For rule of law two things are very necessary. First adequately swift delivery of justice and second putting law above the self interest when there ia conflict between the two.Indian judiciary have great reputation. Still there are many problems, some of them are addressed but we require that 'scale' that can assure people to go into courts. There is popular saying in Marathi शहाण्याने कोर्टाची पायरी चढू नये' - that means wise people should avoid courts. Even when many a people are reluctant to file cases , amount of pending cases is starkly huge. What if people trust more than they trust now? How much cases will be added further? But people are also reluctant as cases take years to give final verdict.
In Hindi movies of 60s -70s to 90s there were always nexus between villain and lawyers or sometimes lawyer himself was a villain. And this villain is not any bandit or daku but a rich smuggler.Many a movies have such a plot or sub-plots. Nowadays also we see any affluent criminal can get away with a bail.I don't understand this concept of bail? Isn't it a legalized bribe? And what message that gives ...if you can pay you can get away with many bailable crimes and lawyer will try to prove that crime committed by his client have committed bailable offence. While there are many pending cases where chances are that accused will be released after verdict but he/she is still in prison as he /she can't pay for bail.Our judiciary always pronounce that it is okay if hundred criminals go unpunished but one innocent should not be punished at any cost. But you can observe criminals are paying bail and a lot of innocents are in jail.
So judiciary need to sort out cases where accused is confined and case is yet to yeild any result. Advancement in technology can help and is helping judiciary right now as some steps are taken we have
Also we have article 39a in the constitution which guides State to ensure free legal aid , compliance of which ensure right to equality is accessible to poor as well (Article 14-18, specifically article 14 here - equality before law and equal protection of laws). So in accordance with these provisions we have NALSA( National Legal Services Aithority) since 1987 ( and statutory[law effective from]since 1995).We have Lok Adalats and different committees upto Taluka level that help in provision of free legal aid. Also we have some NGOs that help poor & downtrodden. But still we as a common person do not hear much about it.With due respect that only means either Govt.or NGOs they are not doing enough. Like before 1990s despite all the provisions and powers Election Commission was not taken seriously at all. One righteous person ( T.N.Sheshan in this case) changed the complexion of this electoral system . Ideally , it is basic principle that there should be separation of power , should not concentrate too much power in single authority. But I don't think Chief Election Commissioner was too powerful, he was just doing his duty. So this decision of appending two more election commissioner apparently appears as following administrative principles or practices, in reality exists now because Chief Election Commissioner became cumbersome for politicians. That also raises one question if persons of higher echelons cannot become just back then ( & now also) how we could expect ' just society' that we dream of in the preamble {JUSTICE Social, Economical and Political}. If somebody is doing right thing, clip his wings and justify your act with academic jargon that has been done so many times , the case of Election Commission being one representative example. So there are a lot many organizations that only interact with some stakeholders .And those from people are not stakeholders are not concerned and don't know anything . And not much comes in public domain, Media ( शोध पत्रकारिता!!!) is only interested in Drama , as if they can't see corruption happening( you don't need 'sting operations' , firstly 'courage' and secondly 'camera' is sufficient :-)). So as only part of the people are stakeholders in some organization or authority and they are mostly passive so such organizations or authorities are not much accessible to general public.What exactly is happening there? Are people working there or not who knows? So not just upright but courageous people are needed at the right place.Because many a upright people over a time become disinterested and remain in their cocoon ' at least I am upright' and become mute spectator. So system also do not change at expected pace. Systemic changes and ethics are intertwined, one cannot happen without others existence.Point is that a lot needs to be done to speed up justice delivery.
So as we mentioned above 60s and 70s movie, we had a brief period of committed Judiciary ( not exactly villain, but not that independent ) under Indira Gandhi years. Now recently movies like कायद्याचं बोला, Jolly LLB both parts 1 & 2, कोर्ट have addressed some of the issues. Especially we need to improve subordinate courts a lot more. If justice is done at the first instance there will be less cases at higher level. Of course we have right to appeal but worrying fact is not number of appeals but proportion of decision being reversed at higher level. That raises questions about error of judgement, workings of lower judiciary. Higher judiciary is much in public discourse ( why we have this tendency-- when we could consolidate agriculture solidly, we spent on Heavy Industries; When we need to consolidate Primary Education we spent more on Higher Education....why we don't consolidate base first, fortunately base here is not of real building so we don't need reconstruction at this level only need restructuring of priorities and balancing them).Recently Supreme Court directed about raising facilities at subordinate court. But states need to step up as positions in subordinate judiciary are filled by respective states. So each state should review ( if there is actually) and improve training and performance appraisal with the help of courts.
We can observe judiciary is often charged of judicial overreach. In some cases it is true, but if we observe Judiciary always intervened in Public interest and these instances are not too many. Sometimes we use terms ' judicial activism' and ' judicial overreach' synonymously. But I don't see them as such. When Judiciary is doing it's duty diligently , it automatically reflects activism.It was due to policy paralysis a few years back this activism looked more visible.With S.H. Kapadia as chief justice there were many landmark judgements which came to conclusion after so many years. And under chief Justice R.M.Lodha for the first time in Indian History judges heared the cases in vacation period. Use of technology and recent decision of going live etc. only show that there are effort to improve.Also Parliament for the first time thought of scrapping the irrelevant laws , a departure from as usual adding more and more legislations. Simplification of procedure, removing ambiguities in legislation , classifying legislations and improving them can certainly reduce cases where one of the party in the petition is government itself. And number of cases are added just because there is conflict between 'letter' and 'Spirit'. Some common sense and such cases can be avoided or at best resolved through arbitration.Problem is that if subordinate applies his 'common sense' , boss scolds him, he too have boss above him and there is too much emphasis on letter. Also there is a question that which exemption is okay and which is not, that is also dicey area, so tendency of risk avoidance is normal.Is it that difficult to invoke ' in good faith'? Maybe not, as people don't think twice while sneaking into illegal activities, why should one think and not decide for perfectly right reasons and activities. And if everybody takes his own responsibility there would be less legislations.
Like Marx says religion is the opium of the people.(yes, religion has something to do with our primeval identities,roots so one may not agree with him , but it is one perspective to look at things).Sometimes I feel, even laws are the opiate of massess. As elite always think themselves above the law. Poor people don't know much of the rules. So middle class is the most law abiding one. I often think Engels and Marx are unduly harsh on middle class. Yes, middle class can see elites and tries to behave like them. So they try to bend the laws like elites do .That is why it is even felt by poors that you can become rich only by following corrupt ways.But look once found guilty can you pay for bail? So even if it may attract for possible advantages we must be ready to face all possible consequences that is why it is advantageous to be ethical. So then we should allow those bad elites ( all rich people may not be bad or that bad ..as nobody is perfect and many become rich through hardwork ...problem is we often ignore process and only see results) to make merry? We actually allow them and see if their grace fall on us :) . And then trouble others that so and so have photo with me, so and so is my relative, what are you without this so and so.That is where comes the point - how you want to recognize yourself? That is our journey to bring revolution otherwise take selfies and don't pass the buck, system is not changing enough because of you.
P.S.
We are fairly fairly just society. And we need to be just fairly just society.Then Justice social, economical and political will be achieved. Political democracy is vibrant , problems in it can be tackled when we work for socio-economic democracy. We will see next sunday.
P.P.S.
Fully aware these writings are not solutions in themselves. But they are blueprint, as tremendous work is needed on the ground. And we shall do it. I am preparing myself for that. So don't worry :)
So as we mentioned above 60s and 70s movie, we had a brief period of committed Judiciary ( not exactly villain, but not that independent ) under Indira Gandhi years. Now recently movies like कायद्याचं बोला, Jolly LLB both parts 1 & 2, कोर्ट have addressed some of the issues. Especially we need to improve subordinate courts a lot more. If justice is done at the first instance there will be less cases at higher level. Of course we have right to appeal but worrying fact is not number of appeals but proportion of decision being reversed at higher level. That raises questions about error of judgement, workings of lower judiciary. Higher judiciary is much in public discourse ( why we have this tendency-- when we could consolidate agriculture solidly, we spent on Heavy Industries; When we need to consolidate Primary Education we spent more on Higher Education....why we don't consolidate base first, fortunately base here is not of real building so we don't need reconstruction at this level only need restructuring of priorities and balancing them).Recently Supreme Court directed about raising facilities at subordinate court. But states need to step up as positions in subordinate judiciary are filled by respective states. So each state should review ( if there is actually) and improve training and performance appraisal with the help of courts.
We can observe judiciary is often charged of judicial overreach. In some cases it is true, but if we observe Judiciary always intervened in Public interest and these instances are not too many. Sometimes we use terms ' judicial activism' and ' judicial overreach' synonymously. But I don't see them as such. When Judiciary is doing it's duty diligently , it automatically reflects activism.It was due to policy paralysis a few years back this activism looked more visible.With S.H. Kapadia as chief justice there were many landmark judgements which came to conclusion after so many years. And under chief Justice R.M.Lodha for the first time in Indian History judges heared the cases in vacation period. Use of technology and recent decision of going live etc. only show that there are effort to improve.Also Parliament for the first time thought of scrapping the irrelevant laws , a departure from as usual adding more and more legislations. Simplification of procedure, removing ambiguities in legislation , classifying legislations and improving them can certainly reduce cases where one of the party in the petition is government itself. And number of cases are added just because there is conflict between 'letter' and 'Spirit'. Some common sense and such cases can be avoided or at best resolved through arbitration.Problem is that if subordinate applies his 'common sense' , boss scolds him, he too have boss above him and there is too much emphasis on letter. Also there is a question that which exemption is okay and which is not, that is also dicey area, so tendency of risk avoidance is normal.Is it that difficult to invoke ' in good faith'? Maybe not, as people don't think twice while sneaking into illegal activities, why should one think and not decide for perfectly right reasons and activities. And if everybody takes his own responsibility there would be less legislations.
Like Marx says religion is the opium of the people.(yes, religion has something to do with our primeval identities,roots so one may not agree with him , but it is one perspective to look at things).Sometimes I feel, even laws are the opiate of massess. As elite always think themselves above the law. Poor people don't know much of the rules. So middle class is the most law abiding one. I often think Engels and Marx are unduly harsh on middle class. Yes, middle class can see elites and tries to behave like them. So they try to bend the laws like elites do .That is why it is even felt by poors that you can become rich only by following corrupt ways.But look once found guilty can you pay for bail? So even if it may attract for possible advantages we must be ready to face all possible consequences that is why it is advantageous to be ethical. So then we should allow those bad elites ( all rich people may not be bad or that bad ..as nobody is perfect and many become rich through hardwork ...problem is we often ignore process and only see results) to make merry? We actually allow them and see if their grace fall on us :) . And then trouble others that so and so have photo with me, so and so is my relative, what are you without this so and so.That is where comes the point - how you want to recognize yourself? That is our journey to bring revolution otherwise take selfies and don't pass the buck, system is not changing enough because of you.
P.S.
We are fairly fairly just society. And we need to be just fairly just society.Then Justice social, economical and political will be achieved. Political democracy is vibrant , problems in it can be tackled when we work for socio-economic democracy. We will see next sunday.
P.P.S.
Fully aware these writings are not solutions in themselves. But they are blueprint, as tremendous work is needed on the ground. And we shall do it. I am preparing myself for that. So don't worry :)
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