Our Judicial System: Its Evaluation

Coming to Gujarat one naturally thinks of the contribution of this State to the cause of the country's liberation from foreign yoke by giving to the country some of the most illustrious leaders and reformers. The country is indeed indebted to this tract of land which gave birth to Mahatma Gandhi— the father of the nation, the architect of freedom, the one who apart from being a shrewd political leader was a great moral crusader and a valiant fighter for truth. He was one the like of whom are born in centuries and whose place in the backdrop of history is along with Buddha and Christ. Gujarat is also the birth place of Sardar Patel whose contribution to the cause of freedom and the integration of the States constitutes one of the most glorious chapters of India's history. The country has yet to fully acknowledge what it owes to the great Sardar. Gujarat also gave birth to Swami Dayanand, who played a most significant part in ridding Hinduism of superstition, ignorance and obscurantism. Apart from being a great religious leader creating a new awareness of the message of Vedas, he was also one of the greater social reformers.  Meeting the members of the Bar one naturally has some feelings of trepidation because as a group there is hardly any more august, any more discerning and also perhaps any more sceptical. One is also conscious of the great past of the profession, the imprint the members of the Bar have left on the sands of time and the glorious role they have, on occasions, played as sentinels of cherished values and basic liberties. The members of the Bar, there can be no doubt, are inheritors of great traditions.  In India the pre-Independence era produced great stalwarts in the legal profession, and in the liberation of the country if there is one profession which made the largest contribution it was that of law. Mahatma Gandhi, Pandit Moti Lal Nehru, Lala Lajpat Rai, Mr. C. R. Das, Pt. Jawahar Lal Nehru, Sardar Patel, were all from the legal profession. The members of the Bar were thus looked upon as natural leaders of the community. The position since then appears to have changed, and I am not sure whether those in the world of law can still claim that primacy in social hierarchy as it existed in earlier years. This is a matter that should engage our attention and we must ponder over the causes of the same.  The question we have to ask is why unlike in the past, the leading members of the Bar are generally keeping away from the political arena. Why is it that they are not getting involved in problems which beset the nation with a view to seek their solution? Linked with the above is the question as to whether the quality of our political life has not suffered because of the fact that the leading members of the Bar have generally kept themselves aloof from active political life.  Meeting the members of the Bar is not merely an occasion of exchanging pleasantries and talking of platitudes, it is also the time for introspection and heart-searching. The destiny of each one of us in the world of law, of the practising lawyers and of those on the Bench, is linked with our judicial system. Enlightened self-interest must, therefore, induce us to have a close look at our judicial system. Some of the questions which face us are, as I said elsewhere: Does our judicial system satisfy the demand for justice? Does it fulfil the expectations of the people? Are courts of law looked upon as temples of justice, where it is administered without fear or favour, oblivious of the personalities of the litigants and without regard to their long purse or high status? Does the common man have an abiding and unshaken faith in the process of justice as administered by the courts? It is upon the answer to these questions that our judicial system would ultimately be judged. The image of the courts in the ultimate analysis depends essentially upon the way the cases are handled, upon the extent of confidence the courts inspire in the parties to the cases before them, upon the promptness or absence of delay in the disposal of cases, upon the approximation of the judicial finding of fact with the realities of the matter. We must remember that in the final analysis, the strength and failure of our judicial system, its utility and credibility as a necessary organ of the State in a civilised society, the respect it would evoke and the confidence it would inspire would depend upon the way it satisfies the hopes and aspirations of the people, of the common man, in the quest for justice, in keeping the scales even in any legal combat between the rich and the poor, between the mighty and the weak between the State and the citizen, without fear or favour.  No evaluation of our judicial system would be complete and realistic unless we take into account some of the infirmities which have crept into it, or some of the drawbacks which have manifested themselves. Firstly, there is the question of delay in the disposal of cases. When people approach the courts for redress of their grievances, they do so in the fond hope that relief would be granted to them at a reasonably early date. As it is, what we find is that the cases linger on for years and years. This is true not only of ordinary run of cases but also of those cases which, on account of their very nature, need an early disposal and call for prompt relief to the plaintiff or the petitioner. The problem of delay and heavy arrears has given rise to disillusionment with our judicial system and tarnished its image.  In projecting the image of the courts, in tackling the problem of arrears, in dealing with the question of delay in the disposal of cases, the members of the Bar, no less than those on the Bench, have a significant role to play. Without their active co-operation, it would be difficult to bring about real improvement or any substantial change. If arrears go on accumulating and piling up, it would create mass disenchantment and result in the collapse of the judicial system. As I said earlier, our destiny is linked with the judicial system. Enlightened and long-range self-interest, no less our allegiance to the system, therefore, demands that we should all put our heads together to tackle this problem of delay and backlog of cases and take concrete and effective steps to remedy this malady.  Another question which might engage our attention is how far the judicial findings of fact accord with the realities of the situation. Judges, of course, have to give their findings upon the evidence adduced in the case. Sometimes witnesses do not tell the truth. On other occasions, persons who could give the true version are not willing to come forward and give evidence as it might have the effect of antagonising one of the parties. Whatever might be the reason, the result is that a judicial finding of fact is sometimes entirely divorced from the realities of the matter. It is one thing if this incongruity between the reality and the judicial finding of fact is confined to a small number of cases. If, however, the incongruity between the realities and the judicial findings of fact becomes extensive and widespread, it is bound to shake the confidence of the people in the ability of the courts to ascertain the truth of the matter and thus to do substantial justice. Although it is not possible in any judicial system to prevent such incongruities in a marginal number of cases, our effort should be to ensure that our judicial system functions in such a manner that, consistently with a fair procedure, such incongruities are reduced to the minimum. Question has been raised, in the above context, whether the passive role which is generally played at present by the Judges in the adversary system, leaving it to the opposite counsel to bring on record whatever material they may consider necessary for their respective cases, should not give place to a more active role of the judges. This question is not free from difficulties and it may become necessary sometime to discuss its pros and cons. We, in the world of law, have for long taken for granted the respect of the people. There is astir to-day a spirit of scepticism and, to some extent of iconociasm. There is also much greater awareness of rights, and people are acquiring new consciousness of the strong points and shortcomings of different human institutions. Many of us in the world of law have so far been allergic to criticism. There is, perhaps, need today for change in our mental attitudes. If weaknesses have crept into the system, they cannot be wishfully brushed under the carpet, nor can criticism be silenced even by threat of contempt of court. Contempt of court is no answer to genuine criticism of the functioning of our courts. Courts, like all other human institutions, have to earn reverence through the test of truth. If weaknesses and drawbacks have crept into the system, they have to be set right.  To talk of some of the drawbacks and infirmities which have manifested themselves in our judicial system is not to underestimate the importance of that system. Although every effort should be made to weed out the defects and infirmities of the system and to improve it with a view to make it responsive to the people's needs, we must guard against saying anything which might have the effect of undermining the basic and broad confidence of the people in the judiciary. It has to be borne in mind that there is vast difference between constructive and informed criticism and misleading statements and insults which are sometimes hurled. The stake of the public at large in this matter is tremendous. A respected and independent judiciary and a respected and strong bar are indispensable if we want to maintain our system of freedom under law. There is no office, it has been said, which is so infinitely powerful and, at the same time, so frightfully defenceless as that of a judge. We have also to bear in mind that human failure of a few individuals cannot be equated to the failure of the system. The contribution of the judicial system towards the evolution of an orderly society is a fact of history. Rule of law is essentially linked with the judicial system. It has accordingly been said that despite its inconsistencies, its crudities, its delays and its weaknesses, law still embodies so much of the results of that disposition as we can collectively impose. Without it we cannot live, only with it can we insure the future which, by right, is ours. The best of man's hopes are enmeshed in its success; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves. Man may be a little lower than the angels, he has not yet shanken off the brute and the brute within is apt to break loose on occasions. To curb and control that brute and to prevent the degeneration of society into a state of tooth and claw, we need the rule of law. We also need the rule of law for punishing all deviations and lapses from the code of conduct and standards of behaviour which the community, speaking through its representatives, has prescribed as the law of the land. Being human disputes are bound to arise amongst us. For the settlement of those disputes, we need guidelines in the form of laws, forums to redress the wrongs in the form of courts and advisers who could guide us in the affairs of law, who could represent us in the courts of law and in whom we could repose our confidence. The last but not the least is the role of the members of the Bar. If there are, indeed, three indispensable requisites for the rule of law, they are an independent judiciary, a strong and vigilant Bar and an enlightened public opinion. There cannot be a worse indication of the decay of the rule of law than a subservient judiciary a docile Bar and a society with a coarsened conscience. It is a mistake to suppose that the rule of law can be ensured by drafting well-worded codes. It would depend, in the long run, upon the way those codes are worked and, more essentially, upon the general attitude of the people and the personality of those who are concerned with the administration and enforcement of the rule of law. In the context of the rule of law, I cannot help referring to the words of learned Hand that it is not in books that the law can live, but in the consciousness of the profession as a whole. Judges, dressed with their brief authority, may seem to speak more finally, but it is only for the moment. In the end, they take their cues from the Bar and the legal institutions which slowly form the moulds. It is the bar which makes the statutes and fabricates the adjustments they express. The quality of the judgments delivered by the judges, in a great measure, reflects the industry and erudition of the counsel who argue the cases in which those. judgments are delivered. I wonder sometimes as to whether we really accord proper recognition and express our due gratitude to the members of the Bar for what we owe to them in important decisions.  While speaking to the members of the City Civil Courts Bar, I must not fail to stress the vital role of the trial courts. If an evaluation were made of the importance of the role of the different functionaries who play their part in the administration of justice, the top position would necessarily have to be assigned to the trial court judge. He is the key man in our judicial system, the most important and influential participant in the dispensation of justice. It is mostly with the trial judge rather than with the appellate judge that the members of the general public come in contact whether as parties or as witnesses. The image of the judiciary for the common man is projected by the trial court judges and this, in turn, depends upon their intellectual, moral and personal qualities.  There has, of late, been manifold increase in the number of civil and criminal cases and this increase has subjected the trial judges to extreme strains. The problems faced by the trial courts call for great qualities of head and heart.  Another misconception which also needs to be removed is that as ours is a government of laws and not of men, the personality of the trial judge makes no difference. Most of us who are. familiar with the functioning of the courts would bear out that the above notion is divorced from realities. A, trial judge's ability, efficiency, tact or the lack of them can make all the difference regarding the fate of cases handled by him. It has to be borne in mind that the work in a court of law is not purely mechanical. The cases do not always proceed on set lines. There is no limit to the variety of new situations which can arise in human relationship in the complex society of today. No courts and no judge made precedents can provide guidance nor can any fixed formula furnish solution in those situations. It is in such like situations for which there are no guidelines or precedents that the personal qualities and worth of a judge make themselves manifest, It is when the colours do not match, observed justice Cardozo, when the references in the index fail, when there is no decisive precedent that the serious business of the judge begins. Errors committed by the trial judge who is not of the right calibre can sometimes be so crucial that they can change the entire course of the trial and thus result in irreparable miscarriage of justice. Apart from that, a rectification of the error by the appellate court which must necessarily be after lapse of a long time, can hardly compensate for the mischief which resulted from the error committed by the trial judge.  The notion about the provisional nature of the trial court decisions being subject to correction in appeal, or what has been called the "upper court myth" ignores the realities of the situation. In spite of the right of appeal there are many cases in which appeals are not filed. This apart, the appellate courts having only the written record before them, are normally reluctant to interfere with the appraisement of evidence of witnesses by the trial judges who have had the advantage of looking at the demeanour of the witnesses. The appellate court, it has been said, operates in the partial vacuum of the printed record. A stenographic transcript fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the mere words signify. The best and most accurate record of oral testimony is like a dehydrated peach, it has neither the substance nor the flavour of the peach before it was dried.  Nowhere, it has been said, in the whole range of public office are weaknesses of character, intellect, or psychic constitution revealed more mercilessly than in the discharge of the responsibilities of a trial judge. The advocates engaged by the rival parties fight tenaciously to protect the interest of their clients. No one can preside effectively over such a situation if he is mediocre in intellect or professional skill, lacking in decisiveness, or is otherwise not emotionally stable. The court-room decorum, it has been observed, has to be maintained with a firm hand if cases are to be tried fairly and expeditiously. As the case proceeds, the trial judge is called upon to make many rulings and pass interlocutory orders which are of great strategic and tactical importance for the ultimate decision of the case. These rulings have to be given and orders made under the pressure of the trial and without opportunity for elaborate arguments. The trial judge, it has been said by the American writer H. W. Jones, who is shaky in professional understanding, imperfect, in moral resolution, or unduly conciliatory in personality will inevitably be overpowered and overborne by forceful and aggressive trial counsel. The evil that weak judges do, less often from partiality, as commonly supposed, than from simple psychic inability to stand up to abrasive or strong willed leaders of the trial bar is a bitter but largely untold story in the administration of justice. Other shortcomings which sometimes mar the proceedings in a court of law and leave a bad taste with litigants and witnesses are the short temper, peevish nature, irascible disposition, overbearing manners and undue impatience of a trial judge. Proper and fair trial requires not only professional competence, it also needs cool temperament, mental firmness and capacity for remaining unruffled despite the provocation given and the stress and strain caused by the unscrupulous conduct of those who appear during the course of the trial. If, as observed by Roscoe Pound, men count, more than machinery in administration of justice, it is imperative that they should be men of right calibre.  There has been, in recent years, manifold increase in the functions of the members of the Bar in India as also in other parts of the world. This calls for an awareness of fresh responsibilities. We need good cheer and resolute hearts to meet the new challenge. I have no doubt that with its great past and rich traditions, the Bar would prove equal to the task. I have also no doubt that the Bar has a bright future.

Author Name: Hon’ble Justice H. R. Khanna