, D.K., The Constitution of India (1982).

298. Singh, D.R., ―Evolution of Indian Criminal Justice System: Influence of Political and Economic Factors‖, Indian Journal of Public Administration, Vol. 40, July-September 1994.

299. Singh, Hira, ―U.N. Crime Prevention and Criminal Justice Programme‖, Social Defence, Vol. 31, October 1991.

300. Singh, Jagmohan, ―Law and Justice in Jammu and Kashmir‖, Civil and Military Law Journal, Vol. 27, No. 4, October-December 1991.

301. Singh, Joginder, Inside Indian Police, Gian Publishing House, New Delhi, 2002.

302. Singh, M.M., The Constitution of India (1975).

303. Singh, N., The World in Bribery and Corruption, Mittal Publications, New Delhi, 1998.

304. Singh, N.K., The Politics of Crime and Corruption, Harper Collins Publication India, New Delhi, 1999.

305. Singh, Parmanand, Equality, Reservation and Discrimination in India (1982).

306. Singh, Prakash, ―Police and Law and Order: Police and the Question of Accountability‖, Civil and Military Law Journal, Vol. 33, 1997.

307. Singh, Sneh Lata, ―Human Rights and Administration of Criminal Justice in India‖, Journal of Constitutional and Parliamentary Studies, July-December 2001.

308. Singh, Subhash Chandra, ―Criminal Justice: An Overview‖, Criminal Law Journal, Vol. 105, March 1999.

309. Singh, Subhash Chandra, ―Participation of Victim in the Criminal Justice Process‖, Criminal Law Journal, Vol. 104, May 1998.

xxiv

310. Singh, Subhash Chandra, ―Role of Public Prosecutor in the Administration of Criminal Justice‖, Criminal Law Journal, Vol. 106, June 2000.

311. Sinha, B.S., Legal History of India, Central Law Agency, Allahabad, 1976.

312. Sinha, Ranjit, ―Administration of Criminal Justice – Need for Co-ordination between Police and Correctional Process‖, CBI Bulletin, Vol. 7, September 1999.

313. Sirahi, J.P.S., Criminology and Criminal Administration, Allahabad Law Agency, Allahabad, 1983.

314. Sirohi, J.P.S., Criminology and Criminal Administration, Allahabad Law Agency,Allahbad, 1995.

315. Siwach, J.R., Dynamics of Indian Government and Politics (1985).

316. Spancer, Justice (1891).

317. Spann, R.N. (Ed.), Constitutionalism in Asia (1963).

318. Srinivas, M.N.¸ Social Change in Modern India (1972).

319. Srivastava, P.V., Indian Police Law and Reality, Manas Publication, New Delhi, 1999.

320. Srivastava, S.P., ―Human Rights and Administration of Criminal Justice in India‖, Indian Journal of Criminology and Criminalistics, Vol. 19, January-April 1998.

321. Stephen, Sir James Fitzjames, A History of the Criminal Law of England, Burt Franklin, New York,1983.

322. Stessens, G., Money Laundering: A New International Law Enforcement Model, Cambridge University Press, Cambridge, 2000.

xxv

323. Subramanian, S., ―Police and Society‖, Civil and Military Law Journal, Vol. 31, No. 3, July-September 1995.

324. Sudan, Madhu, ―Role of Public Prosecutor in Administration of Criminal Justice‖, Criminal Law Journal, Vol. 103, September 1997.

325. Supakar, Shraddhakar, Law of Procedure and Justice in Ancient India, Deep and Deep Publications, New Delhi,1986.

326. Suresh, H., ―Human Rights and Criminal Justice Functionaries‖, Economic and Political Weekly, Vol. 31, 1996.

327. Sutherland, Edwin H. and Gressey, Donald R., Principles of Criminology, Fourth Edition, The Times of India Press, Bombay, 1968.

328. Swarup, Jagdish, Human Rights and Fundamental Freedoms, Tagore Law Lectures (1st Ed.).

329. Taylor, Ralph B., Research Methods in Criminal Justice, McGraw Hill Inc, New York,1994.

330. Tendon, Mahesh Prasad and Tandan, Rajesh, Jurisprudence: Legal Theory, Allahabad Law Agency, Faridabad, 1998.

331. Tiwari, Arvind, ―Crime Prevention and Criminal Justice System‖, CBI Bulletin, Vol. 12, January 2004.

332. Tiwari, Uma Kant, The Making of the Indian Constitution (1967).

333. Tripathi, B.N. Mani, Jurisprudence Legal Theory, Allahabad Law Agency, Allahabad, 2001.

334. Tripathi, P.K., Some Insights into Fundamental Rights (1972).

335. Vacchio, G. del, Justice : An Historical and Philosophical Essay (1952).

xxvi

336. Vadackumchery, James, Indian Police and Miscarriage of Justice, APH Publishing Corporation, New Delhi, 1997.

337. Vadackumchery, James, Police Enforcement Crimes and Injustice, Gyan Publishing, New Delhi,1999.

338. Vadackumchery, James, Police Enforcement, Crimes and Injustice, Gyan Publishing House, New Delhi, 2000.

339. Vadackumchery, James, Police Enforcements, Crime and Injustice, APH Publishing House ,New Delhi, 2001

340. Vadackumchery, James, The Police and Criminal Justice, APH Publishing Corporation, New Delhi, 1997.

341. Vaghela, Ramesh P., ―Human Rights in Criminal Justice System: Conflicting Priorities‖, Gujarat Law Herald, Vol. 17, No. 2, 1997.

342. Vakil, A.K., Reservation Policy and Scheduled Castes (1st Ed.).

343. Varadachariar, S. The Hindu Judicial SystemThe Hindu Judicial System (1946).

344. Varshni, D.P., How to Form a Charge, Eastern Book Company, New Delhi, 1994.

345. Venkataraman, K., ―Delay in Criminal Justice Delivery System: Cause Effect Remedy‖, Criminal Law Journal, Vol. 106, June 2000.

346. Venkateswara, M., ―Need to Amend Section 482, Criminal Procedure Code to Enable the Subordinate Judiciary to Administer Justice Effectively‖, Criminal Law Journal, Vol. 98, November 1999.

347. Verma, Arvind, ―Human Rights in Criminal Justice System‖, Indian Journal of Criminology and Criminalistics, Vol. 16, July-December 1995.

xxvii

348. Verma, B.L., Development of Indian Legal System, Deep and Deep Publications, New Delhi, 1987.

349. Verma, G.P., Caste Reservations in India (1980).

350. Viastos, Gregory, “Justice and Equality” in Richard B. Brandt (Ed.), Social Justice (1962).

351. Vibhute, K.I., Criminal Justice, Eastern Book Company, New Delhi, 2004.

352. Vibhute, K.I., Criminal Justice: A Human Rights Perspective of Criminal Justice Process in India, First Edition, Eastern Book Co, Lucknow, 2004.

353. Vinogradoff, Collected Papers quoted in Anirudh Prasad, Social Engineering and Constitutional Protection of Weaker Sections in India (1980).

354. Vittal, N. and Mahalingam, S., Fighting Corruption and Restructuring Government, Manas Publications, New Delhi, 2000.

355. Wade and Bradley, Constitutional Law (1966).

356. Wade, and Phillips, Constitutional Law (1960).

357. Wadhwa, Kamlesh Kumar, Minorities Safeguards in India (1975).

358. Weston, Paul B. and Wells, Kenneth M., Elements of Criminal Investigation, Prentice Hall Inc, New Jewrsey,1971.

359. Wilkinson, P., Terrorism: British Perspectives, Dartmouth Publications, Aldershot, 1993.

360. Willis, Constitutional Law of United States.

361. Winfield, Tort (1967).

362. Wirth, Louis, “The Problem of Minority Groups” in Talcot Persons and Others (Eds.), The Theories of Society (1965).

363. Wright, Lord, Legal Essays and Addresses (1939).

xxvii

364. Yaqin, Anwarul, Constitutional Protection of Minority Educational Institutions in India (1982).

365. Zwllict, Eleemor, Dr. Ambedkar and Naher Movement, Unpublished Dissertation, University of Penysylvania (1969).

Journals & Magazines

o Administrative Change, (Jaipur)

o All Indian Reporter, (Nagpur)

o CBI Bulletin (Delhi)

o Civil and Military Law Journal (Delhi)

o Civil Services Chronicle

o Criminal Law Journal

o Delhi Law Review (Delhi)

o Economic and Political Weekly,( Mumbai)

o Frontline, (Chennai)

o India Today (Delhi)

o Indian Journal of Criminology and Criminalistics (Hydrabad)

o Indian Journal of Politics, (Aligarh)

o Indian Journal of Public Administration, (New Delhi)

o Indian Police Journal,( New Delhi)

o Journal of the Constitutional and Parliamentary Studies, (New Delhi)

o Journal of the Indian Law Institute,( New Delhi)

o Journal of the National Human Rights Commission (Delhi)

o Mainstream, (New Delhi )

o Political Science Quarterly,( New Delhi)

xxix

o Punjab Journal of Politics,( Amritsar)

o Punjab Law reporter, (Chandigarh)

o Seminar,(New Delhi)

o Social Science Research Journal, (New Delhi)

o Socio Legal Journal (Jaipur)

o Supreme Court Journal (New Delhi))

o Third Concept, (New Delhi)

o Vidhanmala, (HP)

o Yojana, (New Delhi)

Newspapers

o Indian Express, (New Delhi)

o The Hindu, (Chennai)

o The Hindustan Times,( New Delhi & Lucknow)

o The Times of India, (New Delhi & Lucknow)

Websites

o www.up.nic.in

o www.apbnews.com

o www.bprd.gov.in

o www.countercurrents.org

o www.crimelibrary.com

o www.cybercrime.gov

o www.faculty.ncwc.edu

o www.fraud.org

o www.frontlineonnet.com.

o www.icj.org

o www.indian.edu

xxx

o www.indiatogether.org

o www.internationalstudies.ilstu.edu

o www.ncrb.com

o www.ncrb.nic.in

o www.ojp.usdoj.gov

o www.pib.nic.in

o www.securityfocus.com

o www.thehindu.com

o www.time.com

o www.zdnetindia.com

ANNEXURES

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 1 Researcher: Divya Anand

Note: 1. This Exercise is for academic purpose only. 2. You may choose not to mention your name.

S.No. Description Option Code 1. Name

2. Category

Schedule Tribe 1

Schedule Caste 2

Other Backward Class 3

General 4

3. Gender Female 1

Male 2

4. Educational Status

Upto High School 1

High School to Intermediate 2

Inter to Postgraduate 3

Illiterate 4

Professional Qualification 5

5. Nature of case presented by respondent in the court

Revenue 1

Civil 2

Criminal 3

Other 4

6. Pendency of the cases in the courts of law

0-3 years 1

4-7 years 2

8-10 years 3

10-15 years 4

above 15 years 5

7. Reasons for delay

Procedure of Kutchery 1

Apathy of Advocates 2

Unavialibiltiy of evidence/witnesses 3

Personal reason 4

Other 5

8. Impartiality of Justice

Yes 1

No 2

Can not Say 3

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 2 Researcher: Divya Anand

9. The Reasons of Partiality

Corruption, giving and taking 1

Advocate do not take interest in the case, carelessness towards the job

2

Judges has no positive attitude, carelessness to the job, doesn’t go to the depth of the case and are not honest

3

Advocates are not capable 4

Relationship with judges (of advocates or person interested in the case)

5

Much more number of holidays 6

Political influence or relationship 7

Witness becomes hostile, does not come in time, lack of security to witnesses.

8

Complex or procedure of court 9

Greedy advocates 10

Influence of eminent advocates, on the court

11

10. Misuse of money in Judiciary

Yes 1

No 2

11. Suggestions to made district judicial system efficient

Importance should be given to the study of law, standard of study of law be improved

1

Students must be made aware towards justice

2

Disposal of the case by speedy, duration must be fixed to decide a case, judges must be made accountable for disposal

3

Advocates must be alert, honest for their job/case, they should study also

4

Number of judges be increased and they take interest in every case, they must be efficient, honest and capable

5

Number of courts be increased, all facilities should be provided in courts

6

Number of holidays be decreased 7

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 3 Researcher: Divya Anand

Without reason dates should not be given

8

Advocates must be capable, incapable advocates must be ousted. Test should be conducted, for advocates to practices in the court

9

Security should be provided to witnesses, testimony of witnesses should be taken in the initial stage of the case (immediately after the occurrence of event)

10

Procedure for service of summons be simple if service of summons is failed warrant should be issued immediately

11

Procedure of court/kutchery be simple (even an illiterate person capable to understand it) and less expansive

12

Fee of advocates be fixed 13

Capable and honest employees 14

Fabricated evidence and false witnesses should be stopped

15

12. Judiciary provides speedy justice as compare to earlier time

Yes 1

No 2

Can not say 3

13.

Alertness of judiciary towards weaker section of society in comparison to earlier time

Yes 1

No 2

14.

Reasons of alertness of the judiciary towards weaker section

Laws has been made for the weaker sections

1

Influence of society, awareness is increased in society

2

Sympathy or activity of judges towards weaker section.

3

Effect of media and mass communication and newspapers

4

15. Efficient work by local judiciary as compare to earlier time

Yes 1

No 2

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 4 Researcher: Divya Anand

16. Reasons for efficient and active working by local judiciary

Judges have become interested to their job

1

Wish of judge (or court) to be famous 2

Salary has been increased, reduction in corruption, facilities have been increased

3

Special courts have been established 4

Plaintiffs or defendants are aware 5

Burden/pressure of huge litigation on the judge/court

6

Apathetic nature of judges towards their job

7

Typical judicial procedure, more and more paper work

8

Dates are given due to apathetic nature of judges and advocates

9

Much more Number of holidays 10

Files are not produced in time due to corruption

11

Judges does not understand their responsibility / accountability towards society and consider themselves as elite class (above common men)

12

Lack of efficient/able judges 13

Lack of facility in the courts 14

Political pressure on judiciary 15

Non co-operation, greediness, and apathetic nature of advocates

16

Thank you for your Cooperation !!!!

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 1 Researcher: Divya Anand

Note: 1. This Exercise is for academic purpose only. 2. You may choose not to mention your name.

S.No. Description Option Code

1. Name

2. Other source of income of

respondents

No other income source 1

Yes- having other income source also 2

3. Political link of

respondents

Yes 1

No 2

4. Year of starting practice

in kutchery

Prior to 1995 1

1996 – 2000 2

2001 – 2005 3

2006 – 2010 4

2011 – till date 5

5. Field of practice by

respondents

Criminal 1

Civil 2

Revenue 3

Other 4

6. Problems before district judicial system

Delay in disposal or very low rate of

disposal 1

Witness remains absent or avoid

their presence in court 2

Taking stay orders (injunctions) by

advocates 3

Advocate don’t co-operate in

disposal, taking dates even without

any genuine reason. 4

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 2 Researcher: Divya Anand

Less number of courts 5

Less number of judge, vacant court 6

No sitting arrangements in courts for

advocates 7

Facilities like lighting, pure drinking

water are not available 8

Corruption 9

Less attention is paid to junior

advocates, lack of chamber for

advocates 10

Judges are biased/less

able/comparatively not able 11

Time limit for disposal of caste is not

prescribed 12

7. Economic exploitation of

clients by respondents

Yes 1

No 2

8.

Prescribed limit of fee

charged by advocates

from clients

Yes 1

No 2

9.

Minimum and maximum

fee charged by

respondents from clients

According to the nature and fact of

the case 1

According to the valuation of suit 2

According to the economic status of

client 3

Reasonable 4

As easy 5

Rs. 1,200/- to Rs. 6,000/- 6

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 3 Researcher: Divya Anand

Rs. 3,000/- to Rs. 8,000/- 7

Rs. 1,000/- to Rs. 10,000/- 8

10.

Relaxation provided by

respondents to the

economically weaker

section of the society

Yes 1

No 2

11. Slow disposal of cases

due to procedural delay

Yes 1

No 2

12.

Reasons accountable for

procedural delay

Investigation process even in petty

offences 1

Delay in preparing records and

statements of witnesses 2

Taking unnecessary stay order

(injunction) by advocates 3

Time limit prescribed for giving

written statement is not followed 4

The courts do not observe or follow

the rules strictly 1

Witnesses do not come on the

scheduled time, avoid their presence

in the court, no security for

witnesses, importance is not given to

witnesses

2

Plenty of cases and giving long dates 1

No mutual adjustment among

advocates in doing justice 2

Much more number of holidays 3

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 4 Researcher: Divya Anand

Officers do not take interest in their

work. 4

Government counsel or advocate of

adverse party do not take interest in

their job/work 5

Delay in service of summons 6

All documents of the case are not

studied by judges themselves 7

Much more paper work formalities 8

13. Suggestions to remove

procedural delay

Instead of challan, report be

submitted directly to the court 1

Judicial officers must be stric 2

Number of holidays be reduced,

officers should sit in court full time. 3

Witnesses be called in time with the

help of police 4

Judicial officers be made

accountable to decide case within

fixed time period 5

Officers should study documents

himself 6

Number of courts be increased,

court should not be vacant 7

Daily inspection of case diary in

court by judge 8

Cases be present in fast track

courts. 9

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 5 Researcher: Divya Anand

Without genuine reason stay order

should not be passed 10

14. Causes of partiality by

judges

Loss in the moral values of the

society (judges are also affected with

this) 1

Corruption, economic influence 2

Caste influence, relationship 3

Pressure politics 4

15.

Usefulness of measures

to make justice

inexpensive and speedy

Yes 1

No 2

16. Suggestion to make those

measures meaningful

Time limit for disposal be fixed 1

The judges should study the case

himself and only then pass the order 2

17. Misuse of time and

meaning in court

Yes 1

No 2

18. Nature of misuse of time

and money in court

Justice is not done in time, case

runs long by which personal work of

litigants (work for earning) is

suffered

1

Money and time is spent on

transportation to and from kutchery

on dates of the case 2

Money has to given for taking dates 3

No control of officers on courts’

employees, they take money for

different procedural work 4

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 6 Researcher: Divya Anand

19. Relationship of the

respondents with judges

Good 1

Normal 2

Professional 3

20.

Speedy justice and

paying attention to the

economically backward

classes by local judiciary

as compare to earlier

time

Yes 1

No 2

Thank you for your Cooperation !!!!

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 1 Researcher: Divya Anand

Note: 1. This Exercise is for academic purpose only. 2. You may choose not to mention your name.

S.No. Description Option Code

1. Name

2. Year of appointment as Judge

Before 1990 1

1991 – 2000 2

2001 – 2010 3

2010 – till date 4

3. Reasons of heavy burden

on local judiciary

False litigation 1

Administrative dis functionalism i.e. administrative functionaries of government are not working properly

2

Pressure tactics are used by advocates for favourable order

3

Advocates often are complaining which results in harassment of judicial officer

4

Family discrimination 5

Untrained advocates 6

Contracting of cases 7

Increasing faith of the people on the judicial system

8

Socio-economic change 9

Increasing graph of crime and social imbalances

10

4. Disposal of cases by

Judges

Depends upon the capacity and ability of particular person (judge)

• 10 to 20 per month

• affects quality

1

10 cases per month

• for every category of cases different quota is fixed

• no negative effect

2

25-30 cases can easily be decided per month

• has to disposal off 130-150 per month

3

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 2 Researcher: Divya Anand

• it causes stress

40-60 can be decided per month

• 150-200 to dispose off every month

• justice is delayed

4

40-50 per month

• 200-300 per month to decide

• no negative effect

5

5. Suggestions for removal

of procedural delay

Amendment be made in Cr. P.C. and C.P.C. 1

Law of evidence be precise and easy (easily intelligible) 2

No 3

Procedure be made easy and amendment in I.P.C. is needed by which impracticable sections be omitted

4

Laws, made by Britishers, should be revised according to the modern needs of the Indian society

5

6. Nexus between local politicians and criminals

Yes 1

No 2

7. Political Interference in the work of respondents

Yes 1

No 2

8. Judges are not

completely impartial in doing justice

Yes 1

No 2

9. Level of job satisfaction

Admission facility (e.g. quota) for children in educational institutions is desired

1

Residential facilities (such as computers, security, home library) must be provided

2

Recommendations of judicial pay commission be enforced completely

3

10. Suggestions for Police remains inactive in most 1

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 3 Researcher: Divya Anand

streamlining the police force

cases, so one wing of the police system be given under the control of judicial administration Police should investigate truly and impartially, control over administration be strengthen, investigating police must be separated from other responsibilities (such as maintenance of law and order)

2

Cr.P.C., C.P.C. and Police Act must be amended to meet the requirements of modern India

3

Police’s inappropriate working causes judicial delay, corruption prevails in police system, so police reforms are the need of the time.

4

11.

Suggestions to make judicial system time

bound and inexpensive

Property cases, up to a certain limit, be made free of court fee

1

Disputes/cases up to a certain valuation of property be disposed off completely on the level off District Judge and High Court i.e. in such cases there should be no appeal to High Court and Supreme Court respectively.

2

Petty cases of criminal nature (punishable by fine) be disposed off on governmental level after lapse of certain time period

3

Moving court should be established 4

There should be change in the judicial system according to the circumstances of today’s India

5

Administrative reforms are compulsory

6

The people should be educated in rules of laws

7

Extension of Lok Adalats 8

Parliament should discuss and make legislation in this regard

9

12. Problems before district judicial system

Tactics of local pressure group of advocates

1

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 4 Researcher: Divya Anand

Boycott and strikes for personal interests by advocates

2

The tendency ‘Let the court decide’ to resolve the administrative, political or peoples’ related other problem

3

Burden of work 4

Inappropriate facilities in courts 5

Working conditions in court room are not good

6

Lack of pure and sanitated food and drinking

7

Distorted decisions given by Panchayats which causes increase in litigation

8

Advocates use every meaningful or non-meaningful, moral-immoral methods for favourable order

9

13. Usefulness of measures made to make justice

inexpensive and speedy.

Yes 1

No 2

14. Working efficiency of

local judiciary as compare to earlier time

Yes 1

No 2

15.

Reasons of Efficient Working by Local

Judiciary

Lok Adalat 1

Resources (like IT, use of computer) have increased working efficiency

2

Present generation is adequately literate and has some knowledge of law

3

Law books are available in library 4

With the intervention of Hon’ble Supreme Court facilities has been provided

5

Working style has been reformed 6

16. Alertness of judiciary Yes 1

Judicial Reforms in India: A Case Study of Uttar Pradesh Page 5 Researcher: Divya Anand

towards weaker section of society No 2

17. Suggestions to Improve Efficiency of Judiciary

Local pressure should be abolished, strike and boycott must be stopped 1

Number of courts be increased 2

There should be control over false litigation 3

More facilities be provided to judicial officers 4

Advocate be trained and disciplined 5

Attempts should be made to tell the actual position of the case of litigants

6

Tenure of judges be fixed, work load be reduced 7

The judicial system should be transparent, number of judges be increased

8

Workshop should be organized in connection with new enactment of laws.

9

For the appointment of judge practice experience of at least one year as an advocate should be compulsory and after appointment some part of training must be imparted on job with senior judges.

10

Thank you for your Cooperation !!!!