By: Aman Rai of Rajiv Gandhi National University of Law, Patiala and Swati Singh of Chaudhary Charan Singh University, Meerut, Uttar Pradesh
INTRODUCTION
The Indian Constitution ensures that all people are treated equally in the eyes of the law. But in reality, people confront significant dangers to their lives, their property, and their religious beliefs, and millions of people in our country rely on the law to safeguard their rights on a daily basis and injustice is widespread across the country, and the oppressed are unable to seek justice because they face the weight of a flawed system on several levels.
The root cause of this could be some acts that were created prior to our country’s independence, and unfortunately, these acts are still in effect and control the Indian legal system today.
The need of the hour is the Indianization of the judicial delivery system. So Indianization hereby means adapting to the circumstances of our society and localising our justice delivery systems.
Here are some archaic laws that are still in practice in Indian judicial system:-
SEDITION ACT
The Sedition Act was first introduced in 1835 and was legally made into a criminal offence in 1870. Sedition can be defined as “words or speech that brings or seeks to bring into hate or contempt, or stimulates or attempts to arouse disaffection against the government are illegal under Section 124A of the IPC.”
A simple reading of the provision reveals that components of the offence are imprecise and overbroad, prone to subjective interpretations, and provide no guidance to the public, law enforcement officers, and the judiciary about what behaviour is banned.
It’s a colonial statute. Its purpose was to stifle the independence movement. The British used the same rule to suppress Mahatma Gandhi, Tilak, and others.
Sedition is an antiquated, repressive colonial rule that elevates the government to a sacred status and attempts to turn us into loyal, unthinking vassals. It has no place in a democratic society and should be eliminated.
COMPLEX LEGAL LANGUAGE
The majority of legal disputes are caused by the language employed in the laws.
- If laws are written in a more straightforward manner, the amount of tax-related lawsuits filed in court will likely decrease.
- Our justice delivery systems must adapt to the actual realities of our society and be localised. Parties from a rural area, for example, who are involved in a family conflict, are sometimes made to feel out of place in the courtroom.
- They are unable to comprehend the arguments or pleas, which are generally written in English, a foreign language to them. Judgments have gotten more long in recent years, significantly complicating the situation of plaintiffs. The parties are compelled to spend more money in order to comprehend the consequences of a judgement.
- Parties from rural areas who are involved in a family conflict are sometimes made to feel out of place in court. They are unable to comprehend the arguments or pleas, which are generally written in English, a foreign language to them.
Using Local Languages in Courts: One approach to make the entire judicial system more intelligible to the average person is to utilise local languages in court.
- Using local language in court allows the ordinary man to better comprehend his rights, the laws that have been enacted.
- Local languages are already permitted in the courtroom up to the district level. Some of the high courts operate in the local languages as well.
THE COLONIAL PSYCHE
The British Colonial Empire safeguarded its citizens only in exchange for surrendering up their rights to their rulers, based on Thomas Hobbes’ theory of sovereign absolutism. To put it another way, justice could not be demanded, but it might be granted by the state as a compromise.
This is in contrast to old Indian institutions, where the ability to seek justice was a built-in idea. Instead of this method, the colonial mindset leftover from British Imperial control may be seen in the way pleadings are written in court, the way the Court is addressed, and, most significantly, the Court’s accessibility.
In the most modest terms, justice is begged for, not demanded. Judges are still referred to as Lordships and Ladyships.
The average petitioner, as was the case with the Privy Council during British colonial authority, is frequently unable to afford the costs of pursuing action in faraway Higher Courts. Furthermore, judges are rendered impotent by the growing backlog of cases, even if they wish to assist regular litigants.
TRANSPARENCY AND ACCOUNTABILITY
Under the RTI Act, any Indian person may seek information from a “public authority” (a government entity or “state instrumentality”), which is expected to respond promptly or within thirty days.
Every public entity is also required by the Act to computerise its records for wide distribution and to proactively disclose certain categories of data so that citizens only need to make formal requests for information.
The Right to Information Act exempts the judiciary from its provisions. In the last several years, we’ve seen a decline in the honesty and dignity of judges.
Favouritism, nepotism, corruption, and bribery have gradually found their way into the legal system, where they are shielded by the weapons of contempt of court and unaccountability. Our constitution’s architects established constitutional jurisprudence for our judicial authority, but accountability legislation was not crafted with a sense of principle pragmatism in mind.
As a result, the majority of judge-inflicted wrongdoings go unnoticed and unpunished.
The right to know is part of the Constitution’s guarantee of freedom of speech and expression, yet the current system violates this basic right. Individual rights to education have become commonplace, and legal judgments have backed them up.
Judgments have gotten longer in recent years, significantly complicating the situation of plaintiffs. The parties are obliged to spend more money in order to comprehend the ramifications of a ruling. Because litigants are the ultimate beneficiaries, the courts should be litigant-centric.
The streamlining of the legal system should be a top priority for us. It is critical to improving the transparency, accessibility, and effectiveness of the judicial system. Access to justice is frequently hampered by procedural hurdles.
The average person should not be afraid to approach the courts and authorities. He should not be afraid of the judges or the court when approaching it. He should be able to tell it like it is.
It is the responsibility of attorneys and judges to establish a welcoming atmosphere for litigants and other parties. The use of alternative conflict resolution mechanisms such as conciliation and mediation would help to reduce conflict between parties while also saving money.
This also decreases the time it takes to reach a decision and the need for long debates and rulings.
INEFFICIENCY IN FREE LEGAL AID
Article 39 (A)
§ Article 39 (A) of the Constitution mandates the state to guarantee that the legal system operates in a way that promotes justice on an equal footing and, in particular, to offer free legal assistance by appropriate legislation, programs, or other means.
The first conception of legal aid comes as a measure to effectively control the Indian populace by restoring their faith in the justice system, but the free legal aid has proven to be ineffective in India as:
- o High Case Backlog: The overall backlog of cases in India’s various courts, at various levels, totals around 3.7 crores, raising the demand for a better and more efficient judicial system.
- o India is a nation with a population of even more than 135 million people and only about 25000 judges.
In the high courts, over 400 positions (40 per cent) are empty.
o In the lower judiciary, around 35% of the positions are empty.
- Procedural Delays: The courts frequently grant lawyers adjournments, resulting in needless delays in justice.
- The judicial recruitment process is being held up owing to a delay in the collegium’s recommendations for the upper judiciary. Delay in recruitment made by the state commission/high courts for lower judiciary is also a cause of the poor judicial system.
Judge to Population Ratio: The country’s judge-to-population ratio is not particularly high.
- While there is an improvement over the previous level of 12 judges per million people, it still falls well short of an inexpensive legal system.
- Recruiting Delays: Judicial positions are not being filled as quickly as they should be.
- The Supreme Court, on the other hand, does not have many vacancies. There are 34 in all, with only 2-3 opening.
- Procedural Delays: The courts frequently grant lawyers adjournments, resulting in needless delays in justice.
The judicial recruitment process is being held up owing to a delay in the collegium’s recommendations for the upper judiciary. Delay in recruitment made by the state commission/high courts for lower judiciary is also a cause of the poor judicial system.
LESS REPRESENTATION OF WOMEN IN HIGHER JUDICIARY
Even after 75 years of independence, India’s Supreme Court bench has only 11 percent female representation. Women are yet to be welcomed into the legal professions with open arms. The majority of female attorneys experienced discrimination in the legal profession and faced substantial obstacles even when they rose to the top. In court complexes, women lacked basic facilities.
CONCLUSION
These acts which have been existing since the colonial rule in India, are hampering the procedures and rules in the Indian judiciary. There are some suggested solutions to these acts and procedures, which when executed, these strategic foundations may alter the way India seeks and delivers justice:
The first step in combating all types of injustice is to understand the system. As a result, making laws more accessible and understandable is important for legal empowerment, as individuals need to know when their rights are being infringed and what legal choices they have.
Providing high-quality, inexpensive legal assistance to all people, regardless of their economic or social circumstances, so that they have a good chance of getting a fair trial.
The act of sedition which was enacted in the colonial rule was to suppress the national leaders who fought for independence but now such rule can be misused by the government and can violate the rights of expression of citizens.
Indian society has been different from western culture, hence using English as a language in proceedings of courts could be difficult to understand to the people who are not familiar with this foreign language. Similarly, the Indian judicial system mandates that the ability to seek justice is a built-in idea. Concise and timely judgements in a familiar language are required for the effective delivery of justice.
It is the need of the hour to rectify the patriarchal attitude and provide more representation to deserving female attorneys and district judges for elevation. Women must be included in all judicial changes in order for them to be effective.
