" Judicial Reform Conducive for Common Citizen" is a broad subject set out and proposed for discussion. It is based on the accepted theory that " Rule of Law " can be used as a weapon for obtaining social justice.
In order to bring about peace and progress of the society, law is the basis. Law is therefore the instrument for delivery of justice. Those who are enacting laws and those who are instrumental for administration of justice derive power from the constitution, which assures to constitute India into a Sovereign Socialist Secular Democratic Republic.
Judicial Reform Conducive for common citizen requires the Reform or Restructure of the Existing Laws and also reformation of the Judicial System. If law-makers are callous and indifferent to protect the common citizen, the Judiciary can never promote social justice. It is equally true that the judiciary who is the custodian of justice is required to be capable of interpreting and applying the law to protect the citizen from being exploited because of their ignorance and poverty.
Once Mahatma Gandhi said that one can infer that a country is sick if it has too many laws. In our country, the Parliament and the State Legislatures are enacting laws, some are new and some are by way of amendment or replacement of the existing laws. We have now reached a situation that the law-makers, the lawyers and even the judges are ignorant of the existence or the progress (?) of law though they are in the Books and searched out when its necessity is felt. Can a common citizen be expected to know the law in this state of affairs? The maxim often said that every citizen is presumed to know the law is therefore a fallacy.
The language and expressions used in a statute at times become so complex and capable of different interpretations that it is impossible for a common citizen to understand and be aware of the correct interpretation. Different High Courts of India and the Apex Court have been found on many occasions to interpret the provisions of a statute differently, which can be said to be the enforceable interpretation at a given time, but it cannot be said to be final. The process is still continuing and there are many gray fields yet to be correctly understood.
In India, the majority of citizens are illiterate and those who are literate or now being declared to be literate are capable of writing their names knowingly or unknowingly. Our laws are in a foreign language, which is unknown to some of out legislators and majority of citizens. They are incapable to understand the law if explained. A law published in the Official Gazette becomes effective from the date of its publication unless it is otherwise provided in the statute. I have come across cases where the Gazette has been printed after the declared date of its publication. The common citizen is the victim and none shoulders the responsibility of this casuality. Common citizen does not know anything about the laws of the country and those who can be said to be enlightened persons know how to overreach or get over the provisions of law to their advantage. My personal opinion is that in the name of providing speedy remedy, injustice is being legalized by some new enactments.
Coming to the Judiciary, it is a common knowledge that the pendency of cases in different courts is increasing every day. Out of the main factor contributing to this situation is inadequate number of judges in all levels. The present number of judges is no match to the growth of population and added problems because of new areas associated with the growing consciousness, civilization and dynamic changes of the society. Those who have come to courts with the hope of getting justice are tired of waiting. In one of the seminars organized for advancing legal aid programmes which was attended only by judges of different High Courts and the Supreme Court, one of the eminent judges who was then the Chief Justice of one of our neighboring States in his speech expressed that no useful purpose would be served by making the people conscious of their constitutional and legal rights or by helping them financially or otherwise to reach the law courts because the net result would be to invite more people to sit in the corridors of the courts. Incidentally he told that if by any law no new cases are entertained for ten years, the courts would not be able to dispose of the cases which are pending for years. Justice is becoming more and more expensive day by day. A common man cannot afford to reach the court and if somehow he becomes able to institute a case, he may not be able to pursue it till its end. I have come across cases, where the lawyers who filed the case were somehow affordable or approachable at the stage of institution but years after they are either not available or the expense required to avail their services is beyond the financial capacity of the litigants.
By enhancing the number of judges from top to bottom alone may not solve the problem unless the judges are knowledgeable and have a sense of justice. Disposal of a case and dispensing justice are not the same thing. Mere disposal without deciding the questions of law involved give rise to multiplicity of litigation.
Lord Denning has explained the proper role of a judge thus:
" My root belief is that proper role of a judge is to do justice between the parties before him. If there is any rule of law, which impairs the doing of justice, then it is the province of the judge to do all, he legitimately can do to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for the legislature to intervene because that can never be of any help in the instant case. I would emphasize, however, the word "legitimately" the judge is himself subject to the law and must abide by it. "
Clement Atlee said:
" If a free society cannot help the many who are poor, it cannot serve the few who are rich. "
A complete harmony between law and justice would bring about the purity and neutrality of the judiciary and establish the supremacy of the " Rule of Law ".
Purna Chandra Mishra
Retd. Justice Orissa High Court