Being Aggrieved by inordinate delay and expenses, some activists have raised an issue of judicial accountability and reforms in the judicial system. On the other part, an argument is advanced that as the judiciary is under a sacred duty to protect the Constitution, it deserves independence, not accountable to any authority. To my mind, judicial accountability is not an issue for the reason that judiciary is also one of three organs created by virtue of the Constitution. Apart from this constitutional duty, the judiciary stands in parity with other two organs of the state, i.e. the legislature and the executive. Our Constitution begins with the words, “we, the people of India” and it is dedicated to the people of India. It is undoutable that every organ is obliged to do its activities towards securing the goals set out in the Preamble of the Constitution. Legislature is accountable and no confidence motion can be tabled in the House and the Govt. in  power cab be thrown out. Art. 311 prescribes the procedure for dismissal, removal and reduction in rank for inservice employees of the State. Similarly, there can be no question about judicial accountability. But the problem is that we have not evolved any system (except impeachment) under which the judiciary becomes or can be held liable.

In ordinary parlance ‘justice’ means justice according to law, i.e. pronouncement of a judgment declared by a law court on a dispute between the parties. But in the modern concept, justice constitutes a different meaning. As per the modern conception, justice means the creation of a social order in which one can legitimately claim to live with dignity. Of course, such social order is to be created by executive wing of the state. But the judiciary can offer a supportive role in the creation of such social order.

As per the modern conception, justice means the creation of a social order in which one can legitimately claim to live with dignity

Our Constitution is truely considered to be one of the best constitutions in the world. But by setting up modern ideas in our Constitution does not result in our society becoming modern . Our judiciary, too, must contribute to the progress of the nation. In this connection, it becomes the duty of the judiciary to uphold the Constitution in its spirit and provide teach to its provisions.

Considering the mandate, contained in the preamble of the Constitution. Our judiciary must uphold the provisions of the Constitution to secure economic, social and political justice. For this purpose, it becomes the obligation of the judiciary to strike down backward and outdated customs, practices and laws, which violate provisions of the Constitution. For example, certain provisions of Muslim law, regarding marriage and divorce, clearly violate Articles 14 and 15. They need to be pronounced void. For example, soon after independence, Zamindari Abolition Acts were enacted in various states and they abolished the feudal land tenures, and these laws were upheld by the Supreme Court of India. This struck a powerful blow to feudalism. Access to Justice with special reference to Socio-economic rights by Justice M. Katju, Judge, Supreme Court of India. A.I.R. 2003 Journal 117

It is beyond doubt that we have a system of Rule of Law But we are very week, so far as implementation of Laws is concerned. Here it will be in the fitness of things to quote the example of the Election Commission of India. Until T.N. Sheshan made his entry, no one knew the existence of the Election Commission. From this time, all election rules are being observed very strictly. MS Sonia Gandhi and Mr. Narendra Modi were issued notices of violation of election rules. Similarly, it is the time that we have strict observation of our statutes. For example, Essential Commodities Act, Prevention of Food Adulteration Act, an enactment banning smoking in public places, an enactment prohibiting set determination, except for specited purposes, are hardly observed. Even provisions of certain procedural laws, like CPC, Cr. P.C. Evidence Act, are seen violated in Court houses. Here in such cases, our judiciary can best serve the purpose.

Our procedures in dispensing justice are not in tune with the changing times. Lots of improvements in legal systems have been suggested by law Commissions, e.g. there should be screening of the outdated laws, which should be scrapped. In U.S.A. there is a system of arguments in courts through teleconference. Our judiciary can follow this example and avoid expense and delay on adjournments when technology is so advanced.

Inspite of amendments in C.P.C. and Cr. P.C. frequent adjournments in a case are routinely granted without any fear. Provisions of law have to be adhered to in letter and in spirit. There are some situations in which the presence of a lawyer can be done away with. Very minor procedure like furnishing a list of documents or witnesses, may have to be adopted. In a case like this, Courts may prefer to like to be addressed by the litigants. This can save lot of time and expenses too. In this manner, Courts can be friendly with the litigants, saving inconvenience to itself.

The National Commission to Review the Working of the Constitution has suggested that goals should be set and action plan should be made to achieve these goals. This suggestion needs to be looked into and positive action taken in this regard. “An exercise in this direction would help the courts in anticipating their needs and inducing changes. It would also encourage the lawyers and litigants to look at the court system a little more pragmatically and positively which has how been taken over by a culture of adjournments. The general lethargy has resulted in a lack of punctuality and judges seldom sit for the entire period of working day.” Judicial Reform in Justice Delivery System A.I.R. 2004 Journal 198.

The biggest hurdle in justice delivery system is that of delay. This issue has to be tacked on a war footing. Justice Warren Burger, the former Chief Justice of the Supreme Court of U.S.A. has observed” the harsh truth is that we may be on our to a society overrun by horders of lawyers, hungry as locusts, and bridges of judges in numbers never before contemplated The notion that ordinary people want black robed judges, well-dressed lawyers, fine panealed Court rooms as the setting to resolve their disputes, is not correct. People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible” This observation with greater force, applies in the Indian context. Every case filed in a court with original jurisdiction must be disposed of within 12 months and an appeal within 6 months. If a video conference facility is established, delay can be overcome. It is a cost and time saving device, which must be looked into seriously.

In the end, let me touch a decade old controversy whether a judge should make a law. Now a days, it is an accepted theory that justice should not only be according to law, but it should be in tune with the changing times. In this controversy, one important aspect is missing. Under the Constitution of India, our judiciary is entitled to the power of judicial review. Under the banner of this authority, a law, which violates any provision of the Constitution, can be declared void. While declaring any law to be void, the judiciary is seized of the power to fill in the vacuum, i.e. to declare/substitute a new law. This happened in the famous Vishaka’s case. Lord Denning has very rightly said that when a legislation fails to provide a solution, a judge has to resolve the dispute independent of a legislation. In modern times, a judge cannot be a mere spectator, saying that there is no provision in the enactment.

-Ashwin N. Karia