JUSTICE DELIVERY SYSTEM

INTRODUCTION
The Preamble of the Constitution, which contains solemn affirmation of all the ideals and
aspirations for which the country has struggled during the British regime, declares: WE, THE
PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economical and political. The Preamble contains a noble and grand vision
kept by the framers of the Constitution. The spirit and ideology to ensure justice is sufficiently
crystallized in the Preamble. “The Constitution should be read and interpreted in the light of
grand and noble vision expressed in Preamble.” 1 In the light of the text of the Preamble and the
apex court’s words every person has the fundamental right to seek justice. The term ‘justice’ is
not defined in the constitution.

According to Ernst Banker –

“Justice is a term of synthesis. It is the final Principal which

comforts the general distribution of rights and the various principles of their distribution.”

Equity, justice and good conscience are the basic principles on which rules and regulations are
made by the society. For the effective society participation of each and every individual is must
and participation of every member of society is not possible without fair play and Justice to each
and every individual. No one can deny this fact that without the concept of Justice the existence
of society is not possible.

Justice is a system of law in which every person receives his or her due from the system,
including all rights, both natural and legal. An act or conduct of a person is said to be just if it
promotes the genera; well being of the community. A just act yielding well being of community
is called justice. Justice is not given. It is taken. The meaning of this sentence that justice is not
given, it is something to be achieved is that one must be conscious about his rights and he must
1
Kesavananda Bharati V. State Of Kerala, AIR 1973
be vigilant about his rights and duties. Justice is harmonious reconciliation in the society
between the interests of general public against the interest of an individual. There is always a
conflict between the Individual conduct against the general welfare of the society. So, to achieve
the justice the act of individual is differentiated between the just and unjust. Now question arises
what are those Acts which come under the definition of Just and what are those Acts which
comes under the definition of unjust Acts. Just acts are considered those acts which promotes
happiness promotes common good and on the other hand unjust acts are considered those acts
which promotes self interest and which acts against the general interest of the society. No one
can deny this fact that justice cannot be given; it is something to be achieved even in the welfare
of State as no one is going to deliver justice to the man who is himself not vigilant about his
interests.

According to ROSCOE POUND, “Justice is an Endeavour that achieves results”

The Term Justice and the acts of individual which are considered the just and unjust acts, they all
are not fixed and they change by time and by change in the Social conditions. So we can say that
these are ambiguous in meaning and changed by changing situation and the time.

Justice is a term derived from the Latin word “Justia” and Jus means truth, morality, rightness.
India is a welfare state and the welfare state has a responsibility to provide the justice to the
members of the society and we can divide the concept of justice in the two types. First,
Distributive Justice and we can explain it as the economic, political and social frame work of
each society is a result of benefits given by the society. These are the result of human political
process. Distributive justice is a fair and just distribution of social primary goods such as right,
liberty, income, wealth. Distributive justice is an idea of fair share and it is related to the word of
Sanskrit that means realized justice. Now question arises that what is the meaning of realized
justice. So, the meaning of this is that what is the actual consequence of the law in society
Distributive justice is concern about the fare distribution of assets among the members who are
living in the society.

J.k. Lieberman while commenting on the litigation frenzy Americans said, “Ours is a law
drenched age. Because we are constantly inventing new and better ways of bumping into one
another, we seek an orderly means of dulling blows and repairing the damage.” These
observations squarely apply to India. The apex court taking cognizance of the situation then
spoke through justice Bhagwati; “although unlike American Constitution speedy trail is not
specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of
article 21 as interpreted in Maneka Gandhi’s case. No procedure, which does not ensure a
reasonable trial, can be regarded as, reasonable, fair or just”.2

For efficient functioning of any legal system in the country, the fundamental requisite is that
such system shall be built on the aspirations of the people, law or legal system. People always
turn to the judiciary in quest of justice. But, is our justice delivery system effective and efficient
to provide justice to the people? The Indian judicial process is now commonly associated with
inordinate delay. The entire court system is overburdened with cases and the slow disposal rate
of cases greatly hampers the quality of justice delivered. The reasons for delay are numerous and
stem from very layer of the justice system. There is a systemic failure to address the Issue of
efficiency of the judicial process. The problem lies not only in the lack of institutional facilities,
but also in the very mindset of the legal community.

The Apex court thus held that right to speedy trial is a fundamental right. In spite of this
recognition of speedy trial as a fundamental right repeatedly in many cases by the Apex court,
for various reasons, the pendency in the different courts in the country to pile up delaying of
justice. In a written statement to the Rajya Sabha, Minister of Justice and Law said over 5.02
crore cases were pending in various courts -- the Supreme Court, the 25 High courts and
subordinate courts.

Given the pervasive nature of the problem , which has now simply come to be accepted as
corollary of the justice system , a range of reform is required legal institutional and technical.
This has been widely noted among political and judicial circles.

It is not that the efforts are not done to improve the situation. Judiciary tried several measures to
reduce pendency, which include holding Lok Adalats, holding conciliation courts, directing
stoppage of proceedings etc. The legislature tried their way by framing new statute of arbitration,
by amending procedural laws, by establishing new courts etc. The Ministry of Law and Justice
launched the National Mission for Justice Delivery and Legal Reform s in 2011 with this very

2
AIR 1979 SC 1360.
goal in mind. Some measures towards legal reform have already been taken by the Parliament.
Amendment of the Negotiable Instruments Act, 1881, to reduce the enormous number of cheque
bounce cases and amendment of the Motor Vehicles Act, 1988, to reduce litigation related to
challans are being considered. However, these changes do not address the root cause of the
travails that plague the judicial system .

It has thus became necessary to search for the causes of delay and after diagnosis of the causes
suggest efficient remedies which will help judges, advocates, legislators and litigants compose a
vibrant justice delivery system , which will make the sense that speedy trail is a fundamental
right enshrined under Article 21 of the Constitution. The path is not so simple. The country
started its journey with a well researched Constitution, however somehow, at least in case of
justice delivery system, our condition became that of a person who forgets his direction when he
is half way through and stares desperately and bewilderly at the maize of the roads ahead of
him. As justice Krishna Iyer says, we reached a grim situation. He speaks; “The whole system is
in the intensive care unit and creative surgery without looking back to the musty precedents be
now tried.”3

While suggesting remedies we also have to keep in mind a proverb, “Justice hurried implies
justice buried”. Speedy disposal of cases should not be construed to mean that cases should be
disposed of quickly to the detriment of justice. Considering the situation it can be said that
primary responsibility will be on the judges to see that justice should be imparted quickly but at
the same time judiciously. At the same time, the lawyers should have to develop in them
professionalism, uprightness and technical abilities to handle computers and other electronic
gadgets. Above all the society has to develop a sense to coexist reducing the chance of
confrontation and thereby reducing the chances of litigation.

Along with it the society has to develop ways and means to settle the disputes and learn to utilize
its precious time for developing themselves and ultimately to mankind. No doubt this will take a
long time, but this new social order has to come in existence as a new era in the development of
the human society.

ADMINISTRATION OF JUSTICE
3
V.R. Krishna Iyer, Justice and beyond 53 (Deep & Deep Publications, 1st edn., 1980).
The administration of justice serves as the bedrock of any civilized society. It embodies the
principles of fairness, equity and the rule of law, ensuring that individuals’ rights are protected
and disputes are resolved in an orderly manner. Whether through the criminal justice system’s
pursuit of wrongdoers or the civil justice system’s provision of remedies to the injured, it plays a
pivotal role in maintaining social order and fostering trust in the legal framework.

Administration means management and justice means doing what is fair and right. When we talk
about the administration of justice, we are talking about how a government keeps things fair and
right within its borders by using its power to enforce the rules. To make sure justice is done, a
government needs to have the power to use force when necessary. There are two important
things every government must do:

1. Protect the country from enemies and

2. Keep things fair and right within its borders.

According to Salmond, a government is a group of people living in a specific area who are
organised to keep order and fairness by using force when needed. Governments make and
enforce laws to maintain peace and keep society safe. If a government can’t do this, it can’t
really be called a government. The main job of the administration of justice is to protect people’s
rights, make sure laws are followed and punish those who break the law.

Administration of justice refers to the system and processes through which laws are enforced and
disputes are resolved within a society. It encompasses the application of legal principles, the
investigation of alleged violations and the imposition of sanctions or remedies when individuals
or entities breach established rules and rights.

The administration of justice can be defined in three key points:

 A Politically Organised Society: This means that there is a structured government or

society in place to oversee and manage how things are done. It’s not a free-for-all; there
are rules and order.
 The Use of Government Force: The government has the authority and power to use
physical force when necessary to maintain order and ensure that people follow the rules
and laws.
  The Goal of Upholding Rights: The primary aim is to ensure that everyone’s rights are
protected and respected. It’s about making sure that people are treated fairly and justly
within the society.

Objectives of Administration of Justice

The primary objectives of the administration of justice are to maintain order, protect individual
rights, ensure fairness and uphold the rule of law. This multifaceted concept includes both
criminal and civil justice systems, with the former focusing on the punishment of offenders and
the latter on providing remedies and compensation to those who have suffered harm. A well-
functioning administration of justice is essential for promoting social harmony and resolving
conflicts within a community.

According to Hobbes “that a common power is necessary to keep people with in control in the
community. He says, unless man is under “a common power to keep them all in awe”

Origin and Growth of the Administration of Justice

It is human nature to want to live together in a community. We are social beings and this social
nature compels us to be part of a society. However, when people live together, their different
interests can sometimes lead to conflicts, which is why we need a system for administering
justice. In the early days, people would turn to their elders to settle disputes among them. This
marked the beginning of the development of human societies, progressing from simple, natural
communities to more complex and civilized ones. This progression is considered the historical
foundation for the evolution of systems to administer justice.

As the need for a formal system of justice became evident, the concept of the State was born. In
the beginning, these early forms of the State didn’t have the strength to effectively control crime
and punish wrongdoers. However, today, we have Magistrates and Judges who are responsible
for carrying out this essential function.

According to Hobbes, he believed that a common power, in the form of a government or

authority, is necessary to keep people in check within a community. He argued that without this
common power, individuals would be unrestrained and chaos could prevail. In his words, unless
people are under “a common power to keep them all in awe,” society will struggle to maintain
order.

Advantages of Administration of Justice

Uniformity and Consistency in Law - The administration of justice ensures that laws are
applied consistently and uniformly. This helps in the systematic development of the legal system,
making it fair and predictable.

Collective Wisdom - The rules of law are a reflection of the collective wisdom of the
community. Following these rules reduces the chances of making wrong decisions. As Sir
Edward Coke noted, the wisdom of the law surpasses any individual’s wisdom and justice
represents the wisdom of the entire community.

Consistent Application - With fixed rules in place, judges can apply the law consistently,
ensuring that similar cases are treated similarly.

Regulation of Conduct - When citizens know the law, they can regulate their behaviour
accordingly. This promotes a law-abiding society where people understand the boundaries and
consequences of their actions.

Disadvantages of Administration of Justice

Rigidity – Legal justice can be inflexible. Societal changes often occur more rapidly than
changes in legal systems, leading to situations where the law may not adequately address new
challenges.

Technicalities and Formalities –

Legal justice can be filled with technical jargon and formal procedures, making it complex and
difficult for ordinary citizens to navigate without legal assistance.
Complexity
Society is intricate and dynamic, requiring complex laws to address its evolving needs. This
complexity can sometimes lead to confusion and difficulties in interpretation and enforcement.

Unintended Consequences
While the law serves as a remedy for many problems, it can also have unintended negative
consequences, as noted by Salmond. Sometimes, the legal system itself can create new issues or
injustices.

Types of Administration of Justice

Criminal Administration of Justice

The administration of criminal justice deals with public wrongs, which are offences outlined in
the Indian Penal Code (IPC). Its primary aim is to punish offenders. Punishment, in this context,
refers to the imposition of consequences, typically considered undesirable (e.g., imprisonment or
death penalty), by the state authority upon individuals found legally guilty of committing a
crime. The primary objectives of criminal justice are to punish wrongdoers (offenders) and
maintain law and order in society. The state is responsible for punishing criminals. Punishment
serves various purposes, including deterring individuals from repeating crimes, expressing
society’s disapproval of antisocial behaviour and seeking to reform and rehabilitate offenders
while protecting society from criminal activity.

Both in civil and in criminal proceedings, there is a wrong (actual or threatened) complained of.
However, the Court will not enforce a right except as against a person who has already violated
it, or who has, at least, already shown an intention of doing so. Justice is administered only
against wrongdoers for involving in the act or intent. 4 Civil justice is concerned primarily with
the plaintiff and his rights whereas criminal justice is mainly concerned with the defendant and
his offences. The former provides to the plaintiff and the latter to the defendant, which they
deserve.5

4
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory 166 (Central Law Agency, Allahabad,
5th Edn., 2008).
5
Ibid.
In Ankur Sharma & Anr. v. State of H.P.6, the Himachal Pradesh High Court held that lawyers,
like judges, must also ensure that truth triumphs in the administration of justice. These
observations of the High Court came while disposing a criminal petition challenging the trial
Court order rejecting an application under Section 311 of the Code of Criminal Procedure, for
recalling/re-examination of one witness. The High Court observed that truth is the requirement of
any justice. The Court also remarked that in the administration of justice, Judges and Lawyers
play equal important roles.

Civil Administration of Justice

Civil Justice as above discussed, deals with the enforcement of rights. It is to be noticed here that
the right so enforced is either a Primary or a Sanctioning right. A sanctioning right is the one
which arises through the violation of another right. All others are primary rights. They exist for
their own sake, and not for the sake of other rights. They are rights which have some other
source than wrongs. Thus, right of an individual not to be libeled or assaulted is his primary right
whereas right to obtain pecuniary compensation from one, who has libeled or assaulted him is
sanctioning right. Right of an individual to have the fulfillment of a contract made with him is
his primary but right of an individual to have damages for its breach is his sanctioning right. 7

The administration of civil justice, therefore, falls into two parts and accordingly, the right
enforced belongs to the one or the other of these two classes. Sometimes, it is impossible for the
law to enforce the primary right, whereas, sometimes, it is possible but not expedient. For
example, if by negligence one destroy another man’s property, his right to such property is
necessarily extinct and no longer enforceable. Therefore, law provides him in substitution for it a
new and sanctioning right to receive from the wrong-doer the pecuniary value of the property
that he has lost. If on the other hand, one break a promise of marriage though it is still possible,
but it is certainly not expedient, that the law should specifically enforce it, and compel the
wrong-doer to enter into such marriage. It enforces instead a sanctioning right of pecuniary
satisfaction.

6
Cr. MMO No. 471/2018 HC.
7
John W. Salmond, Jurisprudence or the Theory of Law 86 (Stevenes and Haynes firm, London, Ist Edn.,
1902).
A sanctioning right almost invariably consists of a claim to receive money from the wrongdoer.
The enforcement of a primary right may be conveniently termed as Specific Enforcement but for
the enforcement of a sanctioning right, there is no very suitable generic term, however, though, it
can be called as sanctional enforcement. Examples of specific enforcement are proceedings
whereby a defendant is compelled to pay a debt, to perform a contract, to restore land or chattels
wrongfully taken or detained, to refrain from committing or continuing a trespass or nuisance, or
to repay money received by mistake or obtained by fraud.8

It pertains, therefore, to the civil administration of justice, no less than an ordinary claim for the
recovery of a debt. The mere fact that the sanctioning right, thus enforced, provides for
punishment, does not bring the action within the sphere of criminal justice. In order to call a
proceeding as criminal, it is necessary that its direct and immediate object is to give punishment;
its object is the enforcement of a right which has been created by way of punishment. A
proceeding is civil if it is one for the enforcement of a right, and the source, nature, and object of
the right so enforced are irrelevant.

For example, the principle of compensation requires that a defendant shall be liable, if because of
his act, damage is caused to the plaintiff, whether he did or did not intend such damage, and
whether he was or was not negligent in causing the same. However, the same principle demands
that a defendant shall be exempt from liability, if his act has not caused damage to the plaintiff,
however wrongful his intention may have been. The competing principle of punishment, on the
contrary, looks not to the actual result, but to the state of mind of the defendant, when he
committed the act complained of. He cannot be justly punished for the harm whatever he may

have caused unless he has been guilty of wrongful intention or negligence and if he has been so
guilty, he may be punished, whether, in the actual event, damage to another has caused or not.9

Modes of Administration of justice –

8
Id. at 87.
9
Id. at 91.
Basically there are mainly two modes of justice delivery system in India. First is the traditional
and second is the modern. But these modes further divide into various other sub-modes. Here are
the few modes that help in implementation of law and providing justice.

Traditional Modes

Traditional modes are those modes which are in tradition i.e. that govern the justice delivery
system from the ancient time. That can be king’s court, crown’s court or courts that govern the
judicial system in British period. At present, Indian justice system is run by such traditional
Courts i.e. the Supreme Court, the High Court, Subordinate Courts, tribunal or Panchayats. Let
us discuss them under the following headings:

Supreme Court

The Constitution of India provides that there shall be Supreme Court of India. The President of
India appoints the every judge of the Supreme Court. The judge must be a citizen of India and he
shall have been the judge of the High Court for at least 5 year or an advocate of High Court for at
least 10 years or is in the opinion of President is a notable jurist.10

The Supreme Court of India is a Court of record and it is vested all the powers of such a Court,
including the power to punish for the contempt of itself. 11 Writ jurisdiction is the other
jurisdiction that is provided to the Supreme Court as well as the High Courts for the enforcement
of Fundamental Rights. While exercising this jurisdiction, the Court may issue orders, directions,
or writs that include writs in the nature of mandamus, habeas corpus, quo - warranto, prohibition,
and certiorari. In distinction to the Supreme Court’s jurisdiction to issue writs, the High Courts,
are vested with much wider writ jurisdiction. The Supreme Court is basically a Court of appeal
and enjoys very vast powers in its appellate jurisdiction. Such Jurisdiction of the Supreme Court
can also be divided into four main categories i.e. Civil matters, Criminal matters, Constitutional
matters, and Special leave to appeal. The constitution also provides that whenever it appears to
the President that a question of law or a fact has arisen or is likely to arise and the question is of
such a type and is of such a public importance, that it is necessary to get the opinion of Supreme
10
The Constitution of India, art. 124.
11
The Constitution of India, art. 129.
Court on it, he may refer the question for the advisory opinion to the Supreme Court and the
Supreme Court may after such hearing as it thinks fit, may report to the President on its opinion
thereon.12

However, the constitution also confers original jurisdiction upon the Supreme Court. Article
131(1) confers on the Supreme Court exclusive Original Jurisdiction. It provides that the
Supreme Court shall have original jurisdiction, to the exclusion of any other Court, in a dispute
provided the following conditions are complied with. These are:

(a) The dispute must have arisen between the Government of India and one or more states or
between Government of India and any state or states on one side and one or more states on the
other side and between two or more states

(b) The Dispute must also involve a question based on law or fact on which the existence or
extent of any legal right depends.

The Supreme court has following jurisdiction:

(a) Original Jurisdiction - It has exclusive original jurisdiction over any dispute
between the Government of India and one or more States or between the Government of
India and any State or States on one side and one or more States on the other or between
two or more States, if and insofar as the dispute involves any question (whether of law or
of fact) on which the existence or extent of a legal right depends. In addition, Article 32
of the Constitution grants an extensive original jurisdiction to the Supreme Court in
regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders
or writs, including writs in the nature of habeas corpus, mandamus, Prohibition, Quo
warranto and certiorari to enforce them.

(b) Appellant Jurisdiction – The appellate jurisdiction of the Supreme Court can
be invoked by a certificate granted by the High Court concerned under Articles 132(1),
133(1) or 134 of the Constitution in respect of any judgment, decree or final order of a
High Court in both civil and criminal cases, involving substantial questions of law as to
12
The Constitution Of India, arts. 143.
 the interpretation of the Constitution. The Supreme Court can also grant special leave to
appeal from a judgment or order of any non-military Indian court. Parliament has the
power to enlarge the appellate jurisdiction of the Supreme Court and has exercised this
power in case of criminal appeals by enacting the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970.

Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies:
(a) that the case involves a substantial question of law of general importance, and (b) that, in
the opinion of the High Court, the said question needs to be decided by the Supreme Court.
In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal
reversed an order of acquittal of an accused person and sentenced him to death or to
imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial
before itself any case from any court subordinate to its authority and has in such trial
convicted the accused and sentenced him to death or to imprisonment for life or for a period
of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme
Court. Parliament is authorized to confer on the Supreme Court any further powers to
entertain and hear appeals from any judgment, final order or sentence in a criminal
proceeding of a High Court.

c) Advisory Jurisdiction –

The Supreme Court has special advisory jurisdiction in matters which may specifically be
referred to it by the President of India under Article 143 of the Constitution. There are
provisions for reference or appeal to this Court under Article 317(1) of the Constitution,
Section 257 of the Income Tax Act, 1961, Section 7(2) of the Monopolies and Restrictive
Trade Practices Act, 1969, Section 130-Aof the Customs Act, 1962, Section 35-H of the
Central Excises and Salt Act, 1944 and Section 82C of the Gold (Control) Act, 1968.
Appeals also lie to the Supreme Court under the Representation of the People Act, 1951,
Monopolies and Restrictive Trade Practices Act, 1969, Advocates Act, 1961, Contempt of
Courts Act, 1971, Customs Act, 1962, Central Excises and Salt Act, 1944, Enlargement of
Criminal Appellate Jurisdiction Act, 1970, Trial of Offences Relating to Transactions in
Securities Act, 1992, Terrorist and Disruptive Activities (Prevention) Act, 1987 and
 Consumer Protection Act, 1986. Election Petitions under Part III of the Presidential and Vice
Presidential Elections Act, 1952 are also filed directly in the Supreme Court.

Under Articles 129 and 142 of the Constitution, the Supreme Court has been vested with
power to punish for contempt of Court including the power to punish for contempt of itself.
In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to
Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may take action
(a) suo motto, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a
petition made by any person, and in the case of a criminal contempt with the consent in
writing of the Attorney General or the Solicitor General.

d) Transfer Petitions –

The Supreme Court has the power to transfer the cases from one High Court to another and
even from one District Court of a particular state to another District Court of the other state.
In such transfer cases the Hon’ble Supreme Court transfer only those cases if they really
lacks appropriate territorial jurisdiction and those cases which were otherwise supposed to be
filed under the transferred jurisdiction.

e) Epistolary Jurisdiction –

This jurisdiction has enabled the courts in India to treat a letter by a person or on behalf of an
aggrieved, telegram or article in the newspaper as writ petition. In Sunil Batra v. Delhi
Administration - the Supreme court accepted a letter written by a jail prisnors complaining
about the inhuman treatment being given by jail warden to another prisoners.

High Court –

The Constitution also provides that every State shall have a High Court operating within its
territorial jurisdiction.13 It is also the power of Parliament to establish a common High Court for
two or more States. For Instance, Punjab and Haryana have a common High Court. In India,

13
The Constitution Of India, art. 214.
neither the State executive nor the State Legislature has any power to control the High Courts,
after its Constitution and organization.14

The Constitution confers power on all the High Courts of India to issue to any person or
authority, including the government, any direction, order or writs including the writ in the nature
of mandamus, Habeas Corpus, prohibition, certiorari, and quo- warranto, for the enforcement of
any fundamental rights and any other legal right15. The High Court also has the supervisory
power over all Courts and tribunals within the territory in relation to which it exercises its
jurisdiction.16

Subordinate Courts

The structure and functions of sub-ordinate Courts are more or less uniform throughout the
country.17 Designation of Courts, connotes their functions. These Courts deal with all disputes of
civil or criminal nature as per the power conferred upon them. These Courts have been derived
principally from two important codes prescribing procedures i.e. the Civil Procedure Code and
the Criminal Procedure Code. As per the directions of the Supreme Court in the All India Judges
Association v. Union of India18, a uniform designation has been brought about in the sub-ordinate
judiciary’s judicial officers all over the country in Civil and Criminal matters.

The constitution of criminal courts is mentioned in Chapter-2 from section-6 to section-35 of

Criminal procedure code, 1973. The administration of criminal justice is carried out through
Magistrate- Courts and Sessions courts at the bottom and High court and Supreme court at the
top. The Court at the lowest level is called Judicial Magistrate of the second class. This Court is
competent to try the case if the offence is punishable with imprisonment for a term not exceeding
one year, or with fine not exceeding five thousand rupees, or with both. The First Class
Magistrate is competent to try offences punishable with imprisonment for a term not exceeding
three years or with fine upto ten thousand rupees. In India, the second and the First Class
Magistrate Courts have been unified. The Chief Judicial Magistrate can impose any fine and

14
The Constitution of India, art. 231.
15
The Constitution of India, art. 226.
16
The Constitution of India, art. 227.
17
The Constitution of India, arts. 233, 234, 235, 236.
18
AIR 1993 SC 2506
punishment upto seven years imprisonment. The Assistant Sessions Judge is competent to
impose punishments up to ten years imprisonment and any fine. The Sessions Judge can impose
any punishment authorized by law; but the sentence of death passed by him should be subject to
the confirmation by the High Court19.

Hierarchy of Civil and Criminal courts in India -

Panchayats

The Preamble to the Constitution of India declares that the source of authority under the
Constitution is the people of India. India is a ‘democratic state’. The term “democracy” in its
broadest sense includes political, social and economic democracy.

19
Criminal Procedure Code, 1973, ss. 28, 29.
Secondly, the policy stated in the Preamble by the framers of the Constitution of India, secures to
all the citizens of India social, economic and political justice. It also secures liberty of thought,
expression faith and worship and it also provide equality of status and opportunity to all. It also
promotes fraternity among the people of India, while assuring the dignity of the individual and
unity and integrity of nation. Although the expressions, ‘justice’, ‘liberty’, ‘equality’, and
‘fraternity’, may not be susceptible to exact definitions, yet they are not mere platitudes. They
are given content by the enacting provisions in the Constitution, particularly in Part III, which
deals with the fundamental rights and Part IV, which deals with the Directive Principles of State
20
.

Article 40 of Indian Constitution directs the States to take measures to organize village
panchayats and to provide power and authority that may be necessary to able them to function as
the units of self-governing government. The idea underlying this Constitutional provision is to
introduce democracy at the root level. This provision does not prescribe as to what powers
should be given to the panchayats or what their structure should be. In this way, the panchayat
laws may vary from one state to another. Article 40 does not give any guidelines for organizing
village panchayats. When Article 40 speaks of village panchayats as units of self- government, it
describes the organization of the lowest level units of self- governance in the hierarchy of
democratic, policy-making and administrative units.21

Tribunal

There are provisions under the Constitution of India which recognizes the existence and
importance of tribunals. Articles 136 and 227 expressly mention the word Tribunal. As per
Article 136 of Indian Constitution, the Supreme Court has extraordinary power to grant special
leave to appeal from any type of sentence, judgment, order, decree, or determination that is
passed or made by any Court or Tribunal within in the territory of India. Similarly, Article 227 of
Indian Constitution again mentions the word ‘Tribunal’. This provision provides that the High

20
J.N. Pandey, Constitution of India 30 (Central Law Agency, Allahabad, 37th Edn., 2001).
21
M.P. Jain, Indian Constitutional Law 1382 (LexisNexis Butterworth, Wadhwa, 5th Edn,. Reprint
2008).
Court also has a supervisory power over all Courts and Tribunals within the territory, in relation
to which it exercises its jurisdiction.22

Modern Modes

Along with the traditional modes, there are certain modern modes of justice delivery system that
provide speedier justice. Those modes are discussed in brief as follows:

Mediation

As a form of alternative dispute resolution mediation involves the act of a neutral third party who
is generally a retired judge or an experienced advocate to facilitate the settlement of disputes
between the two contending parties. It is different from arbitration in the sense that arbitration is
governed by the arbitration agreement and the arbitrator is nominated by disputing parties. The
mediator often asked the parties to present the views and claims in a joint sitting before meeting
them separately to explore the possibilities of settlement of the dispute. However, in contrast to
an arbitration award, the settlement arrived at the end of mediation does not have any binding
effect on the parties. The settlement made by the process of mediation is also not enforceable as
a decree of the Court whereas an arbitral award has the status and recognition as the decree
passed by a civil Court.23

Stressing on the need for utilization of Alternative Dispute Resolution system including
mediation etc. as means of settlement of disputes, the Supreme Court in Guru Nanak Foundation
v. Rattan Singh and Sons24, has observed that endless, tedious, complex and expensive Court
procedure compelled jurists to search a forum which is not only an alternative to the existing
judicial system but also casual, speedy and more effective to resolve the disputes of parties that
help in avoiding procedural technicalities and this was the reason that Arbitration Act, 1940 was
passed.

22
Dr. J.J.R. Upadhyaya, Administrative Law, Central Law Agency, Allahabad, IXth Ed. 2014, P.
139.
23
Id. at 431.

24
AIR 1981 SC 2073.
Arbitration

Arbitration as defined under the Arbitration &Conciliation Act, 1996 has the same meaning as
contained in Article 2(a) of the Model Law of UNCITRAL. 25 According to Byrne’s Law
dictionary the term arbitration includes practically every question, which might be decided by a
civil action referred to arbitration. Thus, under the English Law, arbitration means the settlement
of disputes by the decision of one or more persons that is called arbitrator. As Russel rightly
pointed out that the crux of arbitration is that any type of dispute when referred by the parties to
tribunal for the settlement of their own choice though not ordered by a Court.26

In Bharat Sewa Sansthan v. U.P. Electronics Corporation Limited 27, the Supreme Court
explaining the object of Arbitration Act observed that the main objective of the Arbitration Act is
to make provision for an arbitral procedure which is fair, efficient and capable of meeting the
needs of the specific arbitration and to reduce the supervisory role of the Courts in the
proceedings of arbitral award and also to permit an arbitral tribunal by using the methods i.e.
conciliation, negotiation, conciliation or such other procedures during the proceedings in
settlement of disputes.

In Bhagwani Devi v. The Chairman, Delhi Agricultural Marketing Board 28, the Delhi High Court
laid down that the object of an arbitration is that the parties choose a judge to decide their
disputes except of taking recourse to civil proceedings and every attempt must be made to see
that in such a situation, recourse is had to that every mode of settlement of disputes which the
parties have agreed to.

Negotiation

It is right that, nothing is more satisfying and more soothing than a sociable negotiated friendly
settlement because it protects the personal and business secrets, relationships and reputations that
might otherwise be impaired by the adversarial process. The process of negotiation does not
25
Arbitration and Conciliation Act, 1996, s. 2.
26
Dr. N.V. Paranjape, Law Relating to Arbitration & Conciliation in India 35 (Central Law Agency,
Allahabad, 7th Edn., Reprint 2018).
27
AIR 2007 SC 2961.
28
2006 2 Arb.LR 374 Del.
follow any of the concepts of ‘arbitration’ or ‘conciliation’. In strict sense, negotiation by itself,
is not an alternative dispute resolution procedure because it is a bi-party process and does not

require a third party to make possible the settlement, whereas alternative dispute resolution
methods necessarily involve a third person for making possible the resolution of the dispute by
settlement. However, it is the most fundamental way to resolve the dispute and is treated as one
of the main part of alternative dispute resolution processes. It is only when the process of
negotiation does not succeed and it transforms into alternative dispute resolution method by
intermediate of a neutral and well planned process framework.29

Conciliation

The term ‘Conciliation’ has not been defined in the act of Arbitration and Conciliation Act and in
the provisions under Section 89 of the Code of Civil Procedure, as amended in the year 1999.
However, Section 62 of the Arbitration and Conciliation Act, 1996 deals with reference to
conciliation by agreement of parties while Section 89 of the Code of Civil Procedure permits the
Civil Court to refer a dispute for conciliation.30

As a form of Alternative Dispute Resolution, conciliation has acquired legal recognition in the
Arbitration and Conciliation Act, 1996. Unlike arbitration, it is neither based nor controlled by
existence of a prior agreement between the parties. Thus, recourse to conciliation can be made
even after parties have resorted to litigation and the case is pending before a Court. In brief,
conciliation means any third party that assist alternate dispute resolution approach. He can
discuss the details of the dispute with the parties and on the basis of facts collected, he himself
proposes a solution, which in his opinion is fair and reasonable. It is far less informal than the
process of arbitration. Conciliation is normally a voluntary process and discussions made in the
process of conciliation are not binding on the parties unless the parties themselves have agreed to
the contrary.

While explaining the provision of Section 72, the Supreme Court in Haresh Dayaram Thakur v.
State of Maharashtra31, held that each party by his own consent or by the invitation of the
29
Brown and Marriott, ADR Principles and Practice 12 (Sweet & Maxwell Publisher, 2ND Edn., 1999).
30
Supra note 27 at 435.
31
AIR 2000 SC 2281.
conciliator can submit to the conciliator such suggestions that are essential for the settlement of
the dispute

Judicial Settlement

Judicial settlement is a confidential form of mediation performed by a Judge other than the trial
Judge to whom the case is assigned for disposal. The Settlement judge serves as a facilitator to
create a valuable atmosphere for negotiations among the disputant parties. First, he holds session
with each party separately and offers an objective assessment of the case and suggests settlement
options. Thereafter, he holds joint sitting with the parties to dispute and tries to make them agree
for a consensual settlement. It would be suitable to refer to the Civil Procedure Code
(Amendment) Act, 2002 in the context of Judicial Settlement as an alternative dispute redressal
mechanism. The provision contained in Section 89 of the Code is designed to enable the Courts
to bring about a settlement of dispute outside the Court.

Lok Adalats

The literal meaning of the term ‘Lok-Adalat’ is people’s Court. It has been defined as a forum
where voluntary effort aimed at the settlement of disputes between the parties is made by
conciliatory and effective means. Lok Adalats functioning under the Legal Services Authorities
Act, 1987 differ from the earlier Nyaya Panchayats. The jurisdiction of Adalats is not limited to
specific categories of petty matters but it extends to any matter. The initiation of Lok Adalats
represents the creation of alternative dispute redressal forums that are more efficient than Courts.
But the functioning of these Adalats is not based on a uniform pattern. Various types of Lok
Adalats has been organised to dispose of special type of cases. The examples are Motor Accident
Claims Settlement Lok Adalat, Pension Lok Adalat, Postal Services Lok Adalat, Electricity Lok
Adalat, Women’s Lok Adalat, Telephone Services Lok Adalat and so on.32

The present research work focuses on the study about the overview of Administration of Justice,
which constitutes the major part of justice delivery system. Therefore, to understand the proper
justice delivery system, there is a need to discuss about the Administration of justice in detail,
and the same has been discussed in the next chapter.
32
Supra note 27 at 436.
CHANGING SCENARIO OF JUSTICE

India is one of the oldest civilization and during its long history, different- different modes were
adopted by the then societies to deliver justice to meet their existing needs. The Hindu Period
ended after the Christian era came into existence. However, the Muslim period started with the
entry of the Arabs in the eighth century in the Malabar Coast and it continued till the British
arrived as merchants in the year 1601. The British period lasted till the time, India got
independence. The detailed discussion about the existing justice delivery system in the then
societies comes under the following heads:

Position in Hindu Period

In Ancient Indian Hindu Period, the Hindu society and faith of Hindus continuously developed
and attained a fixed shape. Many important faiths, sects, beliefs and doctrines of current
situations were established in the ancient Hindu myths and ideals 33 . In this period, the delivery
of justice was in the hands of the King, who was considered as a representative of God. It was
his holy duty to punish the law breakers. Karma and Dharma were the two most important ideas
of the political view of Hindus. According to Dharmashastras, the meaning of dharma came as
duties, privileges and obligations of a man that are derived from the Vedic sources. It can be
considered as the standard of conduct and behavior as a member of the Hindu society.24 Karma
is the second characteristic of this period. Karma means the act done by a man and on the basis
of that Karma, the man had to get result. It can be said that as you sow so shall you reap.

The King was the head of the state. His Court was the Supreme authority of appeal as of like the
Supreme Court of modern times. In the cases of great importance, such as related to the state, it
also used to act as an original Court. The King was advised by notable Brahmins or Pandits. The
Chief Justice and other Judges also act as the adviser of the King. Along with the King, the Court
was also consisted of a board of judges, who also used to assist him. In villages, the local village
councils or Kulani, which were almost similar to modern day panchayats, used to administer
justice and to resolve the petty disputes of the public.34
33
V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History 6 (Eastern Book
Company, Lucknow, 10th Edn., Reprint 2015).
34
Id. at 11.
One of the basic rules of the administration of justice in the Hindu Period was that justice should
be provided by a single person. However, at times, it also included a panel of two or more
Judges. The King along with his council used to hear the cases and on the basis of evidences, he
used to administer justice. However, the concept of advocates representing the parties came
much late.35 The judicial procedure was very well explained in the Hindu Period. A suit or trial
was consisted of four parts; the plaint or the complaint, the reply or the answer, the trial or
hearing and investigation or inquiry of dispute by the Court and the verdict or the decision.36

When the plaint was presented to the Court, it means that the plaintiff had submitted himself to
the jurisdiction of the Court. After that the Court was entitled to issue an order directing the
defendant to present his case by submitting his reply to the allegations made in the plaint. If the
defendant admits the allegations that leveled against him in the plaint, the Court was duty bound
to decide the case. Where the defendant opted to contest the case, it was the duty of the Court to
provide both the parties, full opportunity to prove their respective case with the help of
evidences. While administering justice, the Court was duty bound to follow the principles of
natural justice. Generally, evidence was consisted of witnesses, documents and the possession of
accusing objects.37

In the ancient Hindu period, the prevalent form of punishment was expiation. It is said that if any
person expiated, it removed impurities from his sinful behavior and his character was reformed. 38
In the ancient criminal law, criminals were punished with imprisonments as well as fine. There
were provisions for corporeal punishments also. In specific cases, the Court also had power to
grant compensation to the aggrieved party. It was also a part of the punishment. The offender had

to pay the compensation otherwise he was required to undergo extra punishment. Most of the
penalties were based upon caste-considerations as mentioned by Budhayana.30 In the specific
offences i.e. adultery rape, etc., the caste considerations used to play an important role in
deciding the punishment that was awarded. In other cases i.e. abuse or contempt cases, the
benefits were given to higher caste and the lower or weaker section of the society had to undergo

35
Id. at 12.
36
P.V. Kane, “History of Dharmashashastra” Bhandarkar Oriental Research Institute Mysore, Ist Ed.
1973, Vol. III, P. 379.
37
Id at 330.
38
Supra note 33 at 15.
the extra punishment. For committing murder, the Sutras prescribe that the murderer should pay
fine according to the caste of the person murdered.

Position in Muslim Period

The justice delivery system of India during the Muslim period can be divided under two parts.
The first part deals with judicial system under Delhi Sultanate and the second part deals with the
judicial system under Mughal Empire. Let us discuss in detail:

Sultanate of Delhi

The establishment of the Delhi Sultanate in 1206 A.D. marked the beginning of a new era in
Indian history. Justice delivery system was the primary function of the Sultan. Islamic law or
Shara was followed by all the Sultans. Muslim criminal law as applied in India, was supposed to
have been defined once for all in the Quran as revealed to the Arabian Prophet and his traditional
sayings (hadis). The administration of justice was one of the main functions of the King. The
chronicles provide detailed information on king’s responsibility for upholding and maintaining
the Shariah. He was the head of the judicial organization. According to Islamic jurisprudence, as
was the position under the Hindu jurisprudence, the ruler constituted the highest court of the
justice. Being head of the state, he was the supreme authority to administer justice in his
kingdom. Respect for law and dispensation of justice was main objective of Sultan.31 For
achieving such objectives, King had appointed learned and competent persons on judicial posts.
Muftis were also used to assist courts and they all were under an obligation to obey the law and

administer it according to the law of Shariah. Even Sultans themselves obeyed decisions of

Courts. They themselves were strict observer and have tried to make it compulsory for all state
functionaries to respect law. All breaches to holy law were forbidden.

In the reign of Sultans, it was well recognized principles that the Non-Muslims should resolve
their disputes and affairs through their own religion. During this period, the civil disputes such
as; inheritance and alike matters were resolved through Islamic law whereas Hindus had their
own special law. Regarding criminal law, both Hindus and Muslims were treated similarly. In
the Hindu dominated areas, there was self government under which they had to apply their own
law. Surprisingly, Sultans had interfered in the small arrangements only where the administrative
units were important otherwise, Sultans had authorized Hindus to apply their own special law.

The justice delivery system was one of the main functions of the Sultan, which was done in his
name in the capacity of arbitrator, head of bureaucracy and commander-in-chief of all forces.
Prior approval was required for the Courts for awarding stringent punishments such as capital
punishment or death. The justice delivery system was well organized on the basis of divisions of
the regime. The classification of the Courts was well organized and in a systematic way. 39

The Emperor was the Sultan himself. In terms of judiciary, the Chief Justice was the sole
authority. He was known as Qazi-ul-Quzat. Sultan was introduced before public in the presence
of Chief Justice and other officers. The Chief justice was subordinate to Sultan. Most of the
Sultans did not interfere in the judicial wing. Sultan was also assisted by Council of Ministers
but he was not bound to act on such advice. He may take decisions at his discretion. In some
cases, Chief Ministers of the Sultans were given special judicial powers to try cases. They used
to perform judicial duties along with executive duties. In the regime of Sultans, different courts
were constituted to deal with different kinds of cases. Courts were constituted at central capital
and at the headquarters of a province, district and parganah. During the said period, the Court of
Diwan-e-mulzim was the highest court of criminal appeal. To deal with the cases of criminal
prosecutions of rebels and those charged with high treason, a separate court Diwan-e-siyasat was
constituted. The judiciary and police were placed under the Chief Sadr and Chief Qazi. However,
usually, both the offices were being held by the same person. A hierarchy of Qazis was also
established to dispose of cases of civil and criminal nature. At each provincial headquarters,
Adalat Qazi-e-subah was empowered to try civil and criminal cases of any description. They
were also authorized to hear appeals from the district courts. Similarly, there were courts at the
district and paraganah headquarters. Appeals were filed before the district court against the
judgments of the Parganah Qazis, Kotwals and village Panchayats. Petty criminal cases were
filed before the Kotwal who was the principal executive officer in towns.

39
Id. at 23.
During the regime of Sultans Muslim, village continued to be the smallest administrative unit of
the government. Each paraganah was consisted of a group of villages. For each group of villages,
there was a village Panchayat, a body of five leading men, elected by the villagers. The head of
Panchayat was known as Sarpanch. From ancient times, the Village Councils (Panchayats) were
authorized to administer justice in all petty civil and criminal matters. The institution of
Panchayat as it was existing during the Hindu period, remained untouched during this period
also. The authority of Panchayat was recognized and it continued to decide both civil and
criminal cases of purely local character during the Sultanate period also. Village Panchayats
were mostly governed by their customary laws. Though, the decisions given by Panchayats were
based on local customs and were not strictly according to the law of the kingdom, yet there was
no interference in the working of Panchayats. As a general rule, the decision of Panchayat was
binding upon the parties and no appeal was allowed from its decision. Mostly these Panchayats
decided cases as between Hindus who formed the bulk of the population.

Mughal empire

The Mughal period was started when Babur defeated Ibrahim Lodi, last Lodi Sultan of Delhi in
famous battle of Panipat. Though, for a brief period, Humayun, the son of Babr, lost his regime
to Sher Shah but he regained it when he defeated the heir of Sher Shah. The Mughal Empire had
also adopted the same political division which was in existing during the times of Sher Shah
Suri. Just like the Delhi Sultanate, the Mughal Kings were also completely monarchs and the
Supreme authority be it executive, legislative or judicial was vested in them.

In this period, the King (Emperor) was regarded as the source of justice. The Emperor initiated a
separate department to control the justice system so that it can work properly. Separate Courts

were established to decide different type of cases. The highest Courts of the regime were
established with original and appellate jurisdictions. The said courts were situated at Delhi.
During this period, a balanced and well organized gradation of Courts was established with well-
defined powers of the presiding judges40

40
Id at 27.
During the Mughal period also, the panchayats were the smallest units to provide justice at
village level. The panchayats were empowered to deliver justice in all civil and criminal petty
matters e. Generally, the panchayat meetings were held in public places, presided by five panchs
elected by the public of village. The panchayats used to decide the matters only after giving a fair
hearing to both the parties. Sarpanch was generally the head of the panchayat system. There was
no provision of appeal from the decision given by a panchayat. Panchayats were almost run by
their customary laws.41

A balanced and well planned judicial procedure was followed by the Courts of that time. The
status and powers of the Courts were decided by the political authority of the regime. In the
matters of monetary benefits, the complainant or his well authorized agent was required to file a
plaint or complaint for his claim before a Court, having jurisdiction in such matter. The
defendant that was stated in the plaint was then called upon by the Court to submit that whether
he wants to accept or reject the claim. If the claim was then denied by the defendant, the Court
was duty bound to frame the issues and it was the duty of the plaintiff to produce evidences to
support his claim. It was also the duty of the Court that the defendant be given an opportunity so
that he could prove his case with the help of his witnesses and other evidences. The procedure
was that the witnesses were required to be cross-examined. When all the evidences and the
statement of all the witnesses of both the sides were taken then it was the duty of the court to
weigh all the evidences and after that to pronounce the judgment in open Court.

At that time, for the determination of criminal matters, a complaint was presented before the
Court of law either by self or by his heir or representative. Every criminal Court was governed
with a public prosecutor. His duty was to prosecute the case against the accused in the Court.

Position in British Period

The Britishers came to India in the year 1600 as trading merchants. At that time, Queen
Elizabeth-I granted an order to the Company, which was incorporated in the name of the East
India Company for trade in the countries, part of Asia and Africa, for a limited period of fifteen
years. In this way, the Company then became a juristic person with lot of exclusive privileges

41
Id at 29.
and customs of trade with that part. The very same order had also granted several legislative
powers to the Company so that they can make laws, ordinances and pass orders for smooth
running of administration in their areas. It helped them to govern the government in a better way.

The Charter of 1600 came into existence only in connection with the trade. However, at that
time, the company was not intended to acquire the regime in India. The law making authority
was given to the Company only so that it could regulate its own laws to maintain business and
also could maintain discipline amongst its servants.36 The first judicial plan came in existence in
the year 1772 under the chairmanship of Warren Hastings. That plan was the first step towards
the making of law for proper running of the machinery of administration of justice and justice
delivery system. In India, that plan became a landmark in the judicial history of India and
became famous as Warren Hastings Plan of 1772.

Under this plan, Article 27 had directed that the Diwani Adalats could decide all the cases which
were based on the basic laws of the Quran, to govern the Mohammedans and other basic laws
mentioned in shastras, to govern the Hindus. That was one of the most essential provisions of
that plan because it had provided safeguards to the personal laws of Hindus and Mohammedans,
placing both these laws on equal footing. As Macaulay has quoted, it was a far-sighted policy.

Rankin’s recognized it as an act of enlightened policy. In the year 1800, the British Parliament
passed an Act which empowered the Crown to establish a Supreme Court at Madras as in the
place of Recorder’s Court. The Crown issued Letter's Patent on 26th December, 1800 which
repealed the Recorder’s Court and created the Supreme Court at Madras. The various powers of
the Recorder’s Court were then transferred to the Supreme Court. It was also ordered to exercise
the other similar jurisdictions. However, certain restrictions were imposed on the Supreme Court
also.

Thereafter, the Charter Act of 1833 was passed. It empowered the Governor- General-in-Council
with the help of the Law Member, to legislate law for all the provinces. It has been an important
landmark in the legal history of India. The centralization of legislative machinery not only
introduced the unification of laws but also removed conflicts and confusion that had arisen due
to the enactment of Regulation Laws by legislature of the different provinces. The said Charter
announced that the Acts that were passed by the Governor-General-in-Council then would be
binding on all Lower Courts of the land, including the Supreme Court. It had also emphasized on
the passing of uniform law governing the important fields. That Charter also played an important
role on the appointment of the First and Second Law Commission. The Indian Penal Code, the
Civil Procedure Code and the Criminal Procedure Code were the result of the Commission. 42

Thereafter, came in force the High Court’s Act, 1861. With the enactment of this Act, many
types of Civil and Criminal Courts were established to provide justice in the province of
Calcutta. The civil Courts were: Sadar Diwani Adalat, City Courts, Zila Courts, Courts of
Principal Sadar Ameens, Court of Sadar Ameens and Courts of Munsiffs. The criminal Courts
were: Sadar Nizamat Adalat, Courts of Sessions Judges, Joint Magistrates, City Magistrates, Zila
Magistrates, Deputy Magistrates, Principal Sadar Ameens, Law officers of City Courts and Law
Officers of Zila Courts.43

There were various types of Civil and Criminal Courts of the Company in Bombay before the
creation of the High Court. The Civil Courts were: Sadar Diwani Adalat, Zila Courts, Courts of
Assistant Judges, Courts of Principal Sadar Ameens (Native Judges), Courts of Sadar Ameens
(Native Commissioners) and Courts of Munsiffs. The Criminal Courts were: Sadar Nizamat
Adalat, Courts of Judicial Commissioners of Circuit, Courts of Sessions Judges, Courts of Joint
Judges in certain Zilas and Courts of Assistant Sessions Judges. Apart from such system, the
offences of petty nature were decided by the Heads of Villages and District Police Officers.

The Company’s judicial machinery in Madras consisted of eight sets of civil Courts before the
High Court of Madras was established. The civil Courts were; Sadar Diwani Adalat, Zila Courts,
Courts of Assistant Judges, Courts of Subordinate Judges, Courts of Principal Sadar Ameens,
Courts of Sadar Ameens, Courts of District Munsiffs and Courts of Village Munsiffs. The
criminal Courts consisted of: Sadar Nizamat (Faujdari) Adalat, Courts of Sessions Judges,
Subordinate Judges, Magistrates, Joint Magistrates, Assistant Magistrates, Principal Sadar
Ameens, Sadar Ameens and District Munsiffs. Apart from such system, the petty offences were
also tried by the Heads of villages and the District Police Officers.42 The Act of 1861 had given
power to the Crown to create or establish the High Courts of Judicature at Calcutta, Bombay.
This act also abolished the Supreme Courts and the other Courts of Sadar Diwani Adalat and
42
Id at 188.
43
Id at 183.
Sadar Nizamat Adalat. The Letter Patent fixed the jurisdiction and powers of the High Courts.
Certain High Court in the North–West Provinces were also established as the Crown had such
powers.

Three kinds of jurisdictions i.e. Original, Appellate and Advisory were provided to the Federal
Court. The Federal Court of India remained in existence till the creation of the Supreme Court of
India in 1950 when the Constitution of India came into existence. The Federal Court was not
authorized to enforce its own decisions directly but with the help of civil and judicial authorities
throughout the Federation. It was not to pronounce any judgment in its original jurisdiction other
than an affirmative judgment.Under the Act of 1935, the Federal Court was also empowered to
hear appeals in Constitutional matters. However, from the year 1948, the appellate jurisdiction of
Federal Court was also extended to civil and criminal matters. Powers were also given to the
Federal Court to hear appeals from the High Courts on special questions relating to the
interpretations of Constitution. The Federal Court was also empowered with the special original
jurisdiction to decide the matters between the Center and the State(s). Appeals were also allowed
to the Federal Court from any type of judgment, decree or final order of a High Court if it was
based on a substantial question of law involving the interpretation of the Constitutional
provisions. The Federal Court also had the jurisdiction with respect to grant of special leave to
appeal in which a certificate of the High Court was necessary.

India became as an Independent Supremacy on the 15th August, 1947. The Central Legislature
of India abolished the old system, relating to the filing of appeals from the High Courts to the
Privy Council. The appeals, which were pending before the Privy Council, were also transferred
to the Federal Court of India.48 On 26January, 1950 with the creation of Supreme Court of
India, the Federal Court was abolished. However, the features of Federal Court i.e. Independence
of judiciary, integrity and impartiality, were inherited by the Supreme Court of India. 44

Position in Post-Independence Era

On 26th January, 1950, the Constitution of India came into force. The composition, powers and
functions of all the three organs of the Government i.e. the Executive, the Legislature and the

44
Id. at 232.
Judiciary are well defined in the Constitution. The main function of the Legislature is to make
laws, Executive is to implement and execute the laws and the Judiciary is to interpret the laws
and to deliver justice. In any country, the Judiciary plays the important role of interpreting and
applying the laws and adjudicating upon the issues between one citizen and another and between
a citizen and the state. In a Federal system, the judiciary has one another meaningful work to do
that is to decide various issues between the constituent states inter-se as well as between the
Centre and one or more state. It is the function of the Courts to maintain rule of law in the land
and to assure that the government runs according to law.45

In the countries where a written Constitution exists, Courts have the function of safeguarding the
supremacy of the Constitution by interpretation and application of its provisions and keeping all
authorities within the Constitutional framework. In addition to the above, the judiciary also
performs the important function of protecting and enforcing the fundamental rights of the people
that are guaranteed to them by the Constitution of India.

Social Justice

The concept of justice is commonly associated with an inherent supposition that justice equates
to equal rights, access, and fair treatment in the legal system. The concept of social justice is the
necessary implication of welfare state. Social justice means the abolition of all types of
disparities which may originate from the disparity of wealth, race, opportunity, religion, status,
caste, title and alike. The scheme of social Justice is very well incorporated in the various
provisions of the Indian Constitution. The Preamble to the Constitution includes the phrases such
as; ‘Socialist’, ‘Social and Economic Justice’ etc. which specify that the state would extensively
involve in social welfare of people, and would try to establish an equalitarian society. To achieve
such ideal of social justice, the Constitution has laid down the Directives for the State in Part-IV
of the Constitution. It mentions the guiding principles for the government to secure social justice
to the citizens of the country.46

45
Supra note at 191.
46
Narender Kumar, Constitutional Law of India 39 (Allahabad Law Agency, Faridabad, 10 th Ed. 2018).
The concept of social justice has emerged out of a ceaseless process of evolution of social norms,
order, law and morality. The term ‘social’ as one can understood, is concerned with all human
beings within the society and the term 'justice' is related with liberty, equality and rights. Thus,
social justice ensures liberty, equality of individuals and also maintains their individual rights in
the society. In other words, securing the highest possible development of the capabilities of all
members of the society may be called as social justice. While dealing with the idea of social-
justice, it becomes essential to differentiate between the traditional concept of ‘justice’ and
modern concept of ‘social justice’ intended to establish a democratic society. The felling of
social justice, however, is relatively modern phenomenon and largely a product of the recent
social and economic developments.

Article 39(f) of Indian Constitution provides that the state shall direct its policy towards securing
that children are given opportunities and facilities to grow in a healthy manner and youth are
protected against exploitation and against moral and material abandonment. Under Article 41, it
is expected that the State shall make effective provisions for securing the right to work, to
education and to public assistance in case of unemployment, old age, sickness and disablement.
Article 42 states that the state shall make provisions for securing just and humane conditions of
work and for maternity relief. Article 43 mentions that the State shall endeavor to secure, by
suitable legislation or economic organization or in any other way, to all workers agricultural,
industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of
life. In PUDR v. Union of India47, the Supreme Court held that minimum wages must be given
and not to pay minimum wages is the violation of human dignity and it is also known as
exploitation.

In D.S. Nakara v. Union of India 48, and in Minerva Mills v. Union of India 49, the Supreme Court
further elaborated the concept of social justice and held that the expression social Justice in the
preamble recognizes the Benthamite principle of greatest happiness without the deprivation of
legal rights. The concept of justice specially, a provision of Indian Constitution is to protect the
weaker section from social injustice. Another provision also exists in special provisions for
backward classes. Further, certain provisions dealing with reservation for backward classes,
47
1983 1 SCR 456.
48
AIR 1983 SC 927.
49
AIR 1980 SC 1789.
special provisions for scheduled caste and scheduled tribes in reserving certain seats of
Parliament and relaxation of minimum qualifying standard for admission to certain professions.

Economic Justice

Economic Justice means the banishment of poverty, not by expropriation of those who are poor
but by the multiplication of the national wealth and resources and an equitable distribution
thereof amongst all who contribute towards its production. In short, economic justice aims at
establishing economic democracy and a welfare state. The expression “economic justice” can
also be defined as justice from the viewpoint of economic force. In short, it means equal pay for
equal work, that every person should get his just dues for his labour, irrespective of his caste,
sex, race or social status. The ideal of economic justice is to make equality of status, living, at its
best, that remove inequality of opportunity and of status social, economic and political.

Economic justice is a facet of liberty without which equality of status and dignity of person is a
teasing illusion. The ideal of economic justice is to make equality of status meaningful and life
worth living at its best removing inequality of opportunity and of status-social, economic and
political.

Article 16 of Indian Constitution provides for equality of opportunity in public employment. It is

divided into two parts. The first part mandates that irrespective of religion, race, caste, sex,
decent, place of birth and residence, every person will get the equal opportunity in the matter
relating to employment or appointment to any office under State. The Second part deals with the
concept of social equality and empowers the State to make reservation for the backward classes.
The principal object of this provision is to facilitate the economic justice between the people and
to remove the inequalities in terms of their opportunities.50

Article 19 of the Constitution also deals with the aspect of economic justice. In regards of
economic justice, Article 19 can be divided in two parts. The first part relates to Article 19(i)(g)
which provides the right to practice any profession, or to carry on any occupation, trade or
business to all the citizens of India. The second part pertaining to economic justice is mentioned

50
The Constitution of India, art. 16.
under Article 19(vi) which lays down that the State shall have the power of imposing reasonable
restrictions upon the right ensured by Article 19(i)(g).51

In State of Mysore v. Workers of Gold Mines 52, it is observed by the Supreme Court that the
concept of social and economic justice is a living concept of revolutionary import and it gives
nourishment to the rule of law and meaning and significance to the ideal of a welfare state.

Political Justice

Political Justice means the absence of any reasonable and fair distinction among men in political
matters. The Constitution has adopted the system of universal adult suffrage with the aim to
secure political justice. “Justice” in the real sense be secured to the people of India. The
Constitution, not only secures equality of status and of opportunity but also prohibits
discrimination on various grounds. At the same time, it makes special provisions for the
promotions of the interests of socially and educationally backward classes of citizens and other
weaker sections of the society.

Natural Justice

Natural justice is adopted in administrative law for ensuring fair exercise of power by
administrative agencies. Fair exercise of the power of administration is possible when the power
is used as per the fair procedure. The universal rule of fair procedure is fair hearing. If a dispute
arises, both the parties must be heard. If one party is heard the other party must have the right to
be heard otherwise it may lead to injustice. Now-a-days, the powers of administrative authorities
have considerably increased and that is why the Courts have always insisted that administrative
authorities must follow the criteria of fair procedure, while exercising their powers and
discharging in their functions. Minimum fair procedure refers to natural justice.53

The concept of natural justice came into existence at an early time. For instance, in the case of
Mohinder Singh Gill v. Chief Election Commissioner 54, the Supreme Court held that the concept
51
The Constitution of India, art. 19.
52
AIR 1958 SC 923.
53
Dr. J.J.R. Upadhyaya, Administrative Law 164 (Central Law Agency, Allahabad, 9th Edn. 2014).
54
AIR 1978 SC 851.
of fairness should be in every action whether it is judicial, quasi-judicial, administrative and or
quasi-administrative work.

Natural justice includes those principles that are developed by judges which are very important
to run the administrative functions. Administrative agencies must follow these principles while
taking decision, affecting the rights of private persons. The concept of natural justice entails two
principles i.e. Nemo judex in causa sua and Audi alteram partem. The first principle of natural
justice is rule against bias. It means that the deciding authority must be impartial and neutral. 55

In D.K. Yadav v. J.M.A. Industries Ltd 56, it has been held by the Supreme Court that application
of the principles of natural justice that no man should be condemned unheard intends to prevent

the authority from acting arbitrarily, affecting the rights of the concerned person. In State of U.P.
v. Sudhir Kumar Singh57, the Supreme Court observed the principle of natural justice and
summarizes the principles by several precedents, which are as follows:

(a) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit
cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself
lead to the conclusion that prejudice is thereby caused.

(b) Where procedural or substantive provisions of law embody the principles of

natural justice, their contravention per se does not lead to invalidity of the orders
passed. Again, prejudice must be caused to the litigant, except in the case of a
mandatory provision of law which is conceived not only in individual interest, but also
in public interest

(c) No prejudice is caused to the person complaining of the breach of natural justice
where such person does not dispute the case against him or it. This can happen by
reason of estoppel, concurrence, and waiver and by way of non-challenge or admission
of facts and in cases in which the Court finds on facts that no real prejudice can

55
Id at P. 175.
56
AIR 1993 SCC 259.
57
AIR 2020 SC 5215.
 therefore be said to have been caused to the person complaining of the breach of natural
justice.

(d) In cases where facts can be stated to be admitted or indisputable, and only one
conclusion is possible, the Court does not pass orders of setting aside or remand, when
there is, in fact, no prejudice caused. Such conclusion must be drawn by the Court on
appraisal of the facts of a case, and not by the authority who denies natural justice to a
person.

Conclusion

The concept of justice is an old concept. Law in India has evolved after a long process, the
society cannot exist without rules and regulations. Without rules and regulations in the society
the anarchy will prevail. When human being started living in the society from that period his
journey to search for justice started. The need of justice delivery system was the result of the
conflict of interest between all the individuals living in the society.

According to Ernst Banker- “Justice is a term of synthesis. It is the final principal which
Comforts the general distribution of rights and the various principles of their distribution.”

There is a conflict between individual's conduct against the general welfare of society. So, to
achieve the justice the act of an individual is differentiated between the just and unjust. Therefore
some acts of individual come under the definition of just acts and other acts of individual comes
under the definition of unjust acts. Just acts are considered those acts which promotes happiness
promotes common good and on the other hand just acts are considered those acts which
promotes self interest and which is against the general interest of the society.
Statutory provisions for Justice delivery system
India is one of the largest democracies of the world. The Indian Constitution embraces the goal
of achieving social equality in express terms. The author in this research paper has elaborately
discussed the scheme of social welfare as enumerated in the Indian Constitution. The Preamble
of the Constitution has used the terms like “Socialist”, “Social and Economic Justice”,
“Equality”, these terms indicates that the state would extensively involve in social welfare of
people, and would try to establish an egalitarian society. Moreover a separate chapter each of
Fundamental Rights and Directive Principles of State Policy has been devoted towards the
welfare responsibilities of the government, which lays down the norms of ideal governance for
people’s welfare and to protect their human rights. The author has stressed that Social justice
does not demand equal treatment but preferential treatment. The proper and balanced
implementation of government policies is needed to ensure social justice in the society.
The Indian Constitution is unique in its contents and spirit. The constitutional scholar Granville
Austin, in his magisterial work 58 , states that probably no other Constitution in the world “has
provided so much impetus towards changing and rebuilding society for the common good”.
Though borrowed from almost every constitution of the world, it has several salient features that
distinguish it from the constitutions of other countries. Social justice is the idea of creating a
society or institution that is based on the principles of equality and solidarity, that understands
and values human rights, and that recognizes the dignity of every human being 59. Feeling of
social justice is a form of relative concept which is changeable by the time, circumstances,
culture and ambitions of the people. Social inequalities of India expect solution equally. Under
Indian Constitution the use of social justice is accepted in wider sense which includes social and
economical justice both. The makers of the constitution who were well known to the use and
minimalist of various principles of justice wanted to search such form of justice which could
fulfill the expectations of whole revolution. Social justice found useful for everyone in its kind
and flexible form. Although social justice is not defined anywhere in the constitution but it is an
ideal element of feeling which is a goal of constitution and it is the foundation stone of Indian
Constitution.

The preamble and various Articles contained in Part IV of the Constitution promote social justice
so that life of every individual becomes meaningful and he is able to live with human dignity.
The concept of social justice engrafted in the Constitution consists of diverse principles
essentially for the orderly growth and development of personality of every citizen. Social justice

is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice
is one of its species; Social justice is a dynamic devise to mitigate the sufferings of the poor,

weak, dalits, tribals and deprived sections of the society and to elevate them to the level of
equality to live life with dignity of person. In other words, the aim of social justice is to attain

substantial degree of social, economic and political equality, which is the legitimate expectation

of every section of the society. In a developing society like ours which is full of unbridgeable

58
Austin Granville, Working a Democratic Constitution: A history of the Indian Experience, Oxford University
Press, 1st Edition, 2003.
59
J. Zajda, Education and Social Justice, Springer.
and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the
ladder of justice. The philosophy of welfare State and social justice is amply reflected in large
number of judgments of this Court, various High Courts, National and State industrial Tribunals
involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act,
Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen's
Compensation Act, the Employees Insurance Act, the Employees Provident Fund and
Miscellaneous Provisions Act and the Shops and commercial Establishments Act enacted by
different States.

The preamble itself says: "We, the people of India, having solemnly resolved to constitute India
into a sovereign, socialist and democratic Republic and to secure to all its citizens—Justice,
social, economic and political...." Clearly, social justice in all its forms and to all citizens was
regarded as fundamental to the set-up which our founding fathers prescribed for the country; it is
mentioned on top of the other equally sound concepts. The words, “Socialist” 60, “secular”,
“democratic” and “republic” have been inserted in the preamble. Which reflects it’s from as a
“social welfare state.” The term ‘justice’ in the Preamble embraces three distinct forms- social,
economic and political, secured through various provisions of Fundamental Rights and Directive
Principles. Social justice denotes the equal treatment of all citizens without any social distinction
based on caste, colour, race, religion, sex and so on. It means absence of privileges being
extended to any particular section of the society, and improvement in the conditions of backward
classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non- discrimination
between people on the basis of economic factors. It involves the elimination of glaring in
equalities in wealth, income and property. A combination of social justice and economic justice
denotes what is known as ‘distributive justice’. Political justice implies that all citizens should
have equal political rights, equal voice in the government.

Under Indian Constitution the use of social justice is accepted in wider sense which includes

social and economical justice both. As stated by Chief Justice Gajendragadkar, "In this sense
social justice holds the aims of equal opportunity to every citizen in the matter of social &

60
Inserted by Constitutional 42nd Amendment Act (1976).
economical activities and to prevent inequalities"61. The Constitution of India does not
completely devoted to any conventional ideology as – Equalitarian, Utilitarian, Contractarian or
Entitlement theory. Dedication of constitution is embedded in progressive concept of social
justice and various rules of justice such as Quality, Transaction, Necessity, Options etc are its
helping organs.

To accept right to equality as an essential element of justice, Indian Constitution prohibits

unequal behavior on the grounds of religion, race, caste, sex. The term ’equality’ means the
absence of special privileges to any section of the society, and provision of adequate
opportunities for all individuals without any discrimination. The Preamble secures at all citizens
of India equality of status an opportunity. This provision embraces three dimensions of equality-
civic, political and economic. But the question is how to determine inequality? In India it is not
easy to determine inequality. Equality is movable concept which has many forms and aspects. It
can not be tightened in traditional and principles circle. Equality with equal behavior prohibits
arbitrariness in action.

In view of securing to all its citizens social justice Indian Constitution provides some
Fundamental rights in Part III some of which are available to all persons and some are enjoyable
only by the citizens of India. Further, to realize the goal of social justice the constitution also
provides some direction to the State in the form of Directive Principles of State Policy and lays
down that the state shall direct its policy towards securing these objectives.

In India, courts have performed a great role to make the social justice successful. In the field of
distributive justice, Legislature and Judiciary both are playing great role but courts are playing
more powerful role to deliver compensatory or corrective justice but these principles are known
as mutually relatives not mutually opposites. Ideals and goals are to deliver social justice.

Medium may be distributive or compensatory justice. The adopted type may be of quality,
Necessity, Equality, Freedom, Common interest or other. The courts are now taking leading part
in the design of administration of many state services - including services for mentally ill and
retarded, for prison populations, for public welfare recipients, and for abused children and other

61
P.B. Gajendragadkar, Law, Liberty and Social Justice , Asia Publishing House, New York, 1965.
dependent persons. With that end in view the Supreme Court of India evolved a new mechanism
of public interest litigation or social interest litigation in the early eighties. In the fifties and

sixties the role of judiciary more or less remained as a sober manifestation of the movement for

social justice based on progressive values. While other institutions have lost their progressive
shine the judiciary remains a uniquely situated instrument for social justice, perhaps the only
effective force for challenging the institutions of the welfare state.

The Supreme Court of India has given a principal and dynamic shape to the concept of social
justice. Social justice has been guiding force of the judicial pronouncements. The judiciary has
given practical shape to social justice through allowing affirmative governmental actions are held
to include compensatory justice as well as distributive justice which ensure that community
resources are more equitably and justly shared among all classes of citizens. The concept of
social justice has brought revolutionary change in industrial society by charging the old
contractual obligations. It is no more a narrow or one sided or obscure concept. It is founded on
the basic ideal of socioeconomic equality and its aim is to assist the removal of socio- economic
disparities and inequalities.

This judicial activism sharing the passion of Constitution for social justice was rejuvenated with
the Maneka Gandhi case in which fundamental right of personal liberty has been converted into a
regime of positive human rights unknown in previous constitutional diction. Thereafter,
gradually the Supreme Court, particularly some socialist justices tried to explore social justice in
the Fundamental Rights and Directive Principles of State Policy. In this way the courts try to
force the government to realize the new concept of social justice in the cases of Sunil Batra (right
against torture); Bandhua Mukti Morcha (right against bondage); Peoples Union for Democratic
rights (right against bondage); M.C.Mehta (right against environmental pollution), Upendra Baxi
(right to human dignity), Sheela Barse (right to legal aid); many others. In these cases the judges
maintain that in a developing society judicial activism is essential for participative justice and the
bureaucrats as well as the elected representative will have to face the judicial admonition and pay
the penalty if the people in misery cry for justice.
The vibrant justice delivery system ensures proper enforcement of rights. The procedure should
cater to the needs of the all kinds of remedy seekers. It also should provide meaning to the

maxim ‘Ubi Jus Ibi Remedium’ (where there is a right, there is a remedy). Therefore, economic

hindrance or economic disability should not be a cause for refusal to entertain the case. This

module helps us in understanding the procedural law in view of needs of poor. The justice

delivery system in India is built on two procedural pillars , Civil Procedure Code and Criminal
Procedure Code. The main objective of these pillars is to ensure justice at all cost. The legislature
understood the difficulty of providing justice with standard procedure under different situations.
Therefore the code creates exceptions against its own law by providing inherent power to all
courts. This is a special power enjoyed by the Courts to ensure justice. The Court can usurp extra
power to ensure justice; it can venture into grey areas, lacunas or ambiguities of law and interpret
in favour of its rights

Constitutional Provisions

Indian Constitution defines 3 types of justice:-

1. Social Justice
2. Economic Justice
3. Political justice

Social Justice –

Social justice as a concept arose during industrial revolution of 19 th century. Different definitions
of social justice is provided by different institutions, for few it is fair and comprehensive
distribution of goods among people for economic growth and for few its equality of status among
individuals. Social justice means that equal social opportunities are available to every person for
personal development of every person without any discrimination based on race, sex or caste. No
person should be deprived of social conditions necessary for development due to these
differences. The concept of social justice is based on the practice of social equality. Social justice
can only be enforced in a society where exploitation of man by a man is not present.

Social justice means greater good for larger number of people and unequals should be treated
equally. The apex court in the Kesavananda Bharati case62 held that social justice is part of Basic
structure of the Indian constitution. In the Case of S.R Bommai v. Union of India63, the apex court
held that social justice and judicial review are two basic features of the Indian constitution.

Indian Judiciary's Interpretation of Social Justice

In Oriental Insurance Co. Ltd. v/s Hansrajbai V. Kodala64 the Apex Court held that "The object
is to expeditiously extend social justice to the needy victims of accidents curtailing delay - If still
the question of determining compensation of fault liability is kept alive, it would result in
additional litigation and complications in case claimants fail to establish liability of defendants -
Wherever the Legislature wanted to provide additional compensation, it has done so
specifically.”

The Supreme Court has firmly ruled in Balbir Kaur v. Steel Authority of India 65 that "the
concept of social justice is the yardstick to the justice administration system or the legal justice
and it would be an obligation for the law Courts to apply the law depending upon the situation in
a manner whichever is beneficial for the society" as the respondent Steel Authority of India was
directed to provide compassionate employment to the appellant.

In Superintending Engineer, Public Health, U.T. Chandigarh v. Kuldeep Singh 66 the Supreme
Court held that "It is the duty of the authorities to take special care of reservations in
appointments as a part of their constitutional duties to accord economic and social justice to the
reserved categories of communities. If ST candidate is not available, the vacancy has to be given
to SC candidate and the reserved roster point has to be filled in accordingly".

62
Kesavananda Bharati v. State of kerala and others, AIR1973 SC 0445.
63
AIR 1994 SC 0444.
64
AIR 2001.
65
AIR 2000.
66
AIR 1997.
In Ashok Kumar Gupta v. State of U.P.67 it was held by the Apex court that "To give proper
representation to SC/ST Dalits in services is a social justice which is a fundamental right to the
disadvantaged. It cannot be said that reservation in promotions is bad in law or unconstitutional."

In Consumer Education and Research Centre v. Union of India 68 it was held that "Social justice
is a device to ensure life to be meaningful and livable with human dignity. State has to provide
facilities to reach minimum standard of health, economic security and civilized living to the
workmen. Social justice is a means to ensure life to be meaningful and livable."

Indian Constitutional provisions ensuring Social Justice:

Fundamental rights in Part III some of which are available to all persons and some are enjoyable
only by the citizens of India are:-

a) Equality before law (Art 14)

b) Prohibition of discrimination on ground of religion, race, caste, sex or place of birth (Art 15)

c) Equality of opportunity in matters of public employment (Art 16)

d) Abolition of Untouchability (Art 17)

e) Abolition of titles (Art 18)

f) Protection of certain rights regarding freedom of speech etc. (Art 19)

g) Protection of life and personal liberty (Art 21)

h) Protection in respect of conviction for offenses (Art 20)

i) Protection against arrest and detention in certain cases(Art 22)

j) Protection of traffic in human beings and forced labour (Art - 23)

67
AIR 1997
68
AIR 1995
k) Prohibition of employment of children in factories or mines or in any other hazardous
employment (Art 24)

l) Freedom of Religion (Art 25 - 28)

m) Protection of interests of minorities (Art 29-30)

n) Judicial remedies for enforcement of rights conferred by this Part - III of the Constitution (Art
32).

Chapter IV of Indian Constitution Article 36 to 51 incorporate certain directive principles of

State policy which the State must keep in view while governing the nation.The most important of
these directives are –

a) Promotion of welfare of the people (Art 38)

b) Adequate means of livelihood; equal distribution of material resources of the community;

distribution of means of production to the common good and equal pay for equal work; - promotion of
health and strength of workers, men and women and the children : Protection against exploitation of
child hood and youth (Art 39)

c) Equal justice and free legal aid (Art 39A)

d) Right to work, education and to public assistance in certain cases (Art 41)

e) Just and human conditions of work and maternity relief (Art 43)

f) Living wages for workers (Art 44)

g) Uniform civil code (Art 44)

h) Free and compulsory primary education for children (Art 45)

The principles of Policy set forth in this part are intended for the guidance of the State. While
these principles shall not be cognizable by any Court they are nevertheless fundamental in the
governance of the country and their application in the making of laws shall be the duty of the
State.

Special provisions for backward classes of society

By incorporating the system of special provision for backward classes of society, it is to try to
make the principle of equality more effective. The State, according to Article 15(1) of the
Constitution, "shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, and place of birth or any of them." Under Article 15(4) the state shall make any special
provision for the advancement of any socially and educationally backward classes of citizen or
for the scheduled castes, and the Scheduled tribes and in the same manner by accepting the
opportunity of equality to employment under state in Article 16 (1), it has excepted the principle
of equalization under Article 16(4). If it is in the opinion of the state that any class of the citizens
has not adequately representation under state employment, state shall make any provision for the
reservation of appointments. According to Art 46 the State shall promote with special care the
educational and economic interests of weaker sections of the people, and in particular, of the
scheduled castes and the scheduled tribes, and shall protect them from social injustice and all
forms of exploitation.

In a very important case of Indra Sawhni v. Union of India 69 the Supreme Court declared twenty
seven percent reservations legal for socially and economically backward classes of the society
under central services. Social justice is a dynamic device to mitigate the sufferings of the poor,
weak, dalits, tribals and deprived sections of the society.

State to secure a social order for the promotion of welfare of the people Article 38 has been a
keystone of the Directive Principles. This article is a directive to the State to give effect to the
objectives expressed in the Preamble to the Constitution, by securing a social order for the
promotion of the welfare of the people. Article 38 stipulates as under:-

69
AIR 1993 SC 497
(1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall inform
all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocation.

While reading Arts. 21, 38, 42, 43, 46 and 48A together, the Supreme Court has concluded in
Consumer Education & Research Centre v. Union of India70, that “right to health, medical aid to
protect the health and vigour of a worker while in service or post retirement is a Fundamental
Right…..to make the life of the workman meaningful and purposeful with dignity of person.” In
the instant case, the Supreme Court dilated upon the theme of social justice envisioned in the
Preamble to the Constitution and Art. 38. Social Justice is the arch of the Constitution which
ensures life to be meaningful and livable with human dignity. Social justice, equality and dignity
of the person are cornerstones of social democracy. If a law is made to further socio-economic
justice, it must be prima facie reasonable and in public interest. In other words, if it is in
negation, it is unconstitutional.71

Child health and labour

Provisions of articles 39 (e), 39 (f), 41 and 47 can be pressed into service to make suitable
provisions regarding child labour. Article 39 clause (e) states that the health and strength of
workers, men and women, and the tender age of children are not abused and that citizens are not
forced by economic necessity to enter avocations unsuited to their age or strength. Clause (f)
states that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and the childhood and youth are protected against exploitation
and against moral and material abandonment.72

70
AIR 1995 SC 923: (1995) 3 SCC 42
71
AIR 1995 SC 923: (1995) 3 SCC 42
72
Substituted by the Constitution 42nd amendment Act (1976), Sec 7, for clause (f) (w.e.f. 3-1-1977)
Accordingly, the Supreme Court has issued directions to the State to see that an adult member of
the family whose child is in employment in a factory, mine or hazardous employment gets
employment anywhere, in lieu of the child.73 Article 39 (e) requires the State to direct its policy
towards securing that the health and strength of the workers and the tender age of children are
not abused. Relying on this Directive Principles, the Court issued directions to State
Governments for ensuring that care homes must provide at least the minimum conditions
ensuring human dignity.74 The state shall in particular, direct its policy towards securing that
children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment. Relying on Article 39(e) and (f), the Supreme Court laid down
the procedural and normative safeguards for adoption of children by foreign parents. 75 Principal
6 of the Declaration of Rights of The Child, 1959, provides that a child of tender years shall not,
save in exceptional circumstances, be separated from his mother.

Declaration in law

An express legislative declaration in the law itself that the law was enacted for giving effect to
the principles of State Policy in Article 39 (b) and 39 (c), is not a condition precedent to the
attraction of the protection under Article 31C to the impugned law. The nexus between the law
and the objects of Article 39 (b) could be shown independently of any such declaration by the
legislature. The expression ‘material resources’ in Article 39 (b) means all things which are
capable of producing wealth for the community. It is wide enough to cover not only natural or
physical resources, but also movable or immovable property, such as, land, buildings,
workshops, vehicles etc.

The word ‘distribution’ in Article 39 (b) is to be given a wider interpretation. It does not only
mean that a property of one should be taken over and distributed to others. It also includes
nationalization, which is an effective distribution process, as it prevents concentration of wealth
in a few hands and thus benefits the society at large.

73
M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699.
74
Vikram Dev Singh Tomar v. State of Bihar, AIR 1988 SC 1782; M.C. Mehta v. State of Tamil Nadu AIR 1997 SC
699.
75
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469.
Free and Compulsory Education for Children

Article 45 lays down that the State shall endeavor to provide, within a period of ten years from
the commencement of this Constitution, for free and compulsory education for all children until
they complete the age of fourteen years. The Directive contained in Article 45 has been held to
be a fundamental right forming part of the Right to life secured by Article 21. It implies that the
direction under Article 45 is not confined merely to primary education. It extends to the duty to
provide free education until the children attain the age of 14 years, whatever the stage of
education it may come to be.

The principles enshrined in Articles 41 and 45 are not only necessary, but also desirable, for the
performance of the State’s ultimate duty and responsibility, to provide education to all its
citizens, for an intelligent understanding of social and political problems by every citizen in a
democracy. Therefore Articles 29 and 30 which secure Cultural and Educational Rights to
minorities, the Court held, were to be read in the backdrop of Articles 41 and 45. By the 86th
Amendment Act, 2002 this directive in Article 45 of Free and compulsory education for children
has been given the status of fundamental right and can be enforced in the Court of law.

Speedy process as Justice

Speedy trial is the essence of both civil and criminal justice system. The speedy justice becomes
more meaningful in case of deprivation of liberty of accused person in the form rejection of bail.
Even though, the United States of America considers speedy trial as one of the constitutionally
guaranteed rights76, such a right became a fundamental right under Indian Constitution only
through the judicial interpretations.

The National Commission to Review the Working of Constitution (NCRWC), in its final report
suggested for incorporation of speedy trial as fundamental rights, the suggestion even included
the right of everyone to have dispute resolved by the application of law, to be decided in fair
public hearing before an independent court or impartial tribunal or forum 77. Further the right to

76
As a part of implementation process Speedy Trail Act 1974 was enacted in US of A.
77
Article 30 A to the Constitution of India http://legalservices.co.in/blogs/entry/Constitutional-visionto-access-to-
justice-in-india (Last visited on June 21 2023).
access to courts shall be deemed to be part of the right to reasonable, speedy and effective
justice. However, the Indian Judiciary is vocal as to speedy trial, especially in criminal processes.
Justice P.N. Bhagwati78 said ‘It is a crying shame upon our adjudicatory system which keeps men
in jail for years on end without a trial.’ Further the Mr Justice observed ‘... no one shall be
allowed to be confined in jail for more than a reasonable period of time ... we fail to understand
why our justice system has become so dehumanised that lawyers and judges do not feel a sense
of revolt at caging people in jail for years without trial.’ In another case Justice Krishna Iyer 79,
remarked, "Our justice system even in grave cases, suffers from slow motion syndrome which is
lethal to 'fair trial'…

In Hussainara Khatoon v. State of Bihar80 held that where under trial prisoners have been
languishing in jail for longer than maximum punishment. Their detention becomes totally
unjustified and violates fundamental rights under Article 21.

In the case Katar Singh v. State of Punjab81 it was declared that right to speedy trial is an
essential part of fundamental right to life and liberty.

In the case of Khatri v. State of Biha82r, the court held that the state is constitutionally bound to
provide legal aid not only at the stage of trial but also when they are first produced before the
magistrate or remanded from time to time. In addition to those continuous observations, the court
took up positive action and compelled as well as guided the legislature to come up with the
suitable legislations to bring justice to the doorsteps of the weakest sections of the society. Public
Interest Litigation is one of such shining example of contribution of Indian judiciary in
protecting the rights of Indian citizens especially the poor.

Economic Justice

Economic justice is somehow part of social justice itself; the Indian constitution visualizes socio-
economic justice as incorporated under Directive principles of state policy. Economic justice

78
Kadra Pehadiya v. State of Bihar AIR 1981 SC 939.
79
Babu Singh v. State of UP 1978 1 SCC 579.
80
AIR 1979 SC 1377.
81
(1994) 3 SCC 569.
82
(1981) 1 SCC 623.
means providing economic opportunity, economic equality and removing economic disabilities.
It is always implemented under the umbrella of Social Justice. Economic justice means there
should be economic equality among everyone in the society. There should not exist any
inequality among individuals based on their economic status. No one should be deprived of any
opportunity due to his/her economic status. Economic status of any person should not be
responsible for the lack of opportunities provided to him. Economic justice means eradication of
poverty by adding on to national wealth and resources and distributing this wealth equally among
everyone who contributes in its production.

Likewise, the social and political justice pledged by the Preamble of the Constitution to be
secured to all citizens, will remain a myth unless first economic justice is guaranteed to all. The
liberty of thought and expression also, will remain on paper in the face of economic deprivations.
A remunerative occupation is a means not only of economic upliftment but also of instilling in
the individual self-assurance, self-esteem and self-worthiness. It also accords him a status and
dignity as an independent and useful member of the society. It enables him to participate in the
affairs of the society without dependence on, or domination by, others, and on an equal plane
depending upon the nature, security and remuneration of the occupation. Employment is an
important, and by far the dominant remunerative occupation, and when it is with the
Government, semi-Government or Government controlled organization, it has an added edge. It
is coupled with power and prestige of varying degrees and nature, depending upon the
establishment and the post. The employment under the State, by itself, may many times help
achieve the triple goal of social, economic and political justice.83

Fundamental rights ensuring Economic justice

Preamble considered as soul of the Indian Constitution where it enunciates the main objectives of
the Indian Constitution which is to secure to all its citizens social, economic and political
justice.84 Fundamental rights provided in Part (iii) of the Indian Constitution, there are several
articles contained under this part which ensures the economic justice to its all citizens like Art
16, 19, 23 and 24 etc.

83
Indra Sawhney v. Union of India, AIR 1993 SC 477.
84
Supra note 21.
Article – 16 (Equality of opportunity in Public Employment)

Article 16 can be divided in two distinct parts, where in first parts it is ensured that every person
irrespective of his religion, race, caste, sex, decent, place of birth and residence will get the equal
opportunity in matters relating to employment or appointment of any office under state 85. On the
other hand in second part article 16 have the notion of equity and stated that state have the power
to make reservation for the backward class. The main reason behind reservation is the
heterogeneity and multifarious population because many of the peoples of country are lagging
behind in terms of culture, economy and education in comparison to others. Under Art–16 it is
given that there should be equality of opportunity for all citizens in matters relating to
employment or appointment of any office under the state, it also prohibits the discriminatory
process in respect of any employment under the state. However state is free to make any
provision for the reservation of appointments or posts in favor of nay backward class of citizens
which, in opinion of the state, is not adequately represented in the services under the state. In
simpler words Art-16 of the Indian constitution ensures that all its citizens will get the equal
opportunity to earn their livelihood in terms of economy. Main object of this article is to
facilitate the economic justice between peoples and eradicate the inequality in terms of
employment. Equality of opportunity of employment means equality as between members of the
same class of employees and not equality between members of separate, independent classes. 86
Basically it means that backward class peoples can be provided some sort of extra privilege in
respect of employment. If we look at the structure of the Article 16 of constitution, one can
clearly say that this article is fully devoted towards ensuring economic justice to its subjects. In
Indra Sawhney V. Union of India87, known as the Mandal Commission case, is a very significant
pronouncement of the Supreme Court of India on the question of reservation of posts for
backward classes. In this case court held that reservation cannot exceed 50% in any one year.88

Article – 19 (Right to Freedom regarding certain rights)

85
Id. at 967.
86
Id. at 965.
87
AIR 1993 SC 477: 1992 Supp (3) SCC 217.
88
M.P. Jain, Indian Constitutional Law 997 (LexisNexis, Wadhwa, 7th ed. 2016).
Article 19 of the Indian Constitution can be divided into two distinct parts from the point of view
of economic justice. The first one is relates to article 19 (1) (g), where it is given that all citizen
have the right to practise any profession, or to carry on any occupation, trade or business. Before
the 42nd amendment Indian constitution also have the right to property as fundamental right
however it repealed after the amendment. On the other hand second part comprised of article
19(6). Where state has the power to impose reasonable restriction upon the right ensured by the
19(1) (g). After 42nd amendment under Indian Constitution a new world was added in preamble
which is the ‘Socialist’. if we look at the strict meaning of socialist in terms of economy, it will
reflect that complete and rigorous state ownership as a matter of policy. However it does not
mean that total exclusion of private ownership from the means of production, In India there has
always been emphasis upon mixed economy which means that state will have ownership in
matters relating to means of production however it can only impose reasonable restriction upon
the private ownership.89 In different cases like Excel wear v. Union of India90Supreme court
clarifies that the word socialist will not recognizes the complete state ownership and government
will work as a mere facilitator rather than as a controller. However it does not mean that
government do not have the power to create it supremacy; in different cases like Akadasi Padhan
v. State of Orissa91, the Supreme Court upheld the validity of and Orissa law conferring
monopoly rights on the state in matter of trade in kendu leaves. State can create the monopoly in
the favor of its own but not in the favor of the third party 92, the profits arising from the sale must
be for the public benefits not for the benefits of the third party, Monoply in a commodity may be
valid if it is only for the benefit of the state. It should not serve the private interests of any one
person or classes of person.93

Article 19 (6) stated that state can impose reasonable restrictions, however there is question
comes to one’s mind is that what are there reasonable restrictions. Indian judiciary with the help
of different cases pronounced the valuable judgments where it laid downs the limit to which
extent a restriction can be posed by state. The factors which determine the reasonableness of a
restrictions are differ in every case according to its circumstances, there is no hard and fast rule is

89
Id. at 14.
90
AIR 1979 SC (36).
91
AIR 1963 SC 1074: 1963 Supp (2) SCR 691.
92
State of Rajsthan v. Mohanlal, AIR 1971 SC 2068 : (1971) 3 SCC 705.
93
Supra note 88.
there, however a restriction cannot be impose arbitrarily on the persons. In chintaman Rao94 The
Supreme Court laid down the test for reasonable restriction as follows “ the phrase reasonable
restriction connotes that the limitation imposed on a person in enjoyment of the right should not
be arbitrary or of an excessive nature beyond what is required in the intrest of the public. The
word reasonable implies intelligent care and deliberation, that is, the choice of a course which
reason dictates legislation which arbitrarily or excessively invades the right cannot said to
contain the quality of reasonableness and unless it strikes the proper balance between the
freedom gurantted by article 19 (1) (g) and the social control permitted by clause (6) of Article
19, it must be held to be wanting in that quality” 95 In Indian history there are cases where street
hawkers claim the right enshrined under Article 19(1) (g), however Court pronounced the some
rich judgments regarding to the right of street hawker to carry on their trade on public streets.
Cases like Bombay Hawakers Union v. Bombay Municipal Corporation 96, Sodan Singh v. New
Delhi Municipality97, Supreme Court draw out some points rights of Street Hawkers.

3. No one has a right to do business so as to cause annoyance or inconvienece to members

of public. Public streets are meant for use by the general public; they are not mean to
facilitate the carrying on of private trade or Business.98
4. Right to carry on trade or business mentioned under art 19 (1) (g) on street pavements.
They are meant for use by pedestrians, these pavements cannot used in any other manner.
Court stated that Street hawkers don not have fundamental right to occupy a particular
place on the pavement where they can squat and can do business. However court directed
that there should be hawking zones in the city where licenses should not be refused to a
Hawker.99

Article – 23 and 24 (Right against exploitation)

Whenever we look at the Article 23 and 24 of the Indian Constitution, all we have got is that
both of them one way and other prohibiting something, the first one is prohibiting human forced

94
Chintaman Rao v. state of Madhya Pradesh, AIR 1951 SC 118.
95
Supra Note 88 at 1075.
96
AIR 1985 SC 1206 : 1985 (3) SCC 528.
97
AIR 1989 SC 1988 : (1989) 4 SCC 455.
98
Supra note 95.
99
Ibid.
labour and second one prohibiting employment of children in factories. Both of these section on
the outer side looks like that they are serving social justice more than anything, however if we
pierce their shells we will get to know they are serving economic justice too. It is not explicitly
given there but manifested inherently.

Indian Constitution under article 23 seeks to prohibit the forced labour which ultimately leads to
economic justice to the peoples because no one has the right to exploit others economically.
Forced labour refers to a person who is forced to render his service without any remuneration at
all. In People’s Union for Democratic Rights v. Union of India 100, Supreme Court of India
prohibited the every form of forced labour and provided justice to peoples economically. In this
case Supreme Court of India broadened the horizon of term Forced labour, prohibiting the every
form of it. A forced labour arise from different forms “The word ‘Force’ must therefore be
construed to include not only physical or legal force but also force arising from compulsion of
economic circumstances which leaves no choice of alternatives to a person in want and compels
him to provide labour or service even though the remuneration received for it is less than
minimum wage.”101

In the words of Bhagawati, J,:

“Where a person is suffering from hunger or starvation, when he has no means to feed his wife
and children or even to hide their nakedness, where utter poverty has broken his back and forced
him into the state of helplessness. In such kind of situations if any time of work comes his way
irrespective of its remuneration, he have to accept it because he is not in the position to bargain
with employer. And in doing so he would be not acting as free agent but under such compulsion
of economic circumstances and the labour or service provided by him would be clearly Forced
Labour’.”102

Article 23 is also seek to prohibit bonded labour which means that one person is bonded to
provide labour to another for years and years until a debt is supposed to be wiped out. The
bonded labour is designed to enable a few socially and economically powerful persons to exploit

100
AIR 1982 SC 1473 : (1982) 3 SCC 235.
101
Supra note 88 at 1235.
102
Ibid.
weaker section of the society which ultimately lead to economic injustice to the exploited
peoples.103 There are the cases where Indian judiciary pronounced the valuable judgments
regarding to bonded labour. In Bandhua Mukti Morcha v. Union of India104 Supreme Court
observed that “the concept of bonded labour is totally incompatible with the new egalitarian
socioeconomic order which we have promised to build and it is not only an affront to basic
human dignity but also constitutes gross and revolting violation of constitutional values.”

We can say that Article 23 is the best article to securing economic justice because it tries to put
weaker section of society to equal footing as other section of society and ensuring them
economic justice. Judiciary interpreted this article in such a way that this article not only
prohibits the bonded labour but also making obligation on the state for the rehabilitation of the
freed bonded labourers.105

Article 24 is also dealing with Economic exploitation however it is limited to children’s. This
article seeks to ban the child labour in the country however it is realized that a total ban on child
labour may not be socially feasible to the Indian society because of its gross poverty. It only
prohibits the employment of the child below the 14 year to work in any factory or mine, or in any
other hazardous employment. In cases like Laborers Working on Salal Hydro project v. State of
Jammu and Kashmir106 and M.C. Mehta v. State of Tamil Nadu107 Indian Judiciary have made his
stand against the Child Labour and seeks to alleviate the condition of poor child’s. This article is
also serving people to economic justice, because of child labour prohibition, child will not go to
work and he will receive free education by the state which ensures economic justice because they
are getting equal opportunity to create economic means to survive.

Ensuring Economic Justice through Directive Principle of State Policy

Art – 38 (State to secure a social order for the promotion of welfare of the
people)

103
Id. at 1238.
104
AIR 1984 SC 802 : (1984) 3 SCC 161.
105
Neeraja Chaudhary v. State of Madhya Pradesh AIR 1984 SC 1099 : (1984) 3 SCC 243.
106
AIR 1984 SC 177 : (1983) 2 SCC 181.
107
(1996) 6 SCC 756 : AIR 1997 SC 699.
The directive principle of state policy seek to give direction to the government and legislatures in
India as to how and in what manner and for what purpose, they are to exercise their power
however these principles are non-enforceable against state unlike fundamental rights. Article 38
(1) directs the state to strive “To promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, socio, economic and political, shall inform
all the institutions of the national life.” Somehow article 38 is reaffirming the main object of the
preamble of Indian Constitution viz,. The function of the republic is to secure social, economic
and political justice for its citizen and it clearly enshrined in our preamble. 108

Article 38 (2) putting the obligation upon the state to minimize the inequalities in income,
inequality in status and facility and opportunity to everyone without any discrimination. We can
infer from the structure of Article 38(2) that it clearly framed to provide economic justice
because it seeks to eliminate income and opportunities inequality to the peoples of India. In Sri
Srinivasa theatre v. Govt. of Tamil Nadu,109 Supreme Court envisaged the notion of equality
under article 38 “Equality before law is a very dynamic concept having many facets and it will
not be possible to ensure equality before law without equality in society.” Supreme Court has
pointed that state has all power to equalize the society including taxation and other policies. The
great burden of taxation is put upon the rich to equalize the society. Article 38 is mainly dealing
with the social justice however it serves economic justice too like providing equality in income
have two facets, first one is that it will leads to the economic justice on the other hand impliedly
it ensuring social justice because equality in income will bring equality in status.

Art – 39 (Certain Principles of policy to be followed by state)

Article 39 of the Indian Constitution, explicitly showing traces of economic justice, this article
requires the state, to direct its policy toward securing some of the rights of people which can
benefit them economically. Supreme court has taken recourse to Article 39(a) to interpret with
Article 21 and observed that “Any person who is deprived of his right to livelihood except

108
Supra note 88 at 1416.
109
AIR 1992 SC 999, 1004 : (1992) 2 SCC 643.
according to just and fair procedure established by law, can challenge the deprivation of the as
offending the right to life conferred by article 21”110

Article 39(b) and (c) is ensuring distribution of ownership or distributive economic system, these
provisions are so significant as they can affect entire economy of India. This article is the classic
example of the socialism under the Indian constitution where it seeks to provide economic
justice. The expression material resources of the community under article 39(b) covers the land
held by private owners also. Government can take the private lands for the development of the
community like in making roads, drains, playground etc. 111 A socialistic state always seeks to
provide socio-economic justice to its subjects.

Article 39(d) is also ensuring the principle of equal pay and equal work. It stated that it is the
duty of the state to provide equal wages for equal work irrespective of gender. Supreme Court
stated that though the principle of equal pay for equal work is not expressely declared by the
constitution to be a fundamental right yet it may be deduced by construing article 14, 16 and
39(d). The word socialist at least mean equal pay for equal work for the people. In a case Girh
Kalyan Kendra v, Union of India,112 it is observed that “Equal pay for equal work doctrine will
be applied widely to stop discriminatory practices.” Men and women both will receive equal pay
for their equal work and no one can discriminate between them in terms of gender Court also
made clarification that doctrine of equal pay and equal work was originally propounded in
directive principle of state policy, however this doctrine has assumed the status of a fundamental
right under article 15 and 16 of the Indian constitution. Even in Randhir Singh v. Union of
India113 the Supreme Court of India was held that doctrine of equal pay for equal work though
not a fundamental right is certainly a constitutional goal and, therefore, capable of enforcement
through constitutional remedies under article 32 of the Indian constitution. We can lucidly infer
from this article is that it is devoted to it people to ensure economic justice.
110
Supra note 88 at 1418.
111
Dr. J.N. Pandey, Constitutional Law of India 445 (Central Law Agency, 52nd edition, 2015).
112
AIR 1991 SC 1173, 1176 : (1991) 1 SCC 619. .
113
Supra note 111 at 447.
Art – 43 (Living wage, etc., for worker)

Principles which enunciated by the draftsman of Indian constitution in Article 43 shows that they
felt a deep concern for the welfare of the workers in terms of economic matter. This article
require the state to endeavor to secure, by suitable legislation, or economic organization, or in
any other way, to all workers, agricultural, industrial or otherwise, work, a living conditions or
work ensuring descent lifestyle and social and cultural opportunities. 114 This provision enunciates
the revolutionary doctrine that employees have right to certain reliefs and saving them from any
kind of economic exploitation. Article 43 refers to a “living wage” and not “minimum wage”.
The concept of living wage includes in addition to the bare necessities of life, such as food,
shelter and clothing, provision of education of children and insurance. 115 Supreme Court of India
gave much more importance to this article in D.S. Nakara v. Union of India116, the constitution
bench of the Supreme Court has held that “Pension is not only compensation for loyal service
rendered in the past, but also by the broader significance it is a social welfare measure rendering
socio-economic justice by providing economic security in fall of life when physical and prowess
is ebbing corresponding to aging process.”117

Under this Article Court bring the idea of socialism again to ensure economic justice to its
people. According to the court, the principle aim of the socialism state is to eliminate economic
inequality prevailing under the state and if the state is not able to provide living wage to the
employees how it is going to setup a welfare state. This article also seeks to prevent economic
exploitation of the employer. In a case M.R.F. Ltd. v. Inspector118, Kerala Government before
Supreme Court observed that it is not the philosophy of the article 43 that industrial or
agricultural workers should work on all days. It is necessary that they also enjoy some holidays.
As human beings, they are entitled to a period of rest which would enable them to fully enjoy
their leisure and participate in social and cultural activities.119

114
Supra note 88 at 1428.
115
Supra note 111 at 449.
116
AIR 1983 SC 130 : (1983) 1 SCC 305.
117
Supra note 88 at 1429.
118
AIR 1999 SC 188 : (1998) 8 SCC 227.
119
Supra note 88 at 1430.
Art – 46 (Promotion of educational and economic interests of Scheduled
castes, Schedule tribes and other weaker sections)

India is a country of religion. There exist multifarious religious groups in the country and there
population of India is so heterogeneous. Article 46 of the Indian constitution made obligation
upon the state to promote weaker section of the society with utmost care and to protect them
from social and economic injustice and all forms of exploitation. The Supreme court observed
that expression ‘weaker section’ in article 46 is much broader than ‘backward classes’ because
the last one includes people who are socially, educationally and economically backward and
people who are not represented adequately in the service under the state. However term weaker
section can also take within its compass individuals who constitute weaker section or weaker
parts of the society. The Supreme Court also observed that Article 46 has notion of distributive
justice because it seeks to protect and preserve the economic interests of persons belonging to
schedule castes and schedule tribes.

In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan 120, Supreme court clarified
that “Article 38, 39 and 46 mandate the state, as its economic policy, to provide socio economic
justice to minimize inequalities in income and in opportunities and status and further stated that
state is under the obligation to work for the welfare of the society and to make socio-economic
justice a reality, meaningful and fruitful so as to make the life worth living with dignity.” 121
There is nothing to infer from this article because everything explicitly is given in the article
even Supreme Court, also gave the utmost importance to this article and consider this article as a
sign of economic justice to its subject.

Political justice

Political Justice means a system free from political arbitrariness. There should be political
fairness in the working of the government. Political status of any person should not give him any

120
AIR 1997 SC 152 : (1997) 11 SCC 121.
121
Supra note 1434.
advantage and he/she should be treated like every other citizen. Every law should be equally
applicable to every person irrespective of his political status.

All citizens equally share the political power in the state so that they become able to take part in
administration and thus enjoys all types of political freedoms. According to article 326 of the
Indian constitution, every citizen has right to exercise his right to vote and to elect his
representatives without any kind of limitations after a certain age. Furthermore some other

provisions have also been made for the enjoyment of political justice through the Part 3rd and

part 4th of our constitution.

They are:

(a) Right to Hold Public Office: Political justice can be made if all the people are given equal
rights to occupy public offices.

(b) Right to criticise the government: Our constitution makers enriches the constitution with the
freedom to have a right to express their views. Through this way every Indian citizen achieves
the right to criticise the government and thus plays a role in making a responsible government.
This right is necessary since criticism is treated as the backbone of democracy.

(c) Right to form Political organisations: Constitution of India provides the persons a right to
form political organization’s for the protection of their interests.

(d) Right to Protest: Our constitution also provides the citizens with the right to protest. They can
exhibit their protest against the government by means of processions, strikes, rallies and public
meetings etc.

(e) Protection of Rights: In order to achieve political justice it is essential that the rights of all
citizens should be protected equally. Article 32 of the Indian constitution provides protection for
rights of citizens.

Provisions for justice under Other legislations

Recent trends towards fast Justice Delivery System

Introduction

Justice delivery system is an action in which government’s legal structure is performed. The
assumed goal of the Justice delivery system is to provide justice to all those who want to access
the legal system. Justice Delivery system is the basis of rule of law and governance in a society.
The concept of justice is as old as reason and growth of human society is. The two most essential
functions of any state are; war and administration of justice and if the state is not able to perform
these functions then it cannot be rightly called as state. Justice is a concept of moral rightness,
based on ethics, morals, rationality, natural law, religion, equity and unbiased. In ancient society,
Law was divided in two categories i.e. Laws set by God for man and laws made by man for man.
There are various types of justice. There are merits and demerits of all modes of justice. 122
122
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory 164 (Central Law Agency, Allahabad, 5th Edn.
2008).
According to Blackstone, justice is the source from where the idea of right, duty and equity
evolves. Salmond also has opined that though every man wants others to be righteous and just to
him but he himself being ‘selfish’ by nature may not be reciprocal in responding justly. That is
why, he emphasizes that some kind of external force is necessary for maintaining an order in
society. According to Salmond, without justice, an orderly society is unimaginable.123

The concept of justice has become more discernible with the growth of state, which ensures
justice to the people with the sanction of law. With the development of law, the concept of
Justice also enlarged its facets to different fields of human activities. For example, in modern-
day, we have civil Justice, criminal justice, economic, social Justice and so on. The essence of
the legal justice lies in ensuring uniformity and certainty in law and that the rights and duties of
each other are duly respected by the people. In other words, the citizens are expected to shape
their conduct in such a way that they can ensure that they must not violate the rights of other
persons and at the same time, they abide by the duties imposed upon them by the law.124

The Indian justice delivery system is largely based on the British pattern of justice delivery
system. During the British rule in India, the then existing Indian judicial system encountered
several major changes. In the beginning, the Courts set up by the East India Company were
exclusively managed by the executive. Thereafter, a new judicial system was introduced in the
presidency town of Bombay, Madras and Calcutta which was also later on replaced by the
Supreme Court. At that time, the Chief Justice and other judges of Supreme Court were holding
office only during the pleasure of the British Crown. The Supreme Courts were eventually
replaced by the High Courts in the year 1862, consequent to the enactment of the High Court
Act, 1861. Under the Government of India Act, 1935, a Federal Court was established at Delhi in
the year 1937, which after the independence, was designated as the Supreme Court of India.125

In India, judicial and extra judicial remedies of Justice are the remedies which an aggrieved
person can avail. Judicial remedies can be availed only through the Courts whereas extra judicial
remedies can be availed by any other medium but not the Courts. In the Court system, proper
procedure is followed by the Court with the assistance of advocates and parties. There are merits
as well as demerits of this procedure. This procedure takes time because Courts are
123
Ibid.
124
Ibid.
125
Id. at 117.
overburdened with lot of cases. The extra judicial remedies are provided in the form of
arbitration, conciliation, negotiation, mediation and Lok Adalat. Judicial remedies are very rigid
while extra judicial remedies are very flexible. Under the course of judicial remedy, appeal can
be filed but in extra judicial remedy, the decision of concerned authority is final and binding on
the parties to the case.

The word “Justice” is the harmonious settlement of individual behaviour with the general welfare of the
society. An act or behaviour of a person is said to be just if it encourages the general well-being of the
society. Hence, the accomplishment of the common good as distinguished from the good of individuals,
is the essence of justice.126

Justice is a theoretical concept and it is discussed in different areas of knowledge including law,
philosophy, economics and administration. It is not easy to define the word ‘Justice’. According
to Hans Kelson, no other question than the meaning of justice has been the object of so much
thorough thinking by the most renowned thinkers, from Plato to Kant, and till now but this
question is still unanswered, as it ever was. In a way, the act of doing justice relates to
pronouncing of decisions on the freedom, and often on the life, of human beings. At the broader
level of society, administration of justice means maintaining the social structure in harmonious
operations.

John Rawl, popular American political philosopher, while observing the importance of Justice
has said that Justice is the first virtue of social institutions. Justice has always been the main ideal
of humanity. It has been the resting wish behind all social agitations. 127 That all those who want
to change the old system, and those who defend the old system, and those who have neutral
voice, want peace at any cost and they all do so in the name of justice. Justice provides support
for the most supreme sacrifices as well as for the worst work.128

Justice under various names such as nature, logic, conscience, economy, humanity, science,
morals, history, politics, literature and art etc., governs the world. Whatever name may be given
to ‘justice’, it is the earliest in the human soul, most fundamental in society and most sacred
among the ideas. It is the essence of religion, the sum total of reason and the secret object of faith
126
Narender Kumar, Constitutional Law of India 39 (Allahabad Law Agency, Faridabad, 10th Ed. 2018).
127
John Rawls, A Theory of Justice 3 (Harvard University Press, Cambridge, 1st Revised Ed. 1999).

128
V.R. Krishna Iyer, Indian Social Justice in Crisis 16 (Affiliated East-West Press, 1st Edn. 1983).
and knowledge. Nothing can be imagined more strong, universal and complete than justice.
Justice is established on the fact what the majority of right thinking people regard as fair. 129

The Supreme Court of India has also defined the expression ‘Justice’ in many of its
pronouncements. For instance, in the case of Girimallappa v. The Special Land Acquisition
Officer M and MIP and Another130, the Supreme Court held that justice is an illusion as the
meaning and definition of justice varies from person to person, party to party and circumstances
to circumstances. The party feels having got justice only and only if it succeeds before the Court,
though, it may not have a justifiable claim

The Supreme Court also explained that Justice is the virtue by which the Society or Court or
Tribunal gives to a man what is his due, opposed to injury or wrong. Justice is an activity of
rendering what is right and equitable with regard to one who has suffered a wrong. Therefore,
before delivering justice, the Court has to be very cautious that it has to do justice in exact
compliance of some obligatory law for the reason that human actions are found to be just or
unjust.131

Judges are not the law makers and it is not their duty to correct and explain the defective
provisions of law. Their only function is to administer the law of the country. It is correctly said
that in modern times, the administration of justice, as per law is commonly considered as
implying recognition of fixed rules.132

A few instances can be given to show what we understand by justice according to law. A creditor
has to realise some money from a debtor. However, he files the suit after lapse of three years.
Thus, equity may be on his side but his suit must fail on account of the law of limitation, which
specifies that a suit for recovery must be filed within three years. Likewise, a person may have
actually committed a murder. He may confess his guilt before a police officer who is an honest
man but still he cannot be convicted as the law does not admit the confession made to a police
officer.133 If he is convicted on the basis of his confession before the police officer, his conviction

129
Perelman Chain, Justice, law and arrangement, Springer, Netherlands, 1st Edn. 1980.
130
AIR 2012 SC 2012.
131
Ibid.
132
Dr. V.D. Mahajan, Jurisprudence and Legal Theory 133 (Eastern Book Company, Lucknow, 5th Edn. Reprint
1993).
133
Ibid
has to be set aside as it is opposed to the law of the country. Hence, even if, a guilty person is
escaped, judges are not cared about it. They do not play and are not expected to play the role of
legislators. If a law is defective, it is the duty of the people to demand from their legislators to
correct the said defective law. However, so long as a particular law is on the statute book, the
same has to be enforced, unmindful of the consequences. Law may be blind and hence, justice
also becomes blind, but there is no help for it. Judges are expected to deliver justice according to
the law of the land and not according to what they consider to be just under the particular
circumstances.134

In the same context, Dicey has called the concept of justice as ‘Rule of Law’. Law and justice
apply to all without any differentiation whatsoever. He explained that no one is above the law.
From this point of view, he does not consider it important to distinguish between civil and
criminal justice and treats them as violations of public justice.135

Man is always selfish by nature and therefore, some kind of external forceful authority is always
needed to keep him within his limits and check his unhindered liberty. Limitless and unhindered
liberty could lead to a state of anarchy and chaos. In its proper meaning, liberty consists of power
to do everything which does not injure another. In the words of Herbert Spencer every man is
free to do what he wishes to do provided he must not infringe the equal freedom of any other
man. Thus, liberty connotes freedom of action as long as it is permitted by law. It, therefore,
follows that legal liberty depends on the presence of the authority of the State.

As discussed above, the two supreme functions of a State are; war and administration of justice.
If a State cannot perform either or both of these functions, it cannot be called as a State. Salmond
has defined administration of justice as the maintenance of right with in a political community by
means of the physical force of the state. It is a civilised substitute for the primitive practice of
private vengeance and violent self-help.136

There are lot numbers of other factors also, such as the social sanctions, habit and convenience
etc. which helps in the obedience of law. In a civılised society, obedience to law becomes a
matter of habit and in very rare cases, the force of the State is required to secure it. Those who

134
Ibid.
135
Id at 165.
136
Supra note 132 at 133.
supports the definition of Administration of justice as propounded by Salmond points out that
even if the force of the State is not used in any case to secure obedience to law, it does not mean
that the control of the State has vanished whereas it merely indicates the final victory and
supremacy of the control of the State over it masses.137

Jeremy Taylor has quoted that a herd of wolves is quieter and more at one than so many men,
unless they had all one reason in them, or have all one power over them. Baruch Spinoza also
writes that those who convince themselves that a multitude of men can be induced to live by the
rule of reason are dreamers of dreams and of the golden age of poets. Hobbes further says that
without a common power to keep all of them in fear, it is not possible for individuals to live in
society. Without it, injustice is unchecked and triumphant and the life of the people is solitary,
poor, nasty, brutish and short.138 Salmond points out that man do not have one reason in them and
each is moved by his own interests and passions.139

The only alternative is one power over men. By nature, man is a fighting animal and force is the
ultimate ratio of all mankind. In the earliest form of society also, it was impossible for men to
cohabit together without the power of a common man. Without it, civilisation is unattainable. No
matter, how much an orderly a society may be, the element of force always remain present and
operative in it. Though, it may become latent but it still exists. The mere fact that in a society, the
power of the State is never called into actual exercise, does not mean that the control of the
government has disappeared or vanished whereas it only refer to the final triumph and
supremacy of the state over it masses. It is always proclaimed that in the development of a
perfect civilization, force as an instrument for the correction of mankind is merely a temporary
and provisional incident. Already, to a larger extent, the element of force has become latent only
as for the most part, it is sufficient for the State to declare the rights and duties of its subjects.

The increasing popularity of the cases for mere declaration, which do not seek any other relief
except the declaration of law or the rights of the parties, is clear indication that force of state,
though exists but it has become latent only. The force of public opinion is always very valuable
support and for a system of law, it is very much indispensable because without it there can be no
stability and permanence. However, public opinion alone, cannot be a substitute for legal
137
Id at P. 129.
138
Ibid.
139
Ibid.
sanctions. The authority of public censure is a very weak one. The influence of the national
conscience, unsupported by the force of the State, can be retaliated even by small societies or
associations possessing separate interests and separate opposed conscience of their own. In
general, man cares more for the opinion of his friends and immediate associates than for the
opinion of entire world.

Social sanction works as an efficient instrument only if it is duly associated with and
supplemented by the intensive and desired force of the society. To compel the obstinate minority
and prevent them from gaining an unfair advantage over the law-abiding majority in a State,
force is very necessary. In other words, it can be said that there can be no administration of
justice without the sanction of the physical force of the State.

Delayed justice is much discussed issue. The two issues are very serious so we must put our
intentions to understand these issues. The first issue is docket exclusion the meaning of this term
is the injustice suffered by those who lacked the wherewithal to access the justice and secondly
succumbing en route the meaning of this term is that those who come to the court after waiting
for few years and despite being in the right, give up that is abandon as they are unable to bear the
cost and delay.

The first problem is called “docket exclusion” has got the attention from the scholars but the
second problem called “succumbing en route” is not a problem recognized much in the
developed nations and this is the reason that jurisprudence has not much recognisation of this
issue as much as the recognisation of the first issue is there. Therefore jurisprudence has not
addressed this issue. In our country, though the problem is recognized but still it is not much
discussed in academic resources. India is a nation governed by the rule of law. The concept of
rule of law is the principle that says that no one is above the law. In our country everything is
dependent upon it whether our economic growth or our stability of our government. The
meaning of the term rule of law has a very wide meaning and it also include number of things for
the confidence of the people in the democratic setup and the quality of the democracy.

The civilized society is dependent upon the “rule of law” as it establish a transparent process
which is accessible by all and equal to all it provides security to all the persons and their
property. Accessibility and effectiveness of justice is an important concept of the rule of law.
The economic growth rate of the any country is dependent upon the quality of law and the justice
delivery system and the economic growth is allocated upon the fact that what a person can

achieve in the terms of freedom from the poverty and how he can improve his life. The right to
life of a person includes the right of clean drinking water and the right of having basic health
care the right to have basic health care the right to housing the right to education and the right to

the development and other similar rights. The rule of law also required the reasonable
opportunity of employment, these rights are essential for the citizens so that they may have faith

in the whole course of the delivery of the justice by our system. The question must be asked by

us to our own selves that what the ground realities of the justice delivery system are. If there is

an access to justice only then the fair distribution of social goods and the services of citizen is
possible.

In India all are entitled to the justice whether he is rich and he can afford the expensive lawyer
and incur other expenses or he is poor or the common man of the nation. The value to justice to
him cannot be measured in terms of the money he can spend to get the justice as no one can be
denied to get the justice because of the poor economic condition of that person or any other
disabilities.

The Indian judicial process is now com m only associated with inordinate delay. The entire court
system is overburdened with cases and the slow disposal rate of cases greatly hampers the
quality of justice delivered. The reasons for delay are numerous and stem from very layer of the
justice system. There is a system is failure to address the Issue of efficiency of the judicial
process. The problem lies not only in the lack of institutional facilities, but also in the very
mindset of the legal community.

For efficient functioning of any legal system in the country, the fundamental requisite is that
such system shall be built on the aspirations of the people, law or legal system. People always
turn to the judiciary in quest of justice. But, is our justice delivery system effective and efficient
to provide justice to the people? The Indian judicial process is now commonly associated with
inordinate delay. The entire court system is overburdened with cases and the slow disposal rate
of cases greatly hampers the quality of justice delivered. The reasons for delay are numerous and
stem from very layer of the justice system. There is a systemic failure to address the Issue of
efficiency of the judicial process. The problem lies not only in the lack of institutional facilities,
but also in the very mindset of the legal community.

The Apex court thus held that right to speedy trial is a fundamental right. In spite of this
recognition of speedy trial as a fundamental right repeatedly in many cases by the Apex court,
for various reasons, the pendency in the different courts in the country to pile up delaying of
justice. In a written statement to the Rajya Sabha, Minister of Justice and Law said over 5.02
crore cases were pending in various courts -- the Supreme Court, the 25 high courts and
subordinate courts.

Given the pervasive nature of the problem , which has now simply come to be accepted as
corollary of the justice system , a range of reform is required legal institutional and technical.
This has been widely noted among political and judicial circles.

It is not that the efforts are not done to improve the situation. Judiciary tried several measures to
reduce pendency, which include holding Lok Adalats, holding conciliation courts, directing
stoppage of proceedings etc. The legislature tried their way by framing new statute of arbitration,
by amending procedural laws, by establishing new courts etc. The Ministry of Law and Justice
launched the National Mission for Justice Delivery and Legal Reform s in 2011 with this very
goal in mind. Some measures towards legal reform have already been taken by the Parliament.
Amendment of the Negotiable Instruments Act, 1881, to reduce the enormous number of cheque
bounce cases and amendment of the Motor Vehicles Act, 1988, to reduce litigation related to
challans are being considered. However, these changes do not address the root cause of the
travails that plague the judicial system.

It has thus became necessary to search for the causes of delay and after diagnosis of the causes
suggest efficient remedies which will help judges, advocates, legislators and litigants compose a
vibrant justice delivery system , which will make the sense that speedy trail is a fundamental
right enshrined under Article 21 of the Constitution. The path is not so simple. The country
started its journey with a well researched Constitution, however somehow, at least in case of
justice delivery system, our condition became that of a person who forgets his direction when he
is half way through and stares desperately and bewilderly at the maize of the roads ahead of
him. As justice Krishna Iyer says, we reached a grim situation. He speaks; “The whole system is
in the intensive care unit and creative surgery without looking back to the musty precedents be
now tried.”140

While suggesting remedies we also have to keep in mind a proverb, “Justice hurried implies
justice buried”. Speedy disposal of cases should not be construed to mean that cases should be
disposed of quickly to the detriment of justice. Considering the situation it can be said that
primary responsibility will be on the judges to see that justice should be imparted quickly but at
the same time judiciously. At the same time, the lawyers should have to develop in them
professionalism, uprightness and technical abilities to handle computers and other electronic
gadgets. Above all the society has to develop a sense to coexist reducing the chance of
confrontation and thereby reducing the chances of litigation.

Along with it the society has to develop ways and means to settle the disputes and learn to utilize
its precious time for developing themselves and ultimately to mankind. No doubt this will take a
long time, but this new social order has to come in existence as a new era in the development of
the human society.

Emerging Issues and Challenges

RESPONSIBLE FACTORS FOR THE DELAY

Shri K. R. Narayanan, our former Hon’ble President in the year of 1998, observed:

“A combination of factors has conspired to make law a time-consuming processthe intricacies of

procedures, the ingenuity of lawyers in prolonging cases, even the ' indifference of Judges and
the unending process of appeals.”141

The delay to get the justice no doubt has become the big problem and the fault can be seen in all
the stakeholders of the Justice Delivery System i.e. Legislators, Executive, Judiciary, advocates
and the parties of the litigation (accused, victims and witnesses). The general public and even the

140
Supra note 3
141
Shri K. R. Narayanan, our former Hon’ble President, while inaugurating the All India Seminar on Judicial
Reforms December 1998.
officers who are appointed to provide the justice throw the blame on the judiciary alone, which is
not correct on the face of it. All the organs of the Justice Delivery System are to be blamed as
they are all liable to some point or the other and each of them intentionally or unintentionally are
contributing in the delays, which finally, is resulting in the general saying, “Justice delayed is
justice denied”.

The single instrument of the justice delivery system cannot be blamed for the delay in the
delivery of the justice because there are some factors such as malfunctioning and
mismanagement of different elements of the Justice delivery System. The corruption by the
officers appointed to deliver justice and the lack of the commitment on the part the different
organs are the main factors which is accountable for the hindrance in the justice.

Independent India was the dream of the Indians that the independent India will provide the
system of governance which would be just, fair, efficient and responsive. Auspiciously, they are
not alive to see the result of their dreams. India which was known for their philosophy and
culture and religion is now known for the poverty and the non performance it is not only
surprising but also disgusting that some bad politicians who are power hungry has destroyed
the dream of our past leaders such as Gandhi, Nehru, Subhash, Patel and others.

Now question arises that what is the meaning of the corruption in the justice delivery system and
the answer of this question is that the corruption means perversion of the character or duty out of
mercenary motives with regard to the right or justice. The problem of corruption is dangerous as
because of the corruption the general public lose their faith from the justice delivery system.
Citizens are exploited by the public servant and they use their legitimate power in illegitimate
way. For a number of years the judiciary has enjoyed the benefit of the reputation of honesty and
integrity but recently we can saw the change in the whole scenario and number of cases came in
the knowledge of the general public in which the corruption by the judicial department is caught.
The term corruption has a very wide meaning as it does not include only those cases in which
one officer take bribe but it also includes unnecessary favor because of the nepotism and because
of the cast or religion as if the judge became biased because of the cast.142

142
Alladi Kuppusvvami, “Some thoughts on Judicial reform”, Indian Bar Review, Vol.10 (3), 432 (1983).
In India the law is made by the parliament as it is the will of the people which is to given
preference but our legislature has been lagging far behind in feeling the pulse of the people. The
unnecessary and the less important matters became the topic of discussions. Many a time the
unnecessary and antiquated laws ultimately results into law’s delays.

The executive is also equally responsible for the delay in the justice delivery system because of
the dishonest and injudicious actions and by passing illegal and arbitrary decisions. This type of
the executive results in the unwanted congestion in the courts. Indian government is the biggest
litigant in the Indian justice delivery system. The non cooperative behavior of the executive is
also big reason for the justice delays.

In the BMW case and Hawala case etc. the role of the prosecution is not up to mark as
prosecution is acting as the handmade of the leaders by protecting their interests, the public
prosecutors are the big reason in these cases for causing delay. When Justice Reddy was the
Chairman of the Law Commission he has rightly observed that.143

The Criminal Justice System is not working properly and the big reason for that are the
incompetence and the corruption in the prosecution agencies. He further adds: “It will be
misleading to blame the court and the judges for the low conviction rate as if proper evidences
are not available then judges cannot do much about it and this is the reason that the justice in the
courts of India has become the myth”.144

The responsibilities of the lawyers are also there for the delay in the process of law. The good
advocate is the one who try to nip the litigation in the bud by giving best advice to his client but
sadly no lawyer is willing to advice his client to not to go to the court on the other hand number
of advocates try to postpone the matter in the court during the litigation by dilatory means and
methods.

The persons engaged in the litigation whether victim or accused or the witnesses are also
responsible somehow for the delay in justice. They also adopts all types of dilatory tactics. The
slow approach of the officers of the different agencies is also the big problem and the reason for

143
Shalu Nigam, "Is Criminal Justice system in India Really Protecting Human Rights', Legal News and Flews.
(December 2000)
144
Ibid at 3.
the slow process of the justice delivery system in India. The whole system of the justice delivery
is responsible for delay as they have become the web of the corruption, inefficiency and
bureaucratic hurdles whether trial or the appellate court, police, prosecution or the prison and the
correctional administration

One of the reasons that we are facing problems in our justice delivery system is the heavy work
load in all of the courts and the vacant post of the judges for a long period of time. Other things
which multiplying the cost of justice is the dilatory practice of the authorities and also the
lawyer’s strike and commercialization of the advocacy profession. It will not be an overstatement
if one will say that now the process to get the justice has become more costly and is beyond the
reach of a common man.

THE MAIN CAUSES OF DELAY

AT LEGISLATIVE LEVEL

In the democracy the one of the most important function is to make the laws. In India the
legislators performs this function. But the problem is this that the most of the legislators of
our nation is illiterate or unable to understand the nature of the law. The problem has become
more critical when the criminal elements entered in the politics. Our democracy is now days
became the mobocracy as in our democracy the majority rule prevails without calculating the
basic knowledge of the individuals on the basis of their qualifications and the understanding
and after they know what is the nature of law. Accordingly, the candidates contesting the
elections use all resources for winning elections like booth-capturing, purchase of votes and
other violent activities etc. This shows that our legislature includes some of those leaders
who has criminal backgrounds or some leaders are illiterate and some of them do not have
any idea about the nature of the law so it is difficult to achieve the constitutional and
humanistic goals of justice and it is also the big problem and reason for the delay in the
justice.

POOR, AMBIGUOUS AND VAGUE DRAFTING OF LAW

 Many a times, the law makers do not make laws in the right way and because of this the right
of the people continues to be violated. The laws are ambiguously and poorly drafted that it
became unable to serve its purpose. In Minerva Mills Limited v. Union of India 145 Mr. Justice
P.N. Bhagwati has rightly and aptly observed: “This slovenliness in drafting is becoming
rather common these days. The legislation is also big reason for the delay in justice not in
only this way but also in other ways”.

No one can deny that the legislature is an art means to draft is an art which has to be learnt
and mastered and the person who should be given this task must be the person who know the
nature of the law or at least he must have the experience and only experienced men should

get the drafting work. The courts has to repugnant many of the law on the grounds that these

are repugnant to the provision of the constitution. Some times because of the vagueness or

the ambiguity of the language it became very difficult to the court to interpret the law and to
understand the real intention of the legislature. Such types of law cause delay in justice.

OUTDATED LAWS

The old laws has lost their sprit and the object and the purpose why they are drafted as they
are not amended in another word they have become meaningless. Even today there is some
law in the existence in which the punishment is only fine and that too for the ten rupees. No
one can see these types of provisions as the punishment as the deterrent effect is not there.

The principles of the law were made by the judges in ancient times and especially in the 19th
century. The provisions made by them at that time may justify the social conditions of that
time but there are number of laws which are not relevant in present time. The outdated laws
need to be re codified so that the law must serve the purpose and the needs of our times. Lord
Denning has said: “Times after times I have suggested that present law is mistaken and in the
need of reform. It should be altered so as to secure as near as may be the doing of justice”.146

145
AIR 1980 SC 1789
146
Caldwell, “Foundation of Law Enforcement and Criminal Justice” 205 (Eastern Book Company, Lucknow,
1977).
 AT JUDICIAL LEVEL

Our judicial system is also somehow accountable for the postponement in the justice and the
delay in justice causes bad impact in the faith for the whole process in the mind of
individuals. The judicial system in India we have is the legacy of the British rule which is an
adversary system which is used to establish the guilt of the person facing accusation or

sometime his innocence. In the current period the litigation drags on for many years. It is the
great hardship for the victim or the accused and also to the society that the justice delivery
system. The accused who is not on bail but the person is in the jail for a long period of time
awaiting trial.147

We can sense the three problems in the justice delivery system in the India. First, cost of the

access of the justice secondly, the delay because of number of the reasons thirdly,

uncertainty. The long delay to get the justice increases in the mind of the people who wants
to approach the court for their rights. The result is that it creates the frustration in the life of
the honest man and the dishonest man takes benefit from this so it leads to a complete lack of
faith in the delivery of justice.148 The problem of delay is more serious in the subordinate
court.

To find out the seriousness of the problem we have to see the total number of the cases

instituted in our courts and the cases decided. 149 The role of judiciary can be defined in these
words that our country provides us equal protection as all persons in this country is equal in
the eye of law and the task of the judiciary is not only to define equality but also to constitute
and support this equal protection of laws. As we can say that the role of our judges is to
protect the basic principal provided by our democracy that all the citizens in this society are
equal in the eye of law.150 The base of this justice delivery system is the courts of the nation.
The duty of court is to deliver the justice and also to supervise the conduct of the police

147
Subash Chandra, “A criminal Justice: An Overview”. 1999 07 LJ 45.
148
Supra note 142.
149
Ibid at 434.
150
P.B. Weston and IC.M. Wells, “The Administration of Justice”, 117 (Prentice Hall, Englewood Cliffs, 1967).
 officer and the prosecutor and the defence the counsel so that our system may effectively
work. This is the reason that the people has the expectation that whenever there is a legal
proceeding they must has the reasonable opportunity to represent himself whether he is a
victim or he is the accused and also the court must decide the case in the reasonable time.

The judiciary must be independent in the healthy democracy as independent judiciary is the
very source of the democracy and the existence of the democracy is not possible without it.
The growth of our democracy and the welfare of the citizens are also dependent on the

independent judiciary.151 Whenever we try to find out the reasons for delay in justice we can
see that except judiciary some other reasons also are there in the justice delivery system such
as.

1. They pass the orders without knowing and visualizing the final consequence that if their

orders are not put into practice, will they be capable to get them put into practice by passing
strictures or ordering them to suffer the economic loss, which is hardly ever done by our

justice delivery system;

2. Each time the executive does not put into practice orders, they are not dealt with harsh
action. They take dates after dates for one grounds or the other because they be acquainted
with that at the most they would be ordered to do a particular act, which they will have to do
if ordered. Therefore their inclination is to delay the matter as long as they can.

HUGE BACKLOG OF PENDING CASES

The subordinate judiciary is facing problem of the inadequacy of the strength to deal with the
fresh instituted cases. This problem creates the frustration and helplessness in the mind of the
persons who are facing litigation. With the growth rate of the population, the institution of
cases is increasing but disposal rate has not moving from the point of growth. It is revealed
by a study that if population increases that will also put impact on the crime and for that

151
Naini Palkhiwala. “Aspects of Judges Case", Indian Express, 8 March, 1982.
 reason the crime rate will also increase. 152 The long delay in the justice has an impact that the
deterrent effect related to the of the penalty ends and the long delays in the disposal of the
criminal matters is somehow responsible for the declining rate of conviction of all the cases
in which the accused are arrested on criminal charges. The huge mounting pendency in the
Courts of the country is the biggest challenge.

The problem of the pending cases in the higher judiciary is because of the very wide
appellate jurisdiction in criminal and the civil cases. The Articles 32 and the 226 also confer
power in Apex Court and High Court which also increases the burden of work. The overall
experience shows that the court is not able to deal with such type of overburden of work.

LOW POPULATION RATIO OF THE JUDGES

The population ratio of the judges in the India is not appropriate as compare to other nations
in the world.153 The problem is this that the population and the litigation have increased in the
last decade but as compare to this the strength of the judicial officers in the system which
provides the justice has not been improved. But to solve this problem not only we have to
increase the number of the judicial officers in the lower judiciary but on the same time the
right appointment is also important because unfilled vacancy may not cause that harm as
wrongly filled vacancy.154 The need of quick justice delivery is discussed in the case of India
Judges Association v. Union of India155, and in P. Ramachandra Rao v. State of Karnataka156.

LARGE SCALE UNFILLED VACANCIES IN COURTS

In the subordinate court the large numbers of the vacancies of the judges are vacant and
because of this the justice delivery system is not properly working. No one can deny this fact
that the big reason of the delay in the High Courts is the unfilled vacancies of the judges. The
main reason of the unfilled vacancies is the lack of recommendations received and matter
pending with the government. There are number of the vacancies pending because of the
152
R. r. Sethi, J., “Criminal Justice System: Problems and Challenges”, Aligarh Law Journal, Vol. XIV & XV, 1
(1999-2000).
153
R.C. Lahoti, "Envisioning Justice in the 21st Century" 2004 (7) SCC (J) 13.
154
Justice Madan, Arun, “Judicial System and Reforms” Vol. 87, Rajasthan Section, 105 (2000).
155
AIR 2002 SC 1752.
156
JT 2002(4)SC 92.
 financial crunch or ban or appointments. The worst situation arises when the court is not
having not proper appointment of judges and that too is overburdened. On the account of
these unfilled vacancies the subordinate court functions like a lame duck. Special judges are
appointed to solve this problem as the delay in justice is a big problem and it can be solved
by the appointment of the special judges and these judges must be the judges who have the
efficiency. This is sad to say that the delay in the appointment is a rule and the timely
appointment is an exception.157 The two things are equally accountable for the delay in the

process of the delivery of justice i.e. first, the non appointment of the judges and secondly,
the increasing arrears of the cases.

DEFECTIVE SYSTEM OF APPOINTMENT AND TRAINING OF

JUDGES

The procedure for the recruitment of judges is somehow not so good. In another words it is
defective. The 14th law commission report is not applicable on the appointment of the
process of the appointment of the judges. Judicial officers are themselves responsible for the
delay in the process of the delivery of the justice. For the effective justice delivery system the
country required the adequately trained judicial officer and that too with the minimum
comprehensive training experience of one year. 158 Under our constitution159 it is provided that
president shall appoint a judge of the Apex Court in consultation with the CJI. Here it is
interesting that the word is in consultation so in ordinary English it means that president
(means Central Government of India as president himself does not select the people, the
government does). So, government appoints a person as a judge of the Apex Court in
consultation with the CJI. Consultation is mandatory but ultimately the judges are appointed
by the government of India and that is how the framers of the Constitution wanted to have
appointment of the judges. Dr Ambedkar said in the constituent assembly when the
constitution was framed that I am not willing to give any more power to the Chief Justice of
India then this. Some people wanted to give more power to CJI by using the word
concurrence instead of consultation. Some of them wanted to make it as the President shall
157
Law Commission of India, 121st Report on A New Forum for Judicial Appointments (1987).
158
P.P. Rao, “National Judicial Service Commission” Indian Bar Review, Vol. 15 (1 & 2), 102(1988).
159
Constitution of India, article 124.
appoint with concurrence of CJI. If the word concurrence would added then the consent of
the CJI would become necessary and without his consent the president would not become
able to appoint the judges but Dr. Ambedkar was not willing to give more powers to chief
justice as according to him even chief justice is also a human being and he said that he cannot
trust a chief justice of India more than this because he is also a man with the same feeling
like any other ordinary person.

So, he wanted to keep healthy between the two by providing that government will appoint the
person as a judge in the Supreme Court and chief justice shall be the consultant and this
continued till 1950. Then in one case which is popularly called Second Judges case In this

case the Apex Court completely reverse this simple provision that the president shall appoint
Judge and Chief Justice shall give Consultants (article 124). They read this article to mean

that the chief justice will be deemed to be a collegium of 5 judges and he will select and the

president which means Government of India will be a rubber stamp to appoint a person as

the judge in the Apex Court. This case is called second judges case because in the first
judges case Apex Court said that ordinary english shows that president will appoint the
person and CJI will provide consultation only. In this case it was turned over and CJI was
considered collegium of 5 judges.

The word collegium is not used or defined in the constitution. In the case of appointment of
judges in High Court also the Supreme Court collegium of three judges shall appoint a judge,
the system was changed in 1993 and continued till 2015. In 2015 when the new government
came they passed a Constitutional Amendment as we know that a constitutional amendment
can be passed in the Parliament, this was very important amendment as it affects the
appointment of judges in the Apex Court. So, it has to be passed by the two thirds of the
members of the Parliament sitting in both houses and it required a ratification by half of the
state assembly so if we have 30 assemblies 15 States assemblies must ready for what has
been done by the two third of the members of the Parliament. So, such an amendment was
not easy to be passed as it can be seen that attempts were made in the past but they could not
succeed.
 So, the amendment was made that instead of the collegium of the judges one commission
must be appointed and that commission must consist three senior judges of 78 the apex court
and The fourth person should be the law minister and two people from different works of life
they may be doctors may be writers etc and these two people would be selected by the Prime
Minister and the CJI and the leader of Opposition that was challenged and annulled by the
Apex Court. It was Arnold on the ground that such judgment affects the independence of the
judiciary. The view of the government was that the independence of the judge starts from the
time when he became the judge and there is no question of Independence before a person
becoming the judge. So, they argue that it does not affect the independence of the Judiciary
but Apex Court rejected this view and said that to protect the independence of the judiciary is
for the better of society. So, we are now back to the procedure established in the year of
1993. Only in India and few countries this position is there that only a judges shall appoint
judges. So, to have a good judge is a primary task of the courts and the government. Most of
the times do not have any kind of special academy to give the training to the newly appointed
judges. The training of seven days or the training of one month is given which is not fruitful
as from the first date of the joining they have to decide the questions of others right related to
their life, liberty or other rights.160

SAME COURT TO DEAL WITH CIVIL AND CRIMINAL MATTERS

In Indian Justice delivery system there is a system of same court for the criminal and the civil
cases and preference is given by the court to the criminal cases as the personal liberty and right
to life of a person is in direct question. So, the time spend by the court on the criminal matters is
much as compare to the time on civil matters as the court has to hear the bail application and has
to record the evidences in the criminal matters.

CAUSES RELATED TO THE JUDGMENTS FOR DELAY IN JUSTICE

There are some important reasons for the delay in justice by the Courts relating to judgments.
The causes are as follows:

160
All India Judges Association v. Union of India, AIR 1993 SC 2493.
 1. Most of the times there are generally lengthy judgments on various points raised in a case.
Even there are conflicting judgments supporting the case of both the parties.

2. Many a time judgments are overruled and this creates the confusion in the mind of
litigating parties.

3. The quality of the judgments is not so good because of the heavy workload.

4. It has also been observed that many a times the judgments are not delivered even after the
conclusion of arguments.

PROCEDURAL CONSTRAINTS IN COURTS

Court has to deal with the large number of cases and the court knows that it is impossible to deal

with these cases. Court adjourns the 30 to 40% cases in a day for a future date. So the time spend

in this process is not used in any constructive purpose. The litigants have to bear a huge amount
of time for the copies of the documents. It seems that for successful system which provides
justice it is essential that the procedure for obtaining the copies for the document must be simple
and the party of the suit must be able to obtain it without any difficulties.

The court management is also one of the requirements we need today to reduce the delay in the
process. Court management means cases of similar nature could be bunch together. The courts
must understand that the principal role which must be performed by them is to interpret the law
and not to make the law for example Public Interest Litigation started in a very good way to save
the interest and it was meant for the poor and those who could not move for the code. Some other
person could file a case on their behalf the court will ask that person that how you are interested
in this case and how you have concern in this case. First public interest litigation was started to
protect the interest of those who could not come to the court but after sometime it become a
regular feature and the PIL were misused as it was used buy one party to create problem for the
opposite party as sometimes the real person who is behind the filing of PIL is another one and he
used another person as a face to file it and the real aim behind this is to disturb opposite party. It
is necessary to understand that because of the so many Public Interest Litigation the courts has to
face heavy burden of works and in these days we don't have luxury of time with us. It cannot be
denied that in different High Courts more than 25% of the cases which are pending are the public
interest litigation against every type of construction, against business projects etc. The U.S.
Supreme Court decides 80 cases in a year and our Supreme Court decides 80000 cases in a year
we can see that this is a big difference and it shows the miserable condition. So we need to
change this. The Supreme Court of U.K. does not have any power to annul a law made by the
legislature but on the other hand our Supreme Court has that power and it is said that greater
power comes with the greater responsibility and it is responsibility of the court to respect the
view of other court if not then the thing would become very wrong and the system will collapse.

One reason for this problem is the preparation of the copies of documents and the statement to be
furnished to the accused. If we try to find out the cause of delay in supplying the copies to the
parties so, we can see some reasons such as.

1. The staff who prepare is short in number.

2. The cases are large in number and it also cause delay as the court has to take a large
number of time.

3. The police also cause delay in preparing the case diary.

4. Huge case diary includes extensive statements Criminal Procedure Code and other
documents.

5. One of the reasons is this that the accused remains to be absent whether intentionally or
unintentionally on the date of serving of the copies.161

TERRIBLE WORKING CONDITIONS

A person cannot effectively work in the bad conditions, to work with full of efficiency a person
needs the working environment. The court rooms made for the justice delivery are in very
shabby and dilapidated conditions. The conditions of the lower court rooms are very unhealthy

161
Dr. D.P. Das. “A Study on the causes of delay in the disposal of Criminal cases: Under the Indian Criminal
Justice System”, 147 LJ 07 (1996).
and it is very difficult to visit lower court. In rainy time the storage of water is a big problem in
the courts and electricity is also not available in all the times. Sometimes the water filled in the
court rooms and the judges has to stop their work. The conditions of the Apex Court and the high

courts are good but the conditions of the lower courts are very bad. 162 The working conditions of
the subordinate courts are bad and it is hard to understand that how the judges appointed is

working there.163

AT EXECUTIVE LEVEL

GOVERNMENT/STATE RELATED

Section 80 of the C.P.C. provides service of prior statutory notice before filing litigation against
the government or public officer. If act done by such public officer in their authorized power.
The reason to provide such period is to provide the time to such government or the public officer
to solve the dispute outside the court. There is an expectation from the government that the
government has to solve the dispute and try to find out the fault from his side. The intention
behind this process is that the public money has not been wasted for the unnecessary litigation
and this provision is to aware the government or the public officer to discuss the claims and to
try to clear up them so that unnecessary litigation cannot put effect on the public money.164

In the case of Bihari Chowdhary v. State of Bihar165, Supreme Court said that the purpose of all
the sections is based upon the public policy and the object of this section is that when the claim
is there is against the government the government is expected to find out that whether the claim
is justified or not and if the claim seems to be justified the government has to solve the situation
by giving the demanded claim. This is to avoid the unnecessary lawsuits and save public time
and wealth.

162
The Tribune, Chandigarh, March. 27. 1998.
163
Ibid at 7.
164
B.R. Sinha v. State of M.P., (1969) 1 SCC 796: AIR 1969 SC 1256: (1959) 3 SCR 955
165
1984 AIR 1043, 1984 SCR(3) 309
The purpose is to evade annoyance which can be the effect if the accused is not given the guard
of these fundamental rules prevailing in the justice delivery system. Thus the directive of the
Article is clearly to provide justice. The expectation for the government is different as
government should use the time period provided to find out whether the claim is just and
reasonable or not. If government finds that the claim is reasonable then the government should
try to dissolve the dispute. The purpose is public in nature and this provision is for the benefit of
the public and to save the public money. In another words we can say that the object of this
provision is to secure the public good by avoiding the unnecessary litigation and to secure the
public good.

The said notice is only an empty formality. The administration generally not takes pain to tell
the opposite party that for what reason the claim is not accepted. This is the big reason that
the Law Commission has recommended in the year of 1976 that this provision is not fruitful
and it should be abolished.166

while recommendation is made then it is stated that in large number of cases we can see that
the government and the public officer do not use the provision of this section and in most of
the case the answer of the notice of section 80 is not given and the time period of the 2
months which is provided becomes useless. In number of cases we can see that this time
period and the notice is used as a technical ground by the government and the public officers.
We can see that this notice has been given or not it does not create any matter but these
technicalities defeat the just claim of the citizens.

In State of Punjab v. Geeta Iron & Brass Works 167 Krishna Iyer, J. said : “We like to
emphasize that Governments must be made accountable by Parliamentary social audit for
wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of
the proposed action under Section 80, CPC is intended to alert the State to negotiate a just
settlement or at least have the courtesy to tell the potential outsider why the claim is being
resisted. Now Section 80 has become a ritual because the administration is often
unresponsive and hardly lives up to Parliament's expectation in continuing Section 80 in the
Code despite the Central Law Commission's recommendations for its deletion. An
166
Law Commission of India 14th Report on reforms in the administration of justice 1958.
167
(1978) 1 SCC 68 (69): AIR 1978 SC 1608 (1609): (1979) 1 SCR 746
opportunity for settling the dispute through arbitration was thrown away by sheer inaction. A
litigative policy for the State involves settlement of governmental disputes with citizens in a
sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the
part of the State to empower its law officer to take steps to compose disputes rather than
continue them in Court. We are constrained number of cases defeating the just claims
citizens. To make these observations because much of the litigation in which Governments
are involved adds to the caseload accumulation in Courts for this there is public criticism. We
hope that a more responsive spirit will be brought to bear upon governmental litigation so as
to avoid waste of public money and promote expeditious work in Courts of cases which
deserve to be attended to”.

It is essential that the government must be accountable and the answerable by the
parliamentary social audit so that we may know the amount of the money spend by the
system. The notice of “section 80 of the code of civil procedure” has no use. The intention of
the section 80 of the code of civil procedure is that the government must go for the settlement
with the aggrieved party and if the settlement is not possible then at least tell the reason to the
aggrieved party that why his claim is rejected central law commission has given the
recommendation on this issue that the provision of section 80 must be used in the favor of the
betterment of the justice delivery system and it must be fruitful for the prevention of the
delay. So, the intention of the law makers was to help the aggrieved party to get the justice in
time and to give the time to the government to settle the matter outside the court and to do
justice with the person who has the right and just claim against the government. The
recommendation made by the law commission was on the basis of the same problem that
government must do the needful.

The policy is based upon the settlement of those disputes in which the government involves
by the way of conciliation and not to fight in the court especially when the claim is just and
reasonable. This provision is the directive for the state government to guide its officer to try
to solve the matter as per the provision. The numbers of cases are there in the court in which
the government involves and these cases increase the workload of the court and this
workload is unnecessary. If the authorities will work properly in that case it will not only
save the public money but also it will provide speedy justice delivery system. Similar is the
 providence of any other legislative requirement of prior notice/sanction under any other
enactment.

POLICE RELATED

The basic duty of the police in our justice delivery system is to guard the life and freedom of the
human being in the society and to protect the property. The police officers are assigned the duty
in the society to protect these rights of the individuals this is the responsibility of the police
officer. Numbers of the duties have to be performed by them and one of the most important
duties which are performed by them is that they have to sustain the law and the order and also to
investigate the matters of the offences.168

Whenever the police got the information of the commission of the offences they start the
investigation as per the provision provided in law. It is the police which not only collect the
evidence but also examine the person who is familiar with the information related to the crime
and also arrest the accused if required as per the provisions of the law. The police have one more
essential duty to perform that police has to understand the matter and has to decide that whether
the matter should be sent to the court or not for the trial. The importance of the investigation
agency is shown by the fact that they have some important things to do in the justice delivery
system. The role and value of the investigation is essential and this is the base of the justice
delivery system in the criminal matters. Police has to collect the evidence and has to find out the
hidden truth by using all the power given to them.

If there is any fault or mistake in taking the evidence or the investigation then it may fatal for the
justice that is the reason that the work of the police officers are very important any justice is
dependent on their work. If the investigation agencies will not work properly the victim will not
get the justice.169 The police officer while doing investigation or collecting the evidence has to be
careful and also manage to work on time so that they can avoid miscarriage of justice. Police is
there to help the court to find out actual situation so police has to collect all the evidence whether
the evidence is against the accused or the evidence is in favor of the accused.

168
Extract from the report of Malimath Committee on reforms of criminal justice system. Regarding justice to
victims of crime and police investigations. Government of India, Ministry of Elome Affairs, (March, 2003), p. 1 1.
169
Ibid at 12.
It is essential that the victim get the justice on time as the justice delayed is justice denied. If
public will get justice on time they will have faith in the justice and the process which provides
them the justice. The one more thing which is related to timely justice is the rate of crime as if
the agencies will do their work on time and there is timely justice then the criminals will think

many a time before committing the crime. 170 The effective justice delivery system is which
punish the guilty and absolve the innocent and fair and the impartial trial is one of the essential
element of the effective justice delivery system 171 . In Sangama v. State of Meghalay172 it was
observed that the criminal justice system breaks down where there is no speedy trial or speedy
investigation. It is sad to say that even the person who has not done anything wrong has to be in
the jail for a long term because of the delay in the justice delivery system. 173 The role of police is
very important in our justice delivery system as the police are not only duty bound to help the
justice delivery system to punish the offender but also to prevent the crime.174

It is very sad to say that the police force of our nation is not aware of the duty they have to
perform and the common man is not happy to deal with the police who are very harsh to behave
and in the eye of the common man police do not have the good reputation. It is also true to say
that the police has excessive workload because the staff is not adequate and the working hour is
also very long and the shift system of the police is also not very good to give rest to the man who
is performing his duty as a police officer.

The investigation done by the police is very essential and without this no one can have the relief
from out system. But this stage of the process is also facing problem of delay and some of the
reasons for the delay are mentioned in the Malimath Committee and the reasons are mentioned
below.

1. The attitude of the general public is non-co-operative.

2. The forensic and the logical back up support is not adequate.

170
Mehir-ud-din, Crime and Criminal justice system in India 56 (Deep and Deep Publications, 1984).
171
S.K. Sharma, “Right to speedy trial: An Imperative Procedural Piece of Criminal Justice”, The 38 Commercial
Law Gazette, 15 (April 10, 1980).
172
AIR 1979 SC 115.
173
Ibid at 116
174
N.C. Pai, Crime, Cause and Cure, 47 (Durga Sale Distributors, 1963).
3. Trained investigating personnel are not adequate.

4. The state of the art training facilities are inadequate.

5. The subsystem of the criminal law in criminal justice system is not in coordination so police
face problem to find out in the truth and prevention of crime.

6. Disbelieve in the laws and Courts.

7. Inadequacy of the law to deal with new offences.

8. The provisions of the bail and anticipatory bail are also misused by the accused to delay the
justice delivery system.

9. Accused directing the police for the things which are not the parts of police functions.

10. The work load and the other duties given to the police that effect the investigation.

11. Interference from the side of Political and executive.

12. There is number of laws art there which is ineffective and because of these laws the justice
delivery system is slow.

PROSECUTION RELATED

The administration of the Justice delivery system is not only in the hand of judges but it is also in
the hand of the prosecuting agencies and that is the reason that not only judges but they are also
responsible for it. The role of the prosecuting agencies is so much important that we cannot think
about the correction of the justice delivery system without making correction in the prosecution
agencies. It is duty of the prosecuting agencies to maintain the peace in the public.

An ideal prosecutor must consider himself the agent of the justice. Earlier the prosecuting
agencies were conscious of maintaining the justice in the nation. But now a day the accusation is
there on these agencies that they differentiate the criminals on the basis of cast and the social
positions etc. this is sad that there are number of factors which are accountable for the delay.
This is sad that there are number of the factors which are responsible for it. 175 The quality of the
prosecution suffers on these given grounds.

1. The officers working as the prosecutors are short in numbers for example only 15 public
prosecutors and about 45 assistant public prosecutors are dealing with the criminal cases and
near 78000 cases are pending in each year in a district courts and bad thing is that there are
number of vacancies are pending.176

2. The problem is not limited to the appointment of the public prosecutors and the pending of the
vacancies but the basis of the appointment is not on the merits 177 but the political approach and
other foul play this is the reason which effects the quality of the justice delivery system and large
number of persons are affected because of this reason.

3. The opinion of the public about the panel of the government advocates is not good as the
performance of the government advocates are not up to mark. The people have dissatisfaction
related to the facts that the coordination between the prosecution agencies and the other agencies
are very poor and the effect of this is also very bad on the justice delivery system. For example
the delay in justice delivery system is also because of this reason. The police, government
hospitals and other related institutions cause a lot of delay.

4. The government does not make the appointment strictly on the basis of the merits or on the
basis of the experience but the political approach or other factors are also responsible. These
defects cause many problems such as delay and denial of the right to justice in the justice
delivery system.

BY THE ACCUSED

ABSCONDING OF THE ACCUSED

There are number of cases in which the accused remains absconded and because of this reason
there is delay in the administration of the justice. It hinders the administration of the justice as
175
Supra note 154.
176
Ibid.
177
Supra note 153.
the attendance of the accused is required for the fair process. A large number of criminal cases
remain pending because of the absence of the accused and this is big reason of the delay in
justice. Some provisions are there in our statute for example Section 82 & 83 of the Criminal
Procedure Code, 1973. These provisions are there to deal with such type of problems but the sad
reality in this is that it is not changing the situation and the delay is still there because of the
absconding of the accused. Number of recommendations is there that if the accused remains
absconding after knowing the fact that his attendance is required by the Court. So, the court must
start recording evidence whether the accused come to the court or he chooses to remain absent.
This is the way to avoid the delay in the justice on the ground of Absence of accused.

REPEATED AND SEVERAL ADJOURNMENTS OF THE DATE OF EVIDENCE

It is sad to say that the several and the repeated adjournments discourage the faith of general
public on the justice delivery system as it cause the delay in the justice. These adjournments
affect the innocent party of the case but the big problem is with the witnesses as they have to
visit again and again without any purpose. It causes unnecessary harassment and wastage of the
money and the time.

INTENTIONAL DELAY BY THE ACCUSED

Most of the time the accused use the provisions of the law to delay the justice for example
sometimes he applied for the criminal revision or sometimes he tries to invoke the
jurisdiction .178

BY THE WITNESSES

The role of witness is very important and the prosecution has a responsibility to prove the case
beyond the reasonable doubt and the entire merit is based on the version provided by the witness
in the court during the testimony. The witness has to give the evidence so that the court might
know the real facts of the matter as without this even the court would not be able to do the
needful, this is essential so that the court may deliver the justice. The witness has to take trouble
and invest his time and money to reach in the court to give his evidence. Now a day no one

178
Code of criminal procedure, 1973 s. 483.
wants to be a witness as it is time assuming task in which the witness has to give his precious
time and has to take risk also.179

The fact that some witnesses became hostile is one of the reasons of delay in justice.
“P.R.Thakur” describes the problem in the following words: “In olden days, it was rare to see an
important prosecution eyewitness turning hostile or not supporting case of prosecution during
trial in a Court. It is not that lure of money or shadow of muscle power or political or social
influence over witnesses did not exist during those days. Earlier, trial used to be conducted on a
day-to-day basis and there was hardly any adjournment of a case on any ground unlike today
when adjournments are granted for the asking and at the drop of a hat. Earlier, the rule of
practice was that an eyewitness used to be summoned only once, and he/she would be examined
on the date for which summoned. These days, in spite of several attendance by the witnesses,
their examination-in-chief is not started at all largely due to delaying tactics of the lawyer of the
accused. Very often the cross-examination of a witness is not completed in a day and several
dates are fixed for cross-examination of the witness. The witness also feels disgusted over having
been summoned time and again and having appeared uselessly on a number of dates, only to be
told to appear again without fail at the risk and cost of being issued arrest warrant in case of his
failure to appear or late coming. The witness then realises the folly of his having volunteered or
consented to become a prosecution witness to help the cause of justice and falls in line with the
defence to get rid of the harassment”.

It was believed by him that in the olden days, to see any important witness turned hostile was not
normal but now a day the situation is common in which important witness turned hostile. No one
can deny this fact that the muscle power and Political and Social influence is there on the witness
and this is the one of the big reason that the important witnesses turned hostile and other big
reason is the adjournments and because of this the witness has to come again and again and it
breaks their faith and hope. The result of this is that the witness turned hostile and it destroys the
whole process of the justice delivery system.

BY LITIGANTS
179
P.R. Thakur, “Why do Prosecution Witnesses Fall Flat So Often? Crimes”, available at
http://www.lawyerscollectve.org/lcmag/free_downloads/magazine20Ql/August%2Q2QQ 1/c rime.htm (last visited
on june 23 2023).
It is true that the litigants who blame the court and the justice delivery system for the delay in
justice himself does not co operate the court or other agencies for speedy justice. In number of
cases litigants by their own selves interested in the delay for their hidden benefits. Some
examples are such as do not come with the proper witnesses; they do not take effective step for
the service of summons etc.

STRIKES BY ADVOCATES

Strikes by Advocates are the unjustified act as it is boycotting the court work. Generally the
strikes of Advocates are for the indefinite period and it does not create any matter, how much
important matter is pending in the court. Sometime the Supreme Court and various High Courts
have declared these strikes as illegal and bad for justice delivery system.

LAWYERS DISCOMFORT WITH THE CHANGE IN THE PROVISIONS OF LAW

Change is the law of nature. Every institution and person keeps on changing day in and day out
so the society also changes by the time and to meet the need of that changing society, the law has
to change and we can see the Lawyer’s resistance to change. This is also a big reason for the
delay in justice.

ADJOURNMENTS

For the effective justice delivery system both are essential whether Bar or Bench. One of the
reasons of the delay in justice is adjournment. Attorney General K.K.Venugopal said that it is my
genuine request to advocates, please do not go on strike, it’s only for the trade unions. We are
not in a business, we are in a honourable profession and after his statement chief justice of India
said that he is the leader of the advocates and if according to him the strike of the advocates is
not appropriate and advocates must not go for the strike then it should be considered as the
command.

Section 309 of the Code of Civil Procedure provides some valid grounds on which adjournments
can be granted. The Judges has to observe that whether the grounds are valid or not and if Bench
feels that the grounds are valid, the bench has to record the reason in writing. The problem
comes when because of the adjournments the under trial accused has to be in the jail for a long
period of time as the proceedings stopped for some time and it happened again and again. The
Bar and Bench both have responsibilities to provide speedy trial to the parties of the suit. The
only remedy available for the speedy trial is the sincere efforts from the both Bar and Bench. The
delay caused by the adjournment creates a big problem to the helpless litigants and 95 they have
to pay the price for the delay in justice. Order 27 of the Code of Civil Procedure also provides
the provisions for the adjournment in the civil matters, and it provides:-

1. Court may adjourn hearing and grant time whenever sufficient cause is shown, the court may
grant the time for the next hearing and grant the adjournment and also record the reason for that.
It is provided that only three times the adjournments may be granted.180

2. In every case the court has the duty to fix a date for the further hearing of the matter and if the
party of the suit is responsible for the delay and tried to adjourn the hearing, so the court shall put
cost on that party.181

Provided that:-

1. Once the hearing start, it shall not be stopped unless all the witnesses have been examined
unless there is some exceptional circumstances which must be recorded.

2. The court must not grant the adjournment only because the party has made the request as the
only way in which the judge may grant it is on the basis of the valid reasons

3. It shall not be consider good ground that the pleader is engaged in the different court

4. Where the ground is this that the advocate is ill is a valid ground for the adjournment of the
court.

5. If the party is absent in a civil matter on the date of the hearing but the witnesses are present or
if the party and the witness and the pleader they all are present but not willing to examine, so, it

180
Substituted by Act No. 46 of 1999, section 26
181
Substituted by Act No. 46 of 1999, section 26
that situation the court may by itself record the statement made by the witness and also the court
may pass any order which seems reasonable to the court.182

OTHER CAUSES

DEFECTIVE BAIL SYSTEM

The General provision is Bail not Jail. We can classified the under Trial Prisoners in two kinds-
first, those who cannot furnish Bail and Secondly, who can furnish the Bail but they are not
granted bail.

There are two types of offences bailable and secondly non bailable. In the first one the person
can claim the bail as a matter of right but in second one the person can’t claim it as a matter of
right but the court has discretion either to grant the same or not. . But the problem is this that if
the offence is bailable or if the offence is non-bailable and the court applied its discretion and
think that bail should be granted but still he cannot be released on bail if the accused do not
furnish the security of the requisite amount because of the following reasons:-

1. Sometimes the very high amount is set for the security to grant the bail.

2. Sometimes to fine the sureties becomes very different due to poverty or the absence of legal
Aid.

In Menka Gandhi Vs. Union of India183, it was held that the procedure in which the people has to
spend their time behind the bar without trial cannot be called reasonable fair or just. Bail is the
release of the person facing the accusation from the custody. The bail is granted so that they can
be called in the court whenever there is need of their appearance.

There was a case184 in which the court set the high amount for the security to grant the bail and
because of this the accused though charged for the bailable offence failed to have the bail then it
was held by the Supreme Court that the amount must not be so high that a person fails to furnish

182
Substituted by Act No. 104 of 1976 for the previous proviso (w.e.f. 01.02.1977 )
183
AIR 1978 SC.
184
Sandeep Jain v. NCT AIR 2000.
the security because of the huge amount set by the Court. In another case 185 Patna High Court has
refused to accept the bail application of the accused without giving any justified answer. So, the
Supreme Court held that the decision of the Court is not good as the accused must know the
reason that why his bail application is rejected.

LACK OF SUFFICIENT DATA ON THE SCIENTIFIC BASIS

To understand the problem of the delay in the justice and to improve the justice delivery system we
have to study the system with the help of data but it is sad to say that we do not have the sufficient data
to have a good study on that problem. This is the reason that because of the lack of sufficient Data on
the Scientific Basis we are not able to find out the root of the problem and without knowing the root of
the problem we will not be able to solve the problem.

PROBLEMS WITH TRIBUNALS

No one can deny that there is an over burden in the courts and to share these burdens of the cases
various institutions and the tribunals have been constituted. But somehow there is number of
problems with these institutes and the tribunals for example some time the inadequate staff
causes such circumstances in which unavoidable circumstances emerges which cause delay and
sometimes the Chairman of the Commission could not write judgments as the person he got from
the Government for this on the deputation was withdrawn by the Government without notice.
Sometimes, the certified copies could not be delivered to the party of the suit because of
insufficient staff and that too cause delay in Justice.

ENCROACHMENT ON JUDICIAL INDEPENDENCE

The independence of the judiciary has been called into question several times in recent years, and
this third pillar of democracy has always perplexed the people. The Judiciary acts as a check on
the Executive’s misuse of power by acting as a barrier between citizens and the government. As
a result, as stated in many parts of the Constitution, the judiciary must be free of executive
pressure or meddling. The Executive, as well as external pressures and prejudices, impede the
independence of the Judiciary.

185
Dhruv K. Jaiswal v. State of Bihar AIR 1999.
The majority of all senior Judges were superseded after the Kesavananda Bharati decision, which
limited the authority of Constitutional modification, and the dissenter was granted with the office
of CJI. In protest, the superseding Judges resigned. Emergency was declared in 1975. Judicial
oversight of violations of fundamental rights, such as the right u/a 21, was drastically curtailed,
giving the Executive practically unrestricted power to strip persons of their liberty and detain
them without consequence. Several High Courts have ruled that Governments are unable to do
so. In 1976, the Executive reassigned 16 High Court justices to other High Courts in response.
The SC majority disagreed with the HC and upheld the Government’s authority. Justice H.R.
Khanna was the lone dissenter. Although he was the senior-most Judge in the SC and would
have been nominated in the normal way, the Executive ‘punished’ him by superseding him for
nomination as CJI and Justice Khanna stepped down.

It’s no surprise, then, that a battered Judiciary, after an initial regrettable hiccup in the form of
the S.P. Gupta decision, picked itself up and, using all of the interpretative tools at its disposal —
dubbed by many as an unacceptable feat of Judicial activism — virtually wrested the powers of
appointment, confirmation, and transfer of Judges from the Executive through a composite
Judgement in several public interest litigation.

Nomination of Justice Gogoi in Rajya Sabha, after making a Statement on the challenges to the
law which governs the quasi-Judicial tribunals, is not the time in the Judicial history of India,
where a former CJI of Supreme court was awarded post-retirement benefits. It has dated back to
Nehru’s regime, when Justice Hidayatullah became the vice President of India or when Justice
Baharul Islam, who after becoming a Judge of SC, again became a member of Parliament. In
1991 Justice Ranganath Mishra was appointed as chairman of NHRC and later became a member
of Parliament from INC’S ticket, but as rightly said by Justice Madan Lokur, “several wrongs of
the past do not make this decision right”. After less than six months of retirement, former Chief
Justice of India Ranjan Gogoi was nominated to the Rajya Sabha. In the final year of his term, he
was involved in several pivotal decisions, including the Rafale Deal, the Ayodhya Temple issue,
and the Assam NRC case, all of which were directly related to the BJP-led-NDA Government,
all of which were decided in the Government’s favour. P. Sathasivam, the former Chief Justice
of India, was appointed Governor of Kerala within six months of his retirement. He presided
over the bench that dismissed Amit Shah’s First Information Report in the Sohrabuddin Sheikh
fake encounter case. The question is whether the retired judges are nominated because of their
credibility or because of a favour they may have rendered to the Government. These selections,
therefore, call into doubt the Judiciary’s credibility and independence.

Major trends vis-à-vis Speedy Justice

JUDICIAL ACTIVISM

To define the term judicial activism in a single definition is not possible as several efforts are
made by the number of jurists to define the term but the exact definition of this term is still
missing. The term judicial activism can be understood in the language of lay man as it is the
active participation of the Indian judiciary to protect the interest of the members of the society
from the unjustified acts of legislature and the executive. Three separate Institutions are the base
of our democracy and these are the executive, legislature and the judiciary. To give them the
credibility they all get the separate powers and functions and they all are independent from each
other. The power to make law is given to the legislature and executive has a duty to execute
those rules and regulations which are made by the legislature and Judiciary has a duty to enforce
the law and to provide the justice to the members of the society. Judicial activism is the way
from which the Judiciary is protecting the general interest of the society from the unjustified
activities of the legislature and the executive. No one can deny this fact that the active
participation of the Judiciary through the judicial activism helps to maintain the coordination
among the three separate Institutions of our democratic state. The judicial activism not only
helps to maintain the separation of power among the “legislature, executive and judiciary” but it
is related to the interpretation of the provisions related to the constitution and the statutes for the
protection of the interest of the society.

Judicial activism means the active participation of the Supreme Court and other lower courts to
protect the rights of the members of the society from the government policies or by the executive
actions. So, it can be understood as the interference of the judiciary to safeguard the interest of
the aggrieved citizens in the legislative and executive fields. Judicial activism is an extra
ordinary role played by our judiciary to protect the constitutional and the legal rights of the
members of our society. It can be called judicial philosophy applied by the judges to enforce
those laws which are constitutionally valid and beneficial for the members of our society.
"Whenever a vacuum is made within the arena of government and legislative assembly, the third
organ i.e. the judiciary comes forward and fills that vacuum. This makes a democratic setup run
smooth." So, judicial activism is the pro-active role of the judiciary for the promotion of the
justice in the state to protect the rights of the members of the society. Judicial activism is also
called as judicial dynamism. In the recent years the Parliament seems to become less
representative of the will of the general public and because of this to protect the interest of the
general public the Apex Court has to expand its jurisdiction to issue directions to the legislative
the executive.

DEFINITION OF JUDICIAL ACTIVISM

The term “judicial activism” is not defined in the constitution but it is defined by the various
jurists of different nations and because of the definitions provided by them we can understand
this term. According to black dictionary “a philosophy of judicial law making where by judges
allow their personal views about public policy among other factors to guide their decisions,
usually with the suggestion that adherence of this philosophy tend to find constitutional
violations and are willing to ignore precedent”.186

The term judicial activism is defined by the Indian jurist in the following words. According to
the former Chief Justice of India, A.M. Ahmadi “judicial activism is a necessary adjunct of the
judicial function since the protection of public interest as opposed to the private interest
happiness to be main concern”187.

According to former CJI, Justice Verma "judicial activism must necessarily mean the active
process of interpretation of the rule of law essential for the preservation of a fundamental
democracy".

JUSTIFICATION OF THE JUDICIAL ACTIVISM

If the legislative and the executive fail to perform their obligations in the proper sense then the
members of the society look up with hope to the Indian judiciary so that the Judiciary may
186
Black's law dictionary (7th edition 1999)
187
A. M. Ahmadi "judicial process: social legitimacy and institutional viability" 4 SSC (Journal) 6, 1 - 10(1996)
protect their interest and their freedoms. There are certain provisions adopted by the constitution
which provides power to the Judiciary to legislate and to protect the rights of the citizens from
unjustified activities of Legislature and executives. The need of judicial activism arises when the
two other organs of the state fails to perform their duties. Some of the situations are given below

1. When legislature fails to perform its duties.

2. When the government is not stable and there is a hung parliament.

3. When the basic rights of the members of the society is in danger.

4. When the system of law and the administration fails to provide just and honest system.

5. When the court needs to expand its jurisdiction to provide justice to the members of the
society.

The judicial activism plays an important role in our system which provides justice to the
members of the society and two most important cases related to judicial activism are “Bhopal gas
tragedy case”188 and “Jessica Lal murder case”189 . Sometimes the criminals try to use the power
to save them from the justice delivery system and for that they use money and political
influences but at the end because of the judicial activism they get what they deserve. In the year
of 2007 The Apex Court called for the judicial restraint and gave observation that the Judiciary
must not take over the functions which must be performed by the legislature and the executive. 190

If the judiciary unjustifiably trying to perform the functions of executive and legislature then that
act of judiciary is without any doubt unconstitutional. In judicial activism the Judiciary strikes
down any law which is against the welfare of citizens and against the constitutional values.
Judiciary tries to correct the mistakes done by other branches of government to protect the
members of society from injustice. Article 13 of the Constitution of India gives power to
judiciary to review any rule, law or an Act which is against the fundamental rights of citizens.
Judicial activism is an invention of the judiciary and the term is not mentioned in our

188
Union Carbide Corporation v. Union Of India AIR 1990.
189
Sidhartha Vashisht v. NCT Of Delhi AIR 2010 SC 2352.
190
State Of U.P. & Ors vs Jeet S. Bisht & Another on 18 May, 2007.
constitution. In India judicial activism came into existence from the case of Golak Nath. 191 In
which it was held by the court that the constitution cannot be amended by the legislature. In the
year of 1973 in the case of Kesavananda Bharti 192 once again judicial activism was done by the
court by introducing the concept of basic structure and it was held by the court that the
legislature do not have power to change the basic structure of the constitution. In the year of
1981 in the court in SP Gupta case 193 the concept of public interest litigation was introduced by
the Apex Court. Recently national anthem in cinema halls were made compulsory and it is
amended once again now it is optional. In the case of Arjun Gopal 194 one important step is taken
to protect Delhi from pollution is to prohibit the firecrackers. Recently one decision was taken by
the National green tribunal to ban the use of the petrol vehicle after 15 years and diesel vehicles
after 10 years. Many other judgments are there in which judges proactively took the decisions
and interfered in the field of legislature and executive to protect the interest of general society.
One important step is taken to protect Delhi from pollution is to prohibit the firecrackers.
Recently one decision was taken by the National green tribunal to ban the use of the petrol
vehicle after 15 years and diesel vehicles after 10 years. Many other judgments are there in
which judges proactively took the decisions and interfered in the field of legislature and
executive to protect the interest of general society.

GUIDELINE TO DEAL WITH POLITICAL PRESSURE IN INVESTIGATION

The one of the task of the investigating agencies is to maintain the just in the society but what
exactly is the just is difficult to say as the members of the society who has everything will have
different opinion about it and those who do not have everything may have totally different
opinion about it. The weak members of the society are victimized by the strong members of the
society.

The scope of crime and the criminals is now very wide and busted as compare to what it was a
decade ago and the reason of this is the internationalization of the crime because of the
globalization of the countries. It was the demand of every country that there must be an
191
Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)
192
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225: AIR 1973 SC
1461
193
S.P. Gupta vs President Of India And Ors, AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
194
Arjun Gopal vs Union Of India. on 23 October, 2018
investigating agency which must be meant to investigate the matters of international crimes and
which can capture the international criminals. One specialized agency was established to solve
this problem which is called INTER POL and the main concern of this agency is to maintain
with the direct contact between police forces, outside the usual channels of diplomacy. The
recent task performed by the INTER POL is impressive and the United Nation is also taking a
great interest in the INTER POL and the working of the same.

One cannot think about the concept of globalization without the existence of the INTER POL. If
agency like the Interpol is not there the foreign countries would become the safer place for the
offenders and criminals for the absconding from one country to another country. Almost all
civilized country is the member and trying to help the work of INTER POL in India the CBI is
helping the INTER POL in their investigation and other tasks. To have an efficient and smooth
working the very mission of the Interpol is to enhance the cooperation between the police
organizations of different countries with each other, to help member countries to avoid the
problems in the smooth function of working. “INTER POL is not an investigating agency as it is
a means which enable global access to the police data and information”.

Interpol helps the CBI fight against the crime and also to catch the criminals who are trying to
hide their selves in the different countries. The thing is this that the INTER POL is not having
the power to arrest the accused and also they cannot execute the search warrants but still they
have an important task to perform such as they can help the investigating agencies to investigate
the matter and also to collect the evidence against the criminals. They help the CBI to collect the
evidence against the accused if CBI is not able to do the same because the problem of
international boundaries. One of the big tasks performed by the INTER POL is to fight against
the corruption as in the February of the year of 2012 the first Interpol global program was on the
topic of “anti corruption and asset recovery”. The main object of this program was to make an
environment in which the investigating agencies of the member nations could easily find out the
corruption practice, and to know that whether the black money is deposited in another nation or
the evidences of the corruption is there in another nation or not.
In the case of Vineet Narain V/s Union of India195 the matter came to the Apex Court about the
slow and suspicious working of the investigating agencies. The problem was that the central
investigating agency like the CBI has refused to do investigation and to collect the evidences
against the high profile politicians and other high profile businessmen and the high grade
government officers. The problem came in the existence because of the political pressure from
the ruling side of the political party which has the power to dominate the investigating officers.
The problem was so serious that the Supreme Court take it in its consideration and to prevent the
pressure from the political parties and to stop the extraneous influences and for the proper
implementation of the rule of law some necessary steps were suggested by the Supreme Court.

The Supreme Court takes the matter very much seriously and find out the solution as well as the
main reason of the trouble. The main cause of all of these problems is the predating corruption in
the public life and the serious thing which is felt by the Supreme Court is that the corruption is
the danger for the Indian polity and if we will not stop the corruption practice then the nation will
face big problems and these acts will destroy the Indian polity. The Apex Court not only defines
the configuration of the investigating agencies such but also guided them all to work and perform
in the best way, one of the main part of our system related to the justice delivery is the
investigating agencies and the guidelines are provided so they all can work in the best way. The
Supreme Court has created an authority to monitor the investigation done by the investigating
agencies against the powerful persons so that the high profile persons may not affect the
smoothness and quality of the investigations. The authority which was created by the Supreme
Court was created through the continuing mandamus on the investigation done by the CBI. The
Supreme Court held that the need of independent entity is required which can investigate the
matter related to the corruption without any interferences from the political parties. 196 The CBI
and the Enforcement Directorate has not the responsibility to conduct the whole of the
investigation against the executive if some charges is against them.

CBI is the successor investigation agency to the Delhi Special Police Establishment, with the
Delhi Special Police Establishment being made one of its divisions. There is a directive for the
CBI issued by the central government that while CBI is going to start any investigation against

195
(1998) SCC 226.
196
Vineet Narain & Ors V/s. VOI & Another, (1998) SCC 226.
any bureaucrats of the level of the joint secretary and above in that case the CBI has to seek prior
approval of the central government before going to start their investigation.197

If the power is given to the CBI to investigate the matter as provided under the section 3 of the
act then no executive instruction could stop and hinder the process of the investigation. It cannot
be imposed by the central government as the condition precedent that the prior permission of the
central government is essential in some cases when there is not provision in the law for that and
only central government is imposing to save and hide corruption of their persons. The Supreme
Court held that these types of directives are null and void. The parliament has codified and
reintroduced the single directive by changing the main provision of it. CBI was stopped to start
the investigation or the inquiry of any offence if “it is committed under the prevention of the
corruption Act, 1988 by the employees of the Central Government of level of joint secretary and
above; and such officers as are appointed by the Central Government in corporations established
by or under any Central Act, Government Companies, societies and local authorities owned or
controlled by that Government, without the approval of the Central Government”. Section 8 (1)
of the Center Vigilance Act provides that the commission will not use its power in a particular
manner so that the “Delhi Special Police Establishment” to do the investigation or to dispose of
any case in the particular sense. The Act however does not make this provision applicable to the
superintendence of the central government. The superintendence done by the CVC is for the
reason so that they can investigate the matter related to wrong done by the public servants under
the Prevention of Corruption act, 1998. If we study the section 2 of the same act then we will get
to know that the meaning of the public servant will not consist of the politicians. The High court
and the Supreme Court first pass an order and then only the CBI may proceed. The tense relation
between the state and the center cause the problems in that. The man is a social and political
animal and a man cannot live without state or society and if a person is able to live without
society he is either above the humanity or below the humanity. The society is changing day by
day and for that the law should be the same that means the law should be changing to meet the
needs of the society. The Supreme Court sometime uses its power to interpret the law so that the
new emerged situation can be solved by the justice delivery system.

MANDATED GUIDELINE FOR AFFECTING ARREST

197
Ibid.
The rules related to arrest which must be followed by the police officer are there to protect our
justice delivery system. Supreme Court is very serious to protect the interest of the person who is
arrested by the police officers and because of this the guidelines are issued by the Apex court.
Article 141 of the Constitution makes it mandatory for the subordinate courts and the police
officers to follow the directions and rules set out by the Apex Court. 198 The Supreme Court has
gave the guideline to the investigating agencies that how they can arrest the accused and what
formalities must be there while the investigating agencies are going to arrest the accused and
after the arrest.

In the case of D.K. Basu Vs State of West Bengal 199 guiding principle were given by the Apex
Court on the basis of the storyline and situation which arose in the case. As D.K. Basu was the
executive chairman of the legal aid service of the West Bengal and he wrote a letter to the chief
justice of the Supreme Court about the torture and the custodial death of the under trial persons
in different areas of the India. In order to support his argument, he also attached some
newspapers report for this point in which the news related to the torture and the death of the
under trial is reported. The Apex Court took this letter very seriously as the writ under the
provisions of the constitution of India and the case was taken by the court as the PIL to protect
the interest of the accused persons. Basu insist on the Apex court to look at the matter in the deep
and he also insisted to the court that court should set some principles related to the matter in
which accused face custodial torture and to give them compensation if they are victims of the
torture in the custody or by the police during the inquiry. He also instated on the Supreme Court
to prepare means to make sure the answerability of those who are liable for such incidents. The
Apex Court issued the notice to the Government of all the states and also to the Law
Commission of India to propose plans that how this evil can be eliminated from the justice
delivery system.

“Custodial torture is a naked violation of human dignity”, - Supreme Court It is observed by the
court that it is true that the investigating agencies have to perform tough task as in society to
maintain the situations related to law and the order is not an easy task. The right has been given
to them to arrest the person who comes under the definition of the wrongdoer and to collect the

198
Constitution of India, art. 141.
199
(1997) 1 SCC 416
proof against that person in the course of the investigation. But it is not good for our system that
the investigating agencies will use the third degree in the sense of the custodial torture on the
persons who are facing accusations. According to the court during the investigation done by the
police officers the violation of the human rights is the common thing. It was held by the court
that the guiding principles must be circulated to the home secretary of all the state governments
and the union territory and also to the D.G. of the police. It is stated by the Apex Court that all
the persons have the right to life whether he is accused or any other person which is provided by
the constitution. So, one cannot be denied to the rights whether he is wrongdoer or under trial or
the person who is detained in the lawful custody except the provisions established by the law. If
there is any act of inhuman treatment by the investigating officer or any other police officer or
any authority of the jail that will be considered as the violation of the Article 21 of the
constitution as it is said: “Accountability and Transparency of action are the two possible
safeguards which the court insisted upon for reliable justice delivery system.”

These guideline principles are based on the provisions of the code of criminal procedure 1973
and also on the regulations laid down in the police manuals and the book that is also known as
the rule books. It was also held by the Apex court that the failure to obey with these guiding
principle make an officer who is investigating the case legally responsible for punishment
through official action and also it shall amount to be the contempt of court. There are some basic
provisions are provided to the investigating agencies in the Cr.P.C. and in the police manuals and
the principles set out by the Apex Court is based on these principles. To secure the credibility of
the system one important step is taken by the court that if any investigating officer fails to obey
the guiding principle he will be responsible to have punishment for the same as not only official
action shall be taken against him but it will be considered as the contempt of the court. The State
must guarantee that various agencies deployed under the justice delivery system must work
within the authority provided by the law and it shall not act as the agency is law itself.

In the case of Joginder Kumar Vs State of U.P.200, the Apex court gave valuable guidelines
related to the apprehension of the accused. The fact of the case provides that, Joginder Kumar, a
youthful advocate whose age was 28 years was taken to a secret place by the police to ask some
question from him. He was unlawfully detained by the U.P. police for the five days. His family
200
AIR 1994 S.C. 1349
filed a writ petition of Heabeas Corpus with the Supreme Court to know his whereabouts. The
supreme court take this matter seriously and issued a notice to the state of U.P. and also to the
SSP to know the reason of the arrest of the young lawyer and also to know about his
whereabouts and most importantly Supreme Court asked that why he was apprehended for 5
days without a justified grounds also why police officers had not recorded the information
regarding his detention.

The Apex Court, discarded the report given by the police as the report was not trust worthy as
the Joginder Kumar was himself assisting the police during the investigation with his free
consent and the police on the other hand said that the custody of the Joginder was sensible and
necessary, Supreme Court said that unlawful and pointless arrest and unnecessary confinement
can cause enormous injury to the status and self respect of an individual in the society. The Court
also held that the police officers should not arrest the person, unless it is extremely needed and
there is no alternate except detaining the wrongdoer to make sure his/her attendance before the
justice delivery system. Needless and baseless arrests cause the harassment to the person who is
arrested and because of this he loses the faith from the justice delivery system. According to the
“3 rd Report of the National Police Commission”, near about 60% of the arrests which were
made by the police were pointless and because of this not only the accountability of the police
officers are effected but also the expenditure of the jail is increased up to the 43.2% o. It is
provided in the Section 220 of the I.P.C. that there is maximum punishment of the seven years if
police officer makes a dishonest, hateful arrest without recording the grounds of the same.

RECENT TRENDS RELATED TO THE HANDCUFFING ON THE BASIS OF THE

GUIDELINES

Police officers are authorized to restrain the accused by handcuffing him and on the other hand
the law holds down the police officer for doing the same especially if it seems to be unnecessary.
In our justice delivery system even a prisoner who is under trial that person is permitted and
allowed to have minimum freedom to move and it cannot be reduced harshly by using of the
handcuffs.
The Apex Court in the case of Sunil Batra Vs Delhi Administration201 , held that personal liberty of a
person is effected by the solitary confinement and it is the violating the right to life provided in the
constitution of India. There is no entire denial of a prisoner‘s right related to his life and freedom. The
aim of the comments in the very case indicates that even the accused that is under trial cannot be
dispossessed of the right to move freely. The court said: “No pointless handcuffs or hoops could take
away the right of the life and freedom to have minimum freedom to move from him.”

It was also observed in the case of Prem Shankar Shukla202 , by the court that it violates the
guarantee of the basic human dignity when police officer use handcuff on the prisoner. In this
case the Prem Shankar was a prisoner who was under trial at the Tihar jail. He also informed the
Apex Court that regardless of the Apex Court‘s directions in Sunil Batra‘s case, that in the
normal circumstances the handcuffs shall not be used and it should only be used if a person
shows the probable tendency for violence or escape. He also informed the court that when they
were escorted from the jail to the premises of the court they were handcuffed and unnecessary
force is used against them. The Apex Court held in this case that police officer cannot use
handcuff even if there is an order from the superior officer as it is not a legitimate explanation for
handcuffing a person. The right provided by the constitution cannot be suspended on the basis of
the order of a superior officer. In this case it was provided that to bind the accused with the help
of the chain or ropes will amount to inhuman treatment and handcuffing should not be used as a
regular practice. The handcuffing is permitted only under exceptional cases and that too with the
prior permission of the court on the ground that the person is too dangerous or there is strong
reason to have belief that he will try to run away.

In Citizens for Democracy Vs State of Assam 203 it was held by the Supreme Court that the
handcuffs shall not be used in the justice delivery process on the accused who are under trial or
the convicted prisoners without the prior permission of the court and it does not create any matter
that the person is in the jail or he is taken out for any process of the justice delivery system
except in the exceptional circumstances. In such occurrences, the police will show that the
handcuffing was necessary in the particular case. It means that the police officer or the authority
that wants to detain the accused and wants to apply handcuffing on him fails to prove that there
is need to apply handcuffing the handcuffing shall not be allowed and if the detaining authority
201
AIR 1978 SCC 494.
202
AIR 1980 SCC 526
203
AIR 1996 SC 2193
had used the application of the handcuffing they will be held liable under the law. It was held in
the case of Sunil Batra that the escorting authority must record the reason for handcuffing the
under trial prisoner and also inform the court about the reason and necessity for doing the same
so that the court may issue necessary guideline or direction for the same.

RECENT TRENDS AND GUIDELINES FOR SPEEDY TRIAL OF

CRIMINAL CASES

For a good justice delivery system the speedy trial is must and the right of speedy trial is
provided and protected by the constitution of India under the Article 21 as the right of speedy
trial is the essential part of right to life and liberty guaranteed under Article 21.

In the case of In Kartar Singh Vs State of Punjab204 , It is held by the court that to have a speedy
disposal of the case is the right of the litigant party as the right of the speedy trial is guaranteed
by the constitution because it comes under the right to life under the Article 21 of the
constitution. The person who is facing the accusation got this right from the time he was arrested
and this right is continued in all the stages of the case such as investigation, inquiry or the trial.
The main of this right is to prevent the failure of the purpose of the justice which can be caused
by the unavoidable delay. The code of criminal procedure also has some provisions related to
this for examples section 309 of the code of Criminal Procedure provides the same.205

In Abdul Rehman Anntulay and others Vs R.S. Nayak & another 206 , it was held by the Apex
Court that the accused has the right of the speedy trial and this right is provided by the
constitution and the same thing is said by the constitutional bench of the Apex Court in this case.
The five-judge bench in this case said that Article 21 provides that there must be speedy disposal
of the cases and the bench also gave some suggestions on this topic in the detail. . It was also
stated by the court that the provisions of the Cr.P.C. complimentary with the right related to have
speedy trial but it is sad to say that the procedure is not followed in the right way that is the
reason the problem of delay in justice is there in the justice delivery system. Constitutional bench

204
AIR 1994 3SCC 569
205
Code of Criminal procedure, 1973 Section 309.
206
1992 (1) SCC 225.
in the case of in Antulay‘s Case207 stated that it is duty of the state to make sure that legal rights
must be available to all the individuals and no one should be denied to get the justice because of
the disability such as the lack of money or the illiteracy or the tinder age or the unsoundness or
any other disability.

It was held by the Apex Court of India in Hussainara Khatoon Vs State of Bihar 208 that the Art
21 of the constitution which gives the guaranty of Right of Life and Liberty also provides the
right to have speedy justice and speedy trial. The matter came to the apex court when the leading
news paper named Indian express printed a news story related to the condition of the under trial
prisoners of the Bihar jail. The sad thing was that some of them was in the jail for the 10 years
with out there trial even got started Justice P.N .Bhagwati observed that “Delay in justice is
denial of justice and even the delay of one year to start the trial is very bad and disaster in the
justice delivery system and if there is a delay of ten years or the seven years to start the trial is
bad and it is destroying the public faith from the justice delivery system.”

The concept of speedy trial is not directly mentioned in the “Article 21 of the constitution”,
however if the person is deprived from his personal liberty under the procedure which is unfair
and unjust then such act shall be considered the violation of the fundamental rights provided
under the said provisions. The system which does not provide the speedy trial and proceeding
cannot be called reasonable and just and thus it will be violation of the Article 21 of the
constitution.

RECENT TRENDS AND GUIDELINES TO STOP THE FABRICATION OF THE

RECORDS IN THE JUDICIAL PROCEEDING

It is very disturbing to see that those who have committed crime are free in society without any fear of
punishment by the state. There must be fear in the mind of those who go against the law as we can say
the deterrent effect of the law must be there for the Peaceful atmosphere of society. If the fear in the
mind of accused is not there it means that the duties which are given to Executive, legislature and the
Judiciary are not performed by these respective institutions. If the Institutions of the justice delivery
system are trying to protect the criminals it will destroy the whole system. It is sad to say that sometime
the officer having the authority to investigate the matter himself fabricate false evidences to protect the

207
A.R. Antulay Vs. R.S. Nayak (1992) 1 SCC, P. 225.
208
1995 SCC (5) 326 1995 SCALE (4)633.
persons who committed crime and because of this they by themselves protect those who has committed
the wrong.

The number of criminals is free in the society because of the mischief of officers appointed in the
different organizations of the justice delivery system. The agencies are not performing their
duties well and because of this the criminals are enjoying the benefit of this. The big problem in
our justice delivery system today is the fabricating the false evidence and especially by the
officers appointed in the justice delivery system who are appointed to provide justice to the
victims and their families. The Supreme Court has taken this very seriously that in our justice
delivery system the investigating agencies with the help of false report and false affidavit
mislead the court while they are delivering the justice and because of this the victim face
problems to have the justice. under Article 32 one writ petition was filed in the Apex Court in
Afzal‘s Case the writ was of the habeaus – corpus to provide justice to the two minor boys. In
that case the S.H.O. Ambala cantonment filed a criminal case against one Rahim Khan that they
have committed forgery of Railway receipts, cheating and misappropriation. For the purpose of
the investigation the investigating officer had gone to Agra to arrest the accused Rahim Khan,
but he was not present and the investigating agencies failed to catch him. So, they arrested two
minor boys. It is alleged that both of the minors are not only arrested but also they both kept in
the secret place as it was illegal confinement. When the writ of Habeas Corpus was filed before
the Apex Court related to this case in which two persons who were minor are illegally arrested
by the investigating agency. The DGP was directed by the Apex Court to see the matter and find
out the truth and submit his report as soon as possible to the court because the Supreme Court
was worried about the safety of minors. The time period which was given to the DGP was only 6
days and in these 6 days the task which has been given to him was not only to find out where the
minors are detained but also to submit the report in which he has to give the name of those
officers who have misused their power. While the report of the DGP was submitted in the Apex
Court it was surprising that the DGP was giving clean chit to the accused police officers as in
affidavit which was submitted by him in the Apex Court that the accused Police officers are not
liable for any misuse of power as two minors were not detained by them but as per the Apex
Court the affidavit submitted by M.S. Ahlawat, was not so reliable on which the Supreme Court
may satisfy itself. The Supreme Court has directed the District & Sessions judge of Faridabad to
enquire the matter and make a report within six days and submit the same. After this direction
the district judge examined the witnesses and recorded the statement of the persons who had the
knowledge about the facts of the case but the Apex Court was then again not satisfied with the
report of the District & Sessions judge of Faridabad.

At the last the Supreme Court gave the matter to investigate to the Director of Central Bureau of
Investigation and also the enquiry then the Director of Central Bureau of Investigation after the
investigation he submitted the report after enquiring into the matter. On the date of 30.10.1993,
another affidavit was filed by the Mr. Ahlawat in which he denied the fact that there was any
involvement of the police in which they asserted. This statement of DGP that the police officials
are not involved in the illegal arrest of the two minors was proved to be false. Statement of DGP
that police officials are not involved in the illegal arrest of two minors was proved to be false,
this statement was given by him after the investigation done by him but the statement was false
as he was trying to save his Police officers by fabricating the evidences enquiry done by session
judge of that district shows the involvement of the accused officers of the police department in
the illegal arrest of two Minor boys. The Apex court came to know that DGP is giving false
statement and the affidavit submitted by DGP was based on false statement as his intention was
to save Police officers who were facing the accusation of arresting minor boys. Supreme Court
takes this matter as it is contempt of court under Article 129 of the Constitution of India. On the
date of Sep 25th, 1989 C.J.M. got the invitation to come to the police station by the Police
Inspector and because of this on the same day at the 8:40 P.M The C.J.M. visited the police
station, In the police station the C.J.M was offered to have liquor and then when the C.J.M.
refused to have the liquor he was physically beaten by the police officers. One panchnama was
prepared by the police officers and In that drunken state of Chief Judicial Magistrate was shown.
The Hands C.J.M. was tied with the help of the rope and he was sent to the Local Hospital for
the medical examination. He requested that he want to make a call to the district judge but he
was not permitted to make a call and to have a conversation with the District Judge while
examination was going on in the hospital. Two criminal cases are registered by the police against
the CJM, as one case under “Bombay Prohibition Act” and the other under section 506 and
section 32 of I.P.C were registered against him and the bail was not given to him. The DSP was
having knowledge about the fact of this case and he was aware about the wrong done by the
police against the CJM but he did not take any appropriate action against the wrongdoers. The
case came to the knowledge of the Supreme Court when a writ petition was filed.
The Apex Court has appointed the commissioner so that he can make an enquiry and submit the
report to the court about the real facts of the case. The commissioner who was appointed by the
court had the duty to find out the hidden truth of the case. Apex Court held important things and
give directions in the very case. The guideline given in this case to the investigating agencies in
the justice delivery system that investigating officer cannot arrest the CJM in the accusation of a
crime without intimation to the higher judicial authority.

There was another case209 strict of Dhananjay in which one person whose name was Dhananjay
the senior IPS officer was sentenced by the Supreme Court. In this case the Apex Court take a
strict action against home secretary of Haryana Government and also the DGP of Haryana as
according to Supreme court they have committed contempt of court by not giving any response
to the notice of the Apex Court. The Supreme Court shows anger to see the conduct of police
officers who are trying to give benefit to one particular party in the wrong way. The misconduct
done by the police officers or any other officer having authority in justice delivery system gives
wrong gesture to the general public and because of this people lose confidence on the system
which provides justice to them. If the senior police officer instrument to protect his junior from
the accusation of illegal arrest and torture in the custody then the conduct of senior officer is not
good for the health of our justice delivery system. According to the court the IPS officer has
committed contempt of court why not only doing interference in the justice delivery system but
on the other hand by filing the false affidavit in the Supreme Court and try to obstruct the process
of the justice.

There is another case named Haila Kandi Bar Associations Case210 in which the brutality by the
police and the contempt of court is done by the police officers to obtain the illegal motives. If the
duties which are given to police officers are not performed by them and they will try to protect
the criminals then it will destroy the whole system of the justice delivery. It is sad to say that
sometimes the enforcement officers are liable for letting the criminals go as they fabricate false
evidences to protect the persons who committees crime. This case is also very important as in
this case the justice delivery system was discussed by the Apex Court and the court held
important points in this case that what is required to make our justice delivery system more good
for the general public and to be efficient to be more transparent so that the victim can get the
209
Dhanjay Vs State of Haryana AIR 1995, S.C. P. 1795.
210
Secretary, Haila Kandi Bar Associations Vs State of Assam AIR 1996 S.C. P. 1925.
justice and the torture should not be done by the police officer on the accused in the process of
investigation and other stages of the criminal cases.

GUIDELINE TO STOP THE HIGH HANDEDNESS OF INVESTIGATING OFFICERS

For the good and efficient justice delivery system to stop the High Handedness of investigating
officers is essential and this is also one of the important agenda of the authorities engaged in the
justice delivery system. There are number of status was enacted by the parliament but all in vain.
The Supreme Court also take this matter seriously and for that the supreme court checked the
practice of the investigation agencies that whether the investigating agencies has done anything
wrong during the course of the investigation. Generally the investigating agencies are engaged in
the bad practice such as the Custodial torture, deaths of the person during the third degree, fake
encounters; etc. and all these things makes the justice delivery system suffer a lot and the general
public lost their faith from the justice delivery system because of all this. The term investigating
agencies has a wide sense and it includes police and other investigating agencies who has the
authority to do investigation in the justice delivery system. The other problem is that the process
of the investigation by the investigation is very lengthy. Some time it is sad to say that the
official who are involved in the process are engaged in the crime such as the as rape, custodial
torture, murder etc.

There was a case named Inder Singh Vs State of Punjab211 , in that case the supreme court take an
important decision and issued the guideline in this case one police officer of the high rank with
his subordinate police officers faced the accusation of abduction of seven persons. To know the
facts of the crime the enquiry was carried out by the D.I.G., the report made by him shows that
the allegation was true. After the enquiry the D.I.G. said that there must be criminal charge
against the policemen who were engaged in this matter under the charge of kidnapping under the
section 364 of the I.P.C., but the case was not filed against them. The Supreme Court take this
matter very seriously and directed the “Director of Central Bureau of Investigation” to do an
enquiry for the purpose to have the truth and to see that whether the disciplinary action is
required against the accused police officers or not.

211
AIR 1995, S.C. P. 312.
There was a case before the Supreme Court state of M.P. Vs. Shyam Sunder Trivedi and others212
in which the supreme court has laid down the important direction to the police and other
investigation agencies that in the justice delivery system the thing that the accused has done the
act for which he is facing the accusation must be proved in the court and there must not be any
reasonable doubt which shows that he is not guilty and while proving the guilt of the accused the
prosecution must not use the torture practice and unjustified means. The justice delivery system
should be that it must be good for the general public as it must provide the justice to the society
and it must also be of that the general public must have faith on it. The supreme court also said in
this particular case that the good justice delivery system must adopt some basic principles for
example such as it must be credible that the victim must have faith in it as the victim must think
that he will get relief because of the justice delivery system and it must not be so harsh on the
accused as the accused must also has the right to prove that he is not guilty. As the accused is
only a person on whom the accusation is put by the victim and his guilt is not proved till now.
The reason that why the supreme court is bound to give the direction to the investigation
agencies is that the investigation agencies is not working properly and the investigation agencies
is using the authorities given to them in the bad way. The cases of the torture, custodial violence,
and fake encounters are increasing day by day. Some time the because of the unrealistic
approach of the courts the investigation agencies are encouraged to adopt the torture practice in
their investigation. The sad part of our justice delivery system is this that if the investigation
officer is having strong belief that they are protected even if the person who is accused will die
during the investigation if they torture him and no evidence available which indicate that the
person was tortured by them. It was also held by the Supreme Court that we all are living in the
civilized society and in the civilized society the justice delivery system must provide the rights
not only to the victim but also to the accused and they must not go through to the torture as the
constitution of India protects the basic rights of the accused that they will be treated as human as
it is one of the basic principle of the civilized justice delivery system.

OTHER FORUMS dealing in order to provide speedy justice

There are some other forums dealing with the matters in the Indian justice delivery system and
these forums are discussed below.

212
1995, S.C.C. (Crl) P. 715.
NYAYA PANCHAYATS

The age old institution of the Panchayat is an organ to the Justice delivery system. It was a part
of local self government. The framer of the Constitution made a provision after the independence
“Panchayat Raj” in Article 40 of Part IV of the Constitution. Many laws were enacted to give
power to the Nyaya Panchayats so that the Nyaya Panchayats can deal and decide petty offences
and petty civil matters. It was believed that the Panachayats must be given power to deal with the
petty offences and also to solve the petty civil matters so that the Nyaya Panchayats may solve
small matters of the villages and it may save time and energy of the courts. Justice Sona
Sunderam of the Madras High Court said that the panchayat courts ought not to be invested with
criminal justice power because they seem to carved away by the local politics and communal
feelings.213

LOK ADALATS

We can define “Lok Adalat” as the “people’s court”. Members of the Lok Adalat came into
existence to give chance to the people for speedy and costless settlement of their dispute. The
Phrase Lok Adalat are brought from the two words “Lok” and “Adalat”, the meaning of this is
People’s court or public opinion and decision making through deliberation. Judicial Officials are
presiding over Lok Adalats and the principle of fair play; justice and equity are the guiding
principles to provide justice to the justice seekers. In Lok Adalat the matters are decided by the
way of the compromise on the basis of equity, justice and fair play. The Lok Adalats are having
two fold functions. First, it has to provide quick, less technical, accessible, time saving forum for
the resolution of the dispute. Secondly, Lok Adalat has to tackles the menace of the “docket
explosion” in piling number of pending cases before the regular courts.

In the State of Gujrat “Justice P.N.Bhagwati the Former Chief Justice of the Supreme Court” was
the person who establishes the system of “Lok Adalat”. Later the system of “Lok Adalat” was
introduced to other states also such as the State of Maharashtra, Kerla, Andhra Pardesh, Union
Territory of Delhi etc. These courts decide the pending cases before the regular courts by the
way of compromise and the mutual consent of both the parties. The Justice delivery system

213
Venkatchala Vs Panchayat Board, Euthapur AIR 1953 MAD 388.
related to the “Lok Adalat” has a big contribution to provide the justice to the needy; the “Lok
Adalats” are also providing the speedy justice in the society. Our law also provides provisions of
compoundable offences under Section 320.214 There are two types of compoundable offences,
first, the offences which can be compromised without the consent of the courts and secondly,
the offences which cannot be compromised without the consent of the court.

It is provided in the law215 that the court may transfer the case which is not of a serious nature to
the “Lok Adalat” for the settlement as it will save the time of that court and it is also helpful for
the parties as they will get the justice in the less time as compare to the time which normally
taken by the lengthy process of the court. The joint application from both the parties is must for
the application of this process as the court cannot transfer the case to the “Lok Adalat” if joint
application is not made by both the parties which show the intention of them that they are willing
to resolve their problem with the help of the court. In the year of 2002 the act which contains the
provision for the “Lok Adalat” is amended25 and now the new provision enable the parties to
file their matter in the “Lok Adalat” directly, the meaning of this provision is this that now the
parties are not bound to go to the court first and also they are not bound to make a joint
application to transfer the case to the “Lok Adalat”.

The right to “speedy justice” is provided in the “Fundamental Right to the life and liberty
enshrined in Article 21 of the Constitution of India”. The main aim to establish the “Lok Adalat”
is to provide the justice to the people in the time.

SPECIAL COURTS

Besides the above hierarchy of courts, number of special courts is also established to solve the
matters related to SC & ST216 and other special enactments.

FAST TRACK COURTS

The session court cases and other cases which are pending for a long time without any rational
ground must be dissolved and for the disposal of these cases the eleventh finance commission
recommended that 1734 additional courts must be established and these courts will be called Fast
214
Criminal procedure code, 1973.
215
Legal Services Authorities Act, 1987 Section 20(1).
216
Prevention of Atrocities Act, 1989.
Track courts. Those cases which are pending and which comes under the jurisdiction of the
Court of Session is the area in which the Fast Track Court are established to work. The main
purpose of the Fast Track Court is to resolve the long pending cases in time so that the parties of
the case may get justice in time.

The Apex Court said in Brij Mohan Lal Vs Union of India217 that all the states as well as all the
High Courts must ensure that all the vacancies of the Fast Track Court must be filled within 3
months of the date of the judgment. The said judgment itself shows that the value and
importance of the Fast Track Courts and it also shows Fast Track Courts must be taken very
seriously to dissolve the pending cases and for speedy trial.

Alternate Dispute Resolution Mechanism

Alternate dispute resolution has long been identified as a key component in the plan to reduce
pending cases and fresh litigation burdening the courts today. Numerous civil and family m
atters can be settled to the satisfaction of all parties via mediation, arbitration and conciliation
and can greatly reduce litigation costs. A number of steps have already been taken in this
direction with the setting up of mediation and conciliation centres within courts and mandatory
reference to mediation by courts. A number of commercial matters are resolved through
arbitration. However, to avoid unnecessary litigation, lawyers and law students should be trained
to draft sound arbitration clauses. Several instance of litigation have arisen due to faulty
arbitration unnecessarily encumbering courts. A separate Bar for mediators, arbitrators and
conciliators can help foster skills in negotiation and settlement that are substantially different
from those required for court craft.

Recent steps taken by the Government of india to expedite Justice Delivery

Disposal of pending cases in courts is within the domain of the judiciary. No time frame has been
prescribed for disposal of various kinds of cases by the respective courts. Government has no
role in disposal of cases in courts. The Central Government is fully committed to speedy disposal
of cases in accordance with Article 21 of the Constitution and reducing pendency. The
Government has taken several initiatives to provide an ecosystem for faster disposal of cases by
the judiciary. National Mission for Justice Delivery and Legal Reforms was set up in August,
217
AIR 2002 SC.
2011 with the twin objectives of increasing access by reducing delays and arrears in the system
and enhancing accountability through structural changes and by setting performance standards
and capacities. The Mission has been pursuing a co-ordinated approach for phased liquidation of
arrears and pendency in judicial administration, which, inter-alia, involves better infrastructure
for courts including computerization, increase in strength of subordinate judiciary, policy and
legislative measures in the areas prone to excessive litigation, re-engineering of court procedure
for quick disposal of cases and emphasis on human resource development.218

The major steps taken during the last six years under various initiatives are as follows:

1. Improving infrastructure for Judicial Officers of District and Subordinate Courts: As

on date, Rs. 8,644.00 crores have been released since the inception of the Centrally
Sponsored Scheme (CSS) for Development of Infrastructure Facilities for Judiciary in 1993-
94. The number of court halls has increased from 15,818 as on 30.06.2014 to 20,218 as on
22.07.2021 and number of residential units has increased from 10,211 as on 30.06.2014 to
17,815 as on 22.07.2021 under this scheme. In addition, 2,693 court halls and 1,852
residential units are under construction. The Centrally Sponsored Scheme for the
Development of Infrastructure Facilities for Judiciary has been extended till 2025-26 at a
total cost of Rs. 9000 crores, out of which Central share will be Rs. 5307 crores. Besides,
construction of Court Halls and Residential Units, it would also cover construction of
Lawyer‟s Halls, Toilet Complexes and Digital Computer Rooms.
2. Leveraging Information and Communication Technology (ICT) for improved justice
delivery: Government has been implementing the e-Courts Mission Mode Project
throughout the country for Information and Communication Technology enablement of
district and subordinate courts. Number of computerized District & Subordinate courts has
increased from 13,672 (in 2014) to 18,735 as on 01.07.2021, registering an increase of
5,063. New and user-friendly version of Case Information Software has been developed and
deployed at all the computerized District and Subordinate Courts. All stakeholders including
Judicial Officers can access information relating to judicial proceedings/decisions of
computerized District & Subordinate Courts and High Courts on the National Judicial Data
Grid (NJDG). As on 01.07.2021, litigants can access case status of over 18.77 crore cases
218
UNSTARRED QUESTION NO.2754, LOK SABHA, GOVERNMENT OF INDIA MINISTRY OF LAW & JUSTICE
DEPARTMENT OF JUSTICE , (SHRI KIREN RIJIJU)
 and 14.61 crore order/judgements pertaining to these courts. eCourts services such as details
of case registration, cause list, case status, daily orders & final judgments are available to
litigants and advocates through eCourts web portal, Judicial Service Centres (JSC) in all
computerized courts, eCourts Mobile App, email service, SMS push & pull services. Video
Conferencing facility has been enabled between 3240 court complexes and 1272
corresponding jails. With a view to handle the COVID- 19 challenges better and to make the
transition to virtual hearings smoother, funds have been provided for setting up 235
eSewaKendras at court complexes to facilitate lawyers and litigants needing assistance
ranging from case status, getting judgements/orders, court/case related information and
efiling facilities. Rs. 5.01 crores has been allocated for providing equipment in Video
Conferencing cabins in various court complexes to facilitate virtual hearings. Rs. 12.12
crores has been allocated for 1732 Help desk counters for efiling in various court
complexes.

Twelve Virtual Courts have been set up at Delhi (2 courts), Faridabad (Haryana), Pune &
Nagpur (Maharashtra) Kochi (Kerala), Chennai (Tamil Nadu), Guwahati (Assam) and
Bengaluru (Karnataka) to try traffic offences. As on 12.07.2021, these courts have handled 75
lakh cases and realised Rs.160.05 crore in fines. Video conferencing emerged as the mainstay of
the Courts during the Covid lockdown period as physical hearings and normal court
proceedings in the congregational mode were not possible. Since Covid lockdown started, the
District courts heard 74,15,989 cases while the High Court heard 40,43,300 cases (totalling to
1.14 crore) till 30.06.2021 using video conferencing only. The Supreme Court had 96,239
hearings since the lockdown period upto 09.07.2021.

3. Filling up of vacant positions in Supreme Court, High Courts and District and
Subordinate Courts: From 01.05.2014 to 01.03.2021, 35 Judges were appointed in Supreme
Court. 602 new Judges were appointed and 551Additional Judges were made permanent in the
High Courts. Sanctioned strength of Judges of High Courts has been increased from 906 in May,
2014 to 1098 currently. Sanctioned and working strength of Judicial Officers in District and
Subordinate Courts has increased as follows:
 AS ON Sanctioned Strength Working Strength

31.12.2013 19,518 15,115

29.07.2021 24,368 19,259

Filling up of vacancies in Subordinate judiciary falls within the domain of the State Governments
and High Courts concerned.

4. Reduction in Pendency through / follow up by Arrears Committees : In pursuance of

resolution passed in Chief Justices‟ Conference held in April, 2015, Arrears Committees
have been set up in High Courts to clear cases pending for more than five years. Arrears
Committees have been set up under District Judges too. Arrears Committee has been
constituted in the Supreme Court to formulate steps to reduce pendency of cases in High
Courts and District Courts. Further Communications have been addressed by Minister of
Law & Justice to Chief Justices of High Courts and to Chief Ministers on 20.06.2014 and
14.08.2018 drawing their attention to cases pending for more than five years and to take up
pendency reduction campaign.
5. Emphasis on Alternate Dispute Resolution (ADR): Commercial Courts Act, 2015 (as
amended on 20th August, 2018) stipulates mandatory pre-institution mediation and
settlement of commercial disputes. Amendment to the Arbitration and Conciliation Act,
1996 has been made by the Arbitration and Conciliation (Amendment) Act 2015 for
expediting the speedy resolution of disputes by prescribing timelines.
6. Lok Adalats are one of the Alternative Disputes Resolution mechanism u/s 89 of C.P.C. Lok
Adalat has been given statutory status under the Legal Services Authorities Act 1987
recognizing its efficacy as an expeditious, less costly and speedier system of administration
of justice by which Justice Delivery System is strengthened in the country. As per section 19
of the said Act, the Lok Adalat has jurisdiction to take up any case which is pending before
any court or any matter of dispute between the parties which has yet not been brought to the
 court. Lok Adalat take up civil matters and all criminal compoundable matters, whether
pending in a court or at the pre-litigative stage.
LokAdalats are held at National and State levels. National Lok Adalats are held on single
day in all the Courts and Tribunals of the country on dates decided by NALSA in the
beginning of each calendar year. State Legal Services Authorities also organize Lok Adalats
from time to time as per the local circumstances and requirements. In the period of
turbulence caused by the Covid pandemic, Legal Services Authorities appropriately
responded by creatively adapting to the new normal and moving Lok Adalat to the virtual
platform.
E- Lok Adalat is a process to settle disputes, combining technology and alternative dispute
resolution (“ADR”) mechanisms which offers a faster, transparent and accessible option.
Although, these Lok Adalats take up both pending and pre-litigative matters, the focus is on
reducing the pendency in the courts by taking up more matters actually pending in the High
courts and also lower courts. Lok adalats are organised at District and Taluk levels,
including Talukas of remote and far flung areas also. To promote Lok Adalat, a provision is
made to refund/reimburse court fee paid by party (ies). Parties can appear and put up their
case without any representative.
7. Initiatives to Fast Track Special Type of Cases : The Fourteenth Finance Commission
endorsed the proposal of the Government to strengthen the judicial system in States which
included, inter-alia, establishing Fast Track Courts for cases of heinous crimes; cases
involving senior citizens, women, children etc., and urged the State Governments to use the
additional fiscal space provided in the form of enhanced tax devolution form 32% to 42% to
meet such requirements. As on 30.04.2021, 870 Fast Track Courts are functional for heinous
crimes, crimes against women and children etc. To fast track criminal cases involving
elected MPs / MLAs, ten (10) Special Courts are functional in nine (9) States/UTs (1 each in
Madhya Pradesh, Maharashtra, Tamil Nadu, Karnataka, Andhra Pradesh, Telangana, Uttar
Pradesh, West Bengal and 2 in NCT of Delhi). Further, Government has approved a scheme
for setting up 1023 Fast Track Special Courts (FTSCs) across the country for expeditious
disposal of pending cases of Rape under IPC and crimes under POCSO Act. As on date, 28
States/UTs have joined the scheme for setting up of 842 FTSCs including 363 „exclusive
POCSO Courts‟. Rs.140 crore was released in the financial year 2019-20 and Rs. 160.00
crore has been released during the financial year 2020-21 for the scheme. Rs. 39.77 crore
has been released till June 2021 for Financial Year 2021-22. 640 FTSCs are functional
including 338 exclusive POCSO Courts, which disposed 50484 cases as on 31.05.2021.
In addition, to reduce pendency and unclogging of the courts the Government
has recently amended various laws like the Negotiable Instruments (Amendment) Act, 2018,
the Commercial Courts (Amendment) Act, 2018, the Specific Relief (Amendment) Act,
2018, the Arbitration and Conciliation (Amendment) Act, 2019 and the Criminal Laws
(Amendment) Act, 2018.
 CAUSES AND CONSEQUENCES : JUSICE DELIVERY SYSTEM
INTRODUCTION
Justice delivery system is an action in which government’s legal structure is performed. The
assumed goal of the Justice delivery system is to provide justice to all those who want to
access the legal system. Justice Delivery system is the basis of rule of law and governance in
a society. The concept of justice is as old as reason and growth of human society is. The two
most essential functions of any state are; war and administration of justice and if the state is
not able to perform these functions then it cannot be rightly called as state. Justice is a
concept of moral rightness, based on ethics, morals, rationality, natural law, religion, equity
and unbiased. In ancient society, Law was divided in two categories i.e. Laws set by God for
man and laws made by man for man. There are various types of justice. There are merits and
demerits of all modes of justice.219
According to Blackstone, justice is the source from where the idea of right, duty and equity
evolves. Salmond also has opined that though every man wants others to be righteous and
just to him but he himself being ‘selfish’ by nature may not be reciprocal in responding
justly. That is why, he emphasizes that some kind of external force is necessary for
maintaining an order in society. According to Salmond, without justice, an orderly society is
unimaginable.220
The concept of justice has become more discernible with the growth of state, which ensures
justice to the people with the sanction of law. With the development of law, the concept of
Justice also enlarged its facets to different fields of human activities. For example, in
modern-day, we have civil Justice, criminal justice, economic, social Justice and so on. The
essence of the legal justice lies in ensuring uniformity and certainty in law and that the
rights and duties of each other are duly respected by the people. In other words, the citizens
219
Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory 164 (Central Law Agency, Allahabad, Vth Ed.
2008).
220
Ibid.
 are expected to shape their conduct in such a way that they can ensure that they must not
violate the rights of other persons and at the same time, they abide by the duties imposed
upon them by the law.221

The Indian justice delivery system is largely based on the British pattern of justice delivery
system. During the British rule in India, the then existing Indian judicial system encountered
several major changes. In the beginning, the Courts set up by the East India Company were
exclusively managed by the executive. Thereafter, a new judicial system was introduced in
the presidency town of Bombay, Madras and Calcutta which was also later on replaced by
the Supreme Court. At that time, the Chief Justice and other judges of Supreme Court were
holding office only during the pleasure of the British Crown. The Supreme Courts were
eventually replaced by the High Courts in the year 1862, consequent to the enactment of the
High Court Act, 1861. Under the Government of India Act, 1935, a Federal Court was
established at Delhi in the year 1937, which after the independence, was designated as the
Supreme Court of India.222
In India, judicial and extra judicial remedies of Justice are the remedies which an aggrieved
person can avail. Judicial remedies can be availed only through the Courts whereas extra
judicial remedies can be availed by any other medium but not the Courts. In the Court
system, proper procedure is followed by the Court with the assistance of advocates and
parties. There are merits as well as demerits of this procedure. This procedure takes time
because Courts are overburdened with lot of cases. The extra judicial remedies are provided
in the form of arbitration, conciliation, negotiation, mediation and Lok Adalat. Judicial
remedies are very rigid while extra judicial remedies are very flexible. Under the course of
judicial remedy, appeal can be filed but in extra judicial remedy, the decision of concerned
authority is final and binding on the parties to the case.
The word “Justice” is the harmonious settlement of individual behaviour with the general
welfare of the society. An act or behaviour of a person is said to be just if it encourages the
general well-being of the society. Hence, the accomplishment of the common good as
distinguished from the good of individuals, is the essence of justice. Justice is a theoretical
concept and it is discussed in different areas of knowledge including law, philosophy,
221
Ibid.
222
Id at P. 117
 economics and administration. It is not easy to define the word ‘Justice’. According to Hans
Kelson, no other question than the meaning of justice has been the object of so much
thorough thinking by the most renowned thinkers, from Plato to Kant, and till now but this
question is still unanswered, as it ever was. In a way, the act of doing justice relates to
pronouncing of decisions on the freedom, and often on the life, of human beings. At the
broader level of society, administration of justice means maintaining the social structure in
harmonious operations. John Rawl, popular American political philosopher, while observing
the importance of Justice has said that Justice is the first virtue of social institutions. Justice
has always been the main ideal of humanity. It has been the resting wish behind all social
agitations.223 That all those who want to change the old system, and those who defend the
old system, and those who have neutral voice, want peace at any cost and they all do so in
the name of justice. Justice provides support for the most supreme sacrifices as well as for
the worst work.224
Justice under various names such as nature, logic, conscience, economy, humanity, science,
morals, history, politics, literature and art etc., governs the world. Whatever name may be
given to ‘justice’, it is the earliest in the human soul, most fundamental in society and most
sacred among the ideas. It is the essence of religion, the sum total of reason and the secret
object of faith and knowledge. Nothing can be imagined more strong, universal and
complete than justice. Justice is established on the fact what the majority of right thinking
people regard as fair.
The Supreme Court of India has also defined the expression ‘Justice’ in many of its
pronouncements. For instance, in the case of Girimallappa v. The Special Land Acquisition
Officer M and MIP and another225 , the Supreme Court held that justice is an illusion as the
meaning and definition of justice varies from person to person, party to party and
circumstances to circumstances. The party feels having got justice only and only if it
succeeds before the Court, though, it may not have a justifiable claim. The Supreme Court
also explained that Justice is the virtue by which the Society or Court or Tribunal gives to a
man what is his due, opposed to injury or wrong. Justice is an activity of rendering what is
right and equitable with regard to one who has suffered a wrong. Therefore, before

223
John Rawls, A Theory of Justice 3 (Harvard University Press, Cambridge 1st Revised Ed. 1999).
224
V.R. Krishna Iyer, Indian Social Justice in Crisis 16( Affiliated East-West Press, I st Ed. 1983).
225
AIR 2012 SC 2012.
delivering justice, the Court has to be very cautious that it has to do justice in exact
compliance of some obligatory law for the reason that human actions are found to be just or
unjust.
Judges are not the law makers and it is not their duty to correct and explain the defective
provisions of law. Their only function is to administer the law of the country. It is correctly
said that in modern times, the administration of justice, as per law is commonly considered
as implying recognition of fixed rules.
A few instances can be given to show what we understand by justice according to law. A
creditor has to realise some money from a debtor. However, he files the suit after lapse of
three years. Thus, equity may be on his side but his suit must fail on account of the law of
limitation, which specifies that a suit for recovery must be filed within three years.
Likewise, a person may have actually committed a murder. He may confess his guilt before
a police officer who is an honest man but still he can not be convicted as the law does not
admit the confession made to a police officer. If he is convicted on the basis of his
confession before the police officer, his conviction has to be set aside as it is opposed to the
law of the country. Hence, even if, a guilty person is escaped, judges are not cared about it.
They do not play and are not expected to play the role of legislators. If a law is defective, it
is the duty of the people to demand from their legislators to correct the said defective law.
However, so long as a particular law is on the statute book, the same has to be enforced,
unmindful of the consequences. Law may be blind and hence, justice also becomes blind,
but there is no help for it. Judges are expected to deliver justice according to the law of the
land and not according to what they consider to be just under the particular circumstances.
The Indian judicial process is now com m only associated with inordinate delay. The entire
court system is overburdened with cases and the slow disposal rate of cases greatly ham pers
the quality of justice delivered. The reasons for delay are numerous and stem from very
layer of the justice system. There is a systemic failure to address the Issue of efficiency of
the judicial process. The problem lies not only in the lack of institutional facilities, but also
in the very mindset of the legal community.
Given the pervasive nature of the problem , which has now simply come to be accepted as
corollary of the justice system , a range of reform is required legal institutional and
technical. This has been widely noted among political and judicial circles. The Ministry of
 Law and Justice launched the National Mission for Justice Delivery and Legal Reform s in
2011 with this very goal in mind. Some measures towards legal reform have already been
taken by the Parliament. Amendment of the Negotiable Instruments Act, 1881, to reduce the
enormous number of cheque bounce cases and amendment of the Motor Vehicles Act, 1988,
to reduce litigation related to challans are being considered. However, these changes do not
address the root cause of the travails that plague the judicial system .

Major causes
Judiciary is the third pillar of Indian democracy. It protects the fundamental rights and
duties of the people of India. But there are various issues and the challenges that Indian
Judiciary faces. The major issues are as follows:
Backlog of Cases
The inadequacy in the strength of the judges in subordinate judiciary to deal with the arrears
and the increase in the number of freshly instituted cases contributes to the piling up of
cases. It brings a sense of burden, frustration and helplessness among the litigants public,
which for no fault of its’ own, is prevented from getting appropriate redress from the Court
in time. With the increase of population, the institution of cases is also increasing but
disposal rate has not been moving any far and this has resulted in piling of cases.226
A study has revealed that during the period, between 1951-1990, the population of the
country has increased by 127.6% and the total reported crimes under the Indian Penal Code
have gone up by 146.9%. Moreover, due to long delays in disposal of cases coupled with
declining rate of conviction, there can be no denial of the fact that the criminal law has
ceased to have a deterrent effect upon the criminals. The huge mounting of pendency in the
Courts of the country is the biggest challenge before the Indian Judiciary.227
Data obtained from High Courts indicates that the judicial system is severely backlogged. It
is also not been able to keep pace with current filings and thus, aggravated the problem of
backlogs. The judicial system in India requires a massive influx of judicial resources in
order to dispose of the backlog and keep pace with the current filings. The data also

226
R. Sethi, Criminal Justice System: Problems and Challenges 1 Aligarh Law Journal, Vol. XIV & XV, 1999-2000.
227
Ibid.
 indicates the need for taking urgent measures for increasing the number of judges in order to
ensure timely justice and facilitate access to justice for all sections of the society. 228
In its 125th Report, Law Commission has recommended for introduction of shift system in
the Court to clear the backlog of cases by employing retired judges. It has been statistically
established that there is inordinate delay in filling of vacancies and therefore, an urgent step
is necessary to deal with it forth- with before long term decision is taken in the form of
setting up a new forum for judicial appointments. In the report, it was pointed out that the
vacancy occurs on retirement or death of a Judge in position. Since, death is such an
uncertain event, therefore, no one can foresee it and rationally deal with it in advance.
However, retirement is well known in advance and thus, it is necessary that the process for
filling up the vacancy must start considerably in advance before the actual date of the
retirement of a Judge which would cause the vacancy. However, no response to this
suggestion was received and the situation remained unchanged. Therefore, a proposition was
put for the consideration of the Chief Justice of India that hereafter whenever a Judge
reaches the date of his retirement, he should not quit from that day onward, unless his
successor is ready to take over.229
The Hon’ble Prime Minister of India, at ‘the Conference of Chief Ministers and Chief Justices’ held
on 16th of August, 2009, described the huge arrears and case backlogs as the “scourge” of the Indian
legal system. However, the problem of arrears is not new and various attempts have been made to
tackle it. A practical, effective, detailed and achievable system for tackling arrears must be
attempted. It is in this spirit that we must have a vision plan, to reduce the pendency of cases from 15
years to 3 years. An efficient legal and judicial system, which delivers prompt and quality justice
reinforces the confidence of people in the rule of law, facilitates investment and production of
wealth, enables better distributive justice, promotes basic human rights and enhances accountability
and democratic governance.230
Defective System of Appointment and Training of Judges
The procedure for recruitment of judges is also very defective. The delay in disposal and
accumulation of arrears in trial Courts are principally due to the judicial officers themselves.
The country requires adequately trained and capable judicial officers to apply and

228
20th Law Commission of India, 245th Report on Arrears and Backlog, 2014, P. 54.
229
11th Law Commission of India, 125th Report on the Hon’ble Supreme Court: A Fresh Look, 1988, P. 19.
230
Ibid.
 administer the laws and it also requires to give comprehensive training for not less than a
year.231
In All India Judges Association v. Union of India 232, it was observed by the Court that most
of the states do not have separate and special academy for imparting training to newly
appointed judicial officers. Training of seven days to one month is given, which is not
appropriate and fruitful. Considering the fact that from the first day of his/her assuming
office, the Judge has to decide, among others, questions of life, liberty, property and
reputation of the litigants, to induct graduates with little experience to occupy seats of such
vital powers is neither prudent nor desirable. It is the need of the hour to build capacity in
the judicial officers. At present, after their induction in judicial services, judicial officers are
imparted training in the State Judicial Academies for one year and thereafter, in-service
training programmes are organized for the Judicial Officers, to further build their capacity.
However, such programmes need to be accelerated by facilitating additional support for
these initiatives. The study reveals that the provision of Rs. 250 crores for the period 2010-
15 had been made and allocated to states in proportion to the number of Courts in their
respective jurisdiction.233
The main institution responsible for the training of the Judges is the State Judicial Academy.
Though, some state judicial academies are well equipped with good infrastructure to impart
training to newly appointed Judicial Officers but the others have a very little infrastructure
and few facilities to impart good training. It is also the necessary for the State to support the
state judicial academies to enable them to organize programmes throughout the year. The
study reveals that an amount of Rs. 15 crore per High Court for the 20 High Courts, which
works out to Rs. 300 crores have been funded by the Central Government. These funds may
be used for creation of new academies in states where they do not exist, or for providing
additional facilities, where they are already in existence.234
JUDICICIAL ACCOUNTABILITY AND TRANSPARENCY
It is well known proposition that Rule of Law sustains democracy and it is equally true that
the task of maintaining the Rule of Law rests upon a bold and independent judiciary. It is,

231
1st Law Commission of India, 14th Report on the Reform of Judicial Administration, 1958.
232
AIR 1993 SC 2493.
233
Report of 13th Finance Commission of India, 2010-2015, P. 221.
234
Ibid.
 therefore, imperative that the actions of judges are transparent and constitutionally sound.
The judiciary cannot afford to adopt an uncritical attitude towards itself. Judges, at all levels,
must make themselves accountable.235 Judicial independence does not mean the absence of
accountability. Today, the judiciary cannot escape close scrutiny of its performance and the
conduct of its members; it thus ensures transparency.236
CORRUPTION
The act of administering justice is not only of great importance but it is pious also. In the
society, it is considered to be a function of Devine nature. Judicial Services are designed to
be a service of great honour and dignity. However, the realism demands that we must
acknowledge and not remain unaware of the fact that there has been a slow and gradual
deterioration of the image of the judiciary. The ultimate analysis of the image of the
judiciary depends upon the way the cases are handled upon by it and the extent of
confidence the Courts inspire in the parties to the cases. Therefore, when an effort is made
to analyze the causes which are deteriorating the image of the judiciary, it was found that
there is difficulty in putting one finger on a particular cause and say that this is the particular
reason which is responsible for loss of faith and respect of the society in the judiciary.237
It has been found that numbers of factors are responsible for deterioration of the image of
the judiciary. It can be because of degradation of Bar and the Bench or it can be because of
some defect in the entire judicial system or it can be because of pressure of the present day
society coupled with desire of people to make money at the shortest possible time, or it can
be because of the increased tendency in everybody to be materialistic and so on and so forth.
In other words it will be difficult to pin point one single cause and say ‘fix this problem and
judiciary will be free from corruption’.238
From the time immemorial, judiciary has enjoyed a great reputation for honesty and
integrity. In the past, even the harsh critics of the judicial system, who would found fault
with the punctuality of the legal process, cost involved in the dispensation of justice and the
uncertainty involved in decision making, which weighed heavily on the litigant, would not

235
S.P. Verma, Indian Judicial System-Need and Directions of Reforms 16 ( Kanishka Publishers Distributors New
Delhi, Ist Ed. 2004).
236
Dr. Sunil Deshta & Kamal Jeet Kaur Sooch, “Philosophy of Judicial Accountability” 45 An Introspection, Civil
and Military Law Journal 60 (2009).
237
Id at P. 134.
238
V.R. Krishna Iyer, Accountability of Professions, IBR, Vol. 14, P. 651.
 accuse the Judge of corruption except in very rare cases. But in recent times, this monster is
rearing its ugly head in the judicial system also. The causes are not far to see. The
emoluments of the judges and the amenities enjoyed by them are very little when compared
with the executive officer of the same status.
The problem of corruption is extremely contagious and a judicial officer succumbs to it
when he/she sees it prevalent all around him/her. Further, the category of cases, which are
more frequent nowadays like land acquisition matters, bails etc. have a wide scope of
judicial discretion which tend to corrupt even the honest judges specially when there are
unscrupulous lawyers who are willing to dangle tempting baits before them. Corruption may
assume many forms other than monetary corruption i.e. sometimes subtle, sometimes
sophisticated-nepotism, favoritism, communal, caste, or religious bias etc.239
Today, the decline in the moral ethics of judges of even constitutional Courts in India is
visible, visceral and venomous. These days, we are witnessing the transformation of the
country into a predatory society, where the corrupt and their henchmen prey on the hopeless
and the helpless. There has been a central loss of character among the people including the
judges. For instance, to begin with the Madras scandal, where a case arose from the
discovery of huge quantity of money at the residence of Justice K. Veeraswamy, the then
Chief Justice of the Madras High Court. However, when the Central Bureau of Investigation
tried to launch a prosecution against him for corruption, the Apex Court restrained it by
holding that neither a First Information Report (FIR) can be registered against a Judge nor a
criminal investigation can be carried out against him without prior approval of the Chief Justice of
India.240
In a similar kind of instance, where allegations were made in respect of involvement of
Mysore High Court Judges in a sex-scandal, the Supreme Court refused even to release the
committee's report on the ground of confidentiality and exonerated all the Judges allegedly
involved in the scandal.241 The question of credibility of the higher judiciary has once again
come into focus, when a report suggested that a substantial number of High Court Judges
and the machinery appointing them, have disregarded the requirement of Bar Council of

239
Alladi Kuppusvvami, Some thoughts on Judicial Reform, Indian Bar Review, Vol.10 (3), 1983, P. 432.
240
Rajneesh Kumar Patel, Administrative of Justice in India-Ethics and Accountability 334(Deep & Deep
Publications Pvt. Ltd., New Delhi, Ist Ed. 2011).
241
The Judiciary, Frontline, Vol. 19, Issue 21, 2002, P. 13.
 India Rules as well as the ethics provided by the restatement of value of judicial life,
adopted by the Supreme Court in 1997. What is shocking is that in large proportion,
relatives of the working Judges are practicing before them. This may be found across the
country. Not much before, the Bar Council of India forwarded a list of 131 judges (out of a
total 499) in 21 High Courts and 180 advocates with their names and nature of relationship
with the concerned Judge, to the Union Law Ministry. The said list, compiled on the basis of
inputs supplied by the State Bar Councils, was released by Shri Adish C. Aggarwala, the
then Vice President, of Bar Council of India, to the media. The Bar Council of India
appealed to the Central Government and the Supreme Court to transfer such judges to other
states.242
PROBLEM OF DELAY IN COURT
The problem of delays is not a new one. It is as old as the law itself. However, in recent
times, it has assumed such a gigantic proportion that if it is not solved speedily and
effectively, very soon it will crush completely the whole structure of our judicial system.
Legal delays have always been proverbial.243 The delay in the disposal of cases can also be
‘judge made’, lack of punctuality, laxity and lack of control over the case-file. Further,
Court proceedings also contribute in no small measure to the delay in disposal of cases. The
grant of unnecessary adjournments on the mere asking or on account of ‘strike call’ further
adds to the problem.244 Further, not adhering strictly to the Court timings is another serious
anomaly and must be avoided at all costs. The delay in pronouncing judgments by the
Judges is yet another problem on which judges at all levels must address themselves. Both
Bench and the Bar, as partners in the great task of administration of justice must resolve not
to become a party to slow motion justice.245
As per the report of the Arrears Committee, 1989-90, the unfilled vacancies in the High
Courts are mainly accounted for the accumulation of cases as loss of mandays was directly
proportionate to the accumulation of cases. It is observed by the committee that in the last
50 years, no scientific study has been undertaken by the Central Government or the State
Governments to assess the needs of the judgestrength, more particularly in the subordinate
242
Id at P. 345.
243
C.L. Agrawal, Laws’ Delay and Accumulation of Arrears in the High Courts, The Journal of Bar Council of
India, Vol. 7(1), 1978.
244
Supra note 235.
245
Ibid.
 judiciary. The report suggested that a proper study is needed to work out the requirements of
the infrastructure and number of judges in the country, on the basis of pendency, rate of
inflow of legal matters into the Courts and the estimated growth of litigation in the future.
The ratio of judges per million populations in our country is the lowest in the world.
Though, it must not be forgotten that by merely raising the strength of the judges in the
subordinate Courts and the High Courts, the problem of delay will not be solved
automatically, but at the same time, in the present scenario, strengthening the judiciary by
inducting good number of Judges, is the certainly the need of the hour. It is also crucial that
the right appointments are made, considering the merit, suitability, ability and integrity of
the persons so appointed. An unfilled vacancy may not cause that much harm as a wrongly
filled vacancy may cause.246
In Lok Prahari Through Its General Secretary S.N. Shukla I.A.S. (Retd.) v. Union of
India247 , the problem of backlog of cases in High Courts and Lower Courts was highlighted
before the Supreme and therein the Supreme Court made recommendation for appointment
of retired Judges at sittings of High Courts to offer services in larger interest of Judiciary.
The Supreme Court held that we have taken the first step with the hope and aspiration that
all concerned would cooperate and retiring/retired Judges would come forth and offer their
services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that
too at this stage. If problems arise, we will endeavour to iron them out. We must set aside
apprehensions, if any, to chart this course and we are confident that there will be a way
forward.
CHALLENGES FACED BY INDIAN JUDICIARY
Though, Indian Judicial System is one of the strongest amongst all the judicial systems all
across the world but it is also facing certain issues and challenges, which is making its
functioning almost ineffective and due to this ineffectiveness, people are losing their trust
and faith in the Indian Judicial System. They are unwilling to approach the courts to redress
their problems. Thus, it is of ultimate importance that the judiciary must overcome the
challenges appearing before it and reassert its faith and trust in the hearts of the people of
the country. The challenges, which the Indian Judiciary is facing are as follows:

246
Id at P. 18.
247
AIR 2021 SC 2019.
 Procedural Restraints in Courts
In Courts, a large number of cases are fixed on a day on which there is hardly a chance of
their being taken up for hearing and for effective proceedings. Moreover, the Courts spend
approximately one-third of their precious court time in calling the said cases, only with a
view to adjourn them to a future date. The time so spent by the Courts for this purpose can
hardly be said to have been put to any constructive use. Thus, the cause lists must be
maintained by the courts in such way that in every case fixed for hearing on a particular
date, the court could apply its mind and some effective proceeding could take place.
Moreover, the litigants have to spend a considerable amount of time in obtaining certified
copies of the documents from the courts. The Procedure for obtaining certified copies of the
documents must be simplified and litigants must be able to obtain the copies of documents
from the courts without wasting much of time.
Poor Infrastructure
India has the lowest judge population ratio in the world. During the last 50 years, the
population as well as the litigation in India has increased by multiple numbers but
proportionately there is no increase in the strength of judges. Moreover, the judicial
infrastructure has also not improved much. In its 120th Report, the Law Commission found
that India had 10.5 judges per million of population whereas the corresponding figure in
England, it was 50.9, in Australia it was 57.7 and in USA, it was 107. Though, the Law
Commission had recommended 50 Judges per million of population instead of only 10.5 per
million but the said recommendations have not been implemented till date and still the
problem of Judge Population ratio is persisting in India. The anxiety of all concerned about
quick dispensation of justice has also been succinctly discussed by the Supreme Court in All
India Judges Association v. Union of India248, and in P. Ramachandra Rao v. State of
Karnataka.249 In P. Ramachandra Rao250 , the Supreme Court held that delay in trial is
generally caused due to :-
(i) absence of, or delay in appointment of, public prosecutors proportionate with the number
of courts/cases;
(ii) (ii) absence of or belated service of summons and warrants on the accused/witnesses;

248
(1993) 4 SCC 288.
249
AIR 2002 SC 1856
250
AIR 2002 SC 1856.
(iii) (iii) non-production of under trial prisoners in the Court;
(iv) (iv) presiding Judges proceeding on leave, though the cases are fixed for trial;
(v) (v) strikes by members of Bar; and
(vi) (vi) counsel engaged by the accused suddenly declining to appear or seeking an
adjournment for personal reasons or personal inconvenience.

The training infrastructure, at the level of Central governments as well as at the level of
State governments, should be strengthened for imparting training to the fresh recruited
judges and also to the in-service personnels. Adequate number of officers must be posted in
the training institutions and they should be given good monetary incentives.

Expensive Justice

The high cost of litigation is yet another challenge which is faced by the litigants in India
and requires to be addressed by both the Bar and the Bench. We must admit that even after
more than seventy years of independence, backward and weaker sections of the society do
not feel that they also have equal opportunities for securing justice because of their socio-
economic conditions. The Government has demonstrated its’ bona fides and resolve in that
behalf by enforcing and supporting the Legal Services Authorities Act, 1987 which aims at
providing a protective umbrella to the weaker sections of the society against injustice and
giving it adequate funds. National Legal Services Authority has also introduced various
schemes to ensure speedy and inexpensive justice to the poor and downtrodden section of
the country. The National Legal Services authority had also introduced a scheme for
deputing Legal Aid Counsel in every Court of Magistrate in the country so that the poor
prisoners in custody get immediate and free of cost legal assistance. The National Legal
Services Authority has also initiated steps for establishing permanent and continuous Lok
Adalats in all the districts of the country for providing a statutory forum to the litigants for
amicable settlements of their disputes. Efforts are also on to establish such Lok Adalats in
different government departments, statutory authorities and autonomous bodies, so that the
citizens problems vis-a-vis these departments are settled through negotiations in the
presence of Lok Adalat Judges. However, despite all the efforts on the part of the
 government and the Judiciary, the problem of expensive justice still subsists and is one of
the biggest challenge before the Judiciary.251

Threat to Independence of Judiciary

Independence of judiciary has always been a hot topic of debate in India. It has agitated the
minds of jurists, politicians and the common men. There are arguments both in favour and
against the concept of judicial independence. The supporters of absolute independence of
judiciary say that democratic system cannot be possible in the absence of an independent
judiciary because rule of law can only be maintained by a Supreme Judiciary. The scope of
judicial power and its independence are of greatest importance in day to day life. It is always
acknowledged that the Constitution of modern democracy governed by the rule of law,
practically guarantees judicial independence.252 The basic need for the independence of the
judiciary rests upon the following points amongst others i.e. to keep a check on the
functioning of the other organs of government i.e. executive and legislature, to interpret the
Supreme law of the land i.e. the Constitution and need for making a progressive and
purposive interpretation.

Less use of Technology

Today’s world is world of technology and in present times no institution can sustain and
excel unless it is well equipped with the new technology. However, the Indian Courts lacks
in terms of use of technology. In order to have a more effective judiciary, it needs to adopt
the technology. This will reduce the huge amount of paperwork involved. The database of
the court is also not maintained at one place. There is no recording of the proceedings and
hearings of the Court also. Thus, there is a great need to use better technology for recording
the statements and for other purposes such as for keeping record of Court process, by
installing Cameras in the Courts.

In Swapnil Tripathi v. Supreme Court of India253, the Supreme Court held that the
proceedings of Supreme Court shall be live-streamed in the larger public interest. The
251
Supra note 235 at 20.
252
G. Manoher Rao, G.B. Reddy & V. Geeta , Judiciary in India-constitutional Perspective, 345 (Asia Law House
Hyderabad, Ist Ed. 2009).
253
AIR 2018 10 SCC 628.
 Supreme Court also directed that appropriate Rules be also framed soon under Article 145
of the Constitution of India in this regard.

It is worth nothing here that in the last year where the entire world was worst hit by Novel
Corona-Virus (Covid-19) and at that time the necessity of technology in courts was felt the
most. It was realized that it is the time where the courts should be well equipped with the
technology so that the justice dispensation system should not come to an halt even when the
Judges, the Lawyers and the litigants cannot come to the court. During these times, the
Supreme Court also directed that in the wake of prevailing conditions of Novel Corona-
Virus, the High Courts and trial courts should use videoconferencing and other technology
to hear cases and help ensuring social distancing. When the central government imposed 21
day complete lockdown in the country so as to contain the spread of corona virus, the
Supreme Court observed that use of technology cannot be seen as temporary issue.
Technology is here to stay. A Three Judges Bench of the Supreme Court, headed by
Hon’ble the Chief Justice of India Shri S.A. Bobde along with Justice D.Y. Chandrachud
and Justice L. Nageswara Rao, heard the matter through video conferencing and issued the
directions that High Courts should decide the modalities. The Supreme Court held that
‘Covid-19’ makes social distancing necessary and there is a need to ensure that presence in
court premises do not lead to infections and thus, until appropriate rules are framed by the
High Courts, video conferencing shall be used. The Supreme Court also directed that the
High Courts can use any application, which works in their jurisdiction for video
conferencing.254

Need for Restraint and Caution

Judicial activism and judicial restraint are two sides of the same coin. Thus, it is always
essential for the judiciary to keep judicial restraint in the exercise of its functions. In order to
ensure that judicial activism does not become ‘judicial adventurism’ and lead a Judge to
pursue his own notions of justice and beauty, ignoring the bounds of his jurisdiction,
limitations of law and the binding precedents, the Courts must act with proper restraint and

254
Ibid.
 self-discipline. Failing that, the law will not only develop along uncertain lines but the
judiciary’s image may also get tarnished and its respectability may get eroded.255

A Court should only create rights where they are certain that they can be vindicated and its
order can be enforced. The danger of creating a multiplicity of rights without the possibility
of adequate enforcement is a real one. The judiciary should not become an institution of
mere form, bereft of any substance. There are real limits, which the judicial process should
attempt to accomplish. The decisions of the Courts should be within the zone of juridical
legitimacy and they must not ignore authoritative sources and shall not become inconsistent
or in coherent with the larger body of the law.256

Lack of Interaction with the Society

In order to maintain an effective judiciary, it is necessary that judiciary should be an integral

part of the society. The interaction of judiciary with the society is must and it should be
regular as well as relevant. There are several countries in the world, which involve their
citizens in judicial decision making. However, in India, there is no such set-up. However,
there is great need that the citizens shall take active part in judicial activities so as to build
an effective judicial system.

Critical Appraisal

Whenever, there is a dispute between the Centre and State, between one State and the other
State/States and between the states and the litigants, Judiciary is the only organ which
controls the dispute and passes the judgment. Judgment passed by the Judiciary is binding
on all whether it is citizen(s) or government(s). Judiciary is the guardian of the human
rights, protector of the Constitution and promoter of peace and cordiality in India. It has a
check and balance over the legislative and executive actions of the Government. With the
above discussion, it can be concluded that Judiciary is the main pillar of the justice delivery
system and backbone of the democracy. When people have any grievances, they come to
Court in order to get their redressal. The judiciary has to act as an alarm clock, not as a time
keeper. The judiciary is final arbiter and an ultimate protector of our human rights and

255
Supra note 235 at 13.
256
Id at P. 14.
fundamental rights. The Supreme Court of India is the highest Constitutional Court, which
can be accessed directly by citizens under Article 32 of the Constitution for the redressal of
their grievances regarding violation of fundamental rights. However, there are certain
emerging issues and challenges faced by the Indian judiciary which are causing hurdles in
the way of dispensation of Justice by it. The pendency of cases, delay in trial, poor
infrastructure, judicial accountability and transparency are some major issues and challenges
which require immediate and serious attention of the policy makers and the executive. If
these issues are not addressed, it will deeply affect the efficiency of Indian Judiciary and the
faith of the people in judiciary will be shaken which may ultimately result into constitutional
crisis.