Counsel for the Indian Judiciary

Counsel for the Indian Judiciary

Ensure fundamental rights, through every means available; the rest will follow on its own

The Indian judiciary is overburdened with pending cases while the wheels of justice move at a snail’s pace. There are ways, however, to improve the largest judiciary in the world.
One thing that continues to plague the judicial system is the overwhelming number of cases at almost every level of the judiciary. According to Jaya Jaitly, former president of the Samata Party, the over 3.1 crore cases are pending in the lower courts (83 lakh pending for over 10 years), 44 lakh in the high courts (32 lakh pending for over 10 years), and 60,000 cases in the Supreme Court (the figures are as of 2019). Prisons are filled with capacity up to 114 per cent, of which two-thirds are undertrials who have had no justice at all. These figures clearly show the sorry state of affairs vis-à-vis our judiciary.
Empowering subordinate courts with writs
While the overall scenario of the judicial system appears highly worrisome, there is still hope. The Constitution of India allows citizens under Article 32 (Right to Constitutional Remedies) to move the courts seeking enforcement of their fundamental rights. This provision empowers the Supreme Court to enforce the fundamental rights by issuing directions, orders and, most importantly, writs, such as habeas corpus, mandamus, etc. The power to enforce the fundamental rights for citizens is also vested with the high courts in various states under Article 226.
However, one serious drawback of this provision is that while the Constitution allows the power of issuing writs for enforcing fundamental rights of citizens and aliens alike to all courts, the Parliament has in its more seventy years of functioning not passed any Act empowering the subordinate courts to issue writs, orders and directions to enforce fundamental rights. It is high time that the Union government immediately brings in an ordinance given the fact that there is going to be no winter session of Parliament this year. This step will go a long way in empowering the subordinate courts to issue writs to enforce fundamental rights.
This step will have a multidimensional impact- firstly, it will help in reducing the burden of the high court and Supreme courts which can devote its wisdom and resources to deal with cases of national concern or of institutional, financial importance, Secondly, like minded citizens and PIL activists can now find it more convenient to file petitions and PIL in the lower courts to help aggrieved citizens get justice. Thirdly, technology can be harnessed effectively to ensure time bound and faster disposal of cases concerning the fundamental rights of citizens, the pandemic will accentuate the adoption of technology for ensuring that the judicial system our country can reduce the gargantuan burden of cases.
Special courts for
fundamental rights
To ensure that the subordinate courts in India are not overburdened with this additional responsibility, it is imperative that the Union cabinet takes immediate initiative in this regard. It can directly ask the Law and Justice ministry to look into the issue of setting up through an ordinance special courts that will deal with cases concerned exclusively with the fundamental rights of citizens and aliens alike. The Law and Justice ministry in consultation with the Supreme Court Bar Association and as far as possible with the Bar associations of the high courts must publish a white paper containing suggestions regarding the feasibility of setting up courts and advise the government as such.
The union government based on the suggestions of legal experts and the law and justice ministry must through multiple ordinances set up special courts across the country, their sole purpose of which will be look into cases concerning the fundamental rights of citizens and not looking into any other case. The government can allocate funds from the consolidated fund of the country to set up such courts. The union government can bring in a constitutional amendment in the next session of Parliament to institutionalise the existence of courts and give them a constitutional status. Adequate awareness campaigns must be undertaken by the state governments to make the citizens aware of this new facility to ensure the redress of their grievances. The union and state governments must join hands to jointly bolster the efficiency of our judicial system. This will become a shining of cooperative federalism which the NDA government emphasises so much upon.
As the pandemic has accentuated judicial inequity, it is high time that the responsible citizens of the country join hands and help their fellow citizens get justice. The union government can follow the above steps to somehow reduce the burden of cases in the judiciary and ensure that the judicial system can redeem its original glory, because as Benjamin Franklin said, “Justice will not be served until those who are unaffected are as outraged as those who are.”

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