18 Jan 2024 6:33 AM GMT
Supreme Court judge Justice Abhay S. Oka, while delivering the Second Shyamala Pappu Memorial Lecture, opined that the faith of the common man in the judiciary has eroded considerably. The main reason, he said, is that the bar and bench are not able to provide proper access to quality justice and justice at a reasonable cost.
“Maybe during last 75 years, in functions like this, where bar and bench were together, we kept on patting our own backs by saying the Judiciary is the last resort for common man…common man has faith in the judiciary. My personal view is that whatever faith was there, in maybe 1950, has eroded considerably due to various reasons. The main reason, of course, is that we are not able to provide proper access to justice. Quality justice and justice at a reasonable cost. Therefore, in my view, we have to find out where we have gone wrong.”
He further also said that judges should not stay in an ivory tower. Speaking on access to justice, he said that the judiciary has not fulfilled the expectations of common citizens of India and is lagging far behind.
“As a judge of the Bombay High Court and Chief Justice of Karnataka High Court, even today, I firmly believe that judges should not stay in ivory towers. As a judges of Bombay High Court, I had number of opportunities to go to taluka places, to visit district places, interact with the lawyers, interact with litigants coming to the Courts…I have been interacting with all stakeholders, and my personal view, which I can gather from my interaction with all the stakeholders, is that the judiciary has not fulfilled the expectations of the common citizens of India. In fact, we are lagging far behind.”
The instant lecture was delivered on “Access to justice in the context of 75 years of the Indian Constitution.” Justice KV Viswanathan and Supreme Court Bar Association President Adish Aggarwala were among other dignitaries.
At the outset, Justice Oka clarified that he was expressing his personal view. “Please do not confuse between the views of the Supreme Court and my personal views.,” he said. Notably, at the end of the lecture, Justice Oka also stated that the idea of saying all this is to start the thinking process.
Talking about access to justice, he said that the same is not achieved by simply filing a case in a Court of law or lodging a complaint with the police. Speaking on this line, he also said that we must look back and virtually conduct an audit of how the Courts have performed. This is to determine whether the Courts have achieved what the common man wanted it to do.
“When we say access to justice, it has to be a quality and expeditious justice rendered at a reasonable cost. Merely allowing somebody to file a case does not mean that we have granted him access to justice. So, 75 years of existence of constitution, I always believe that we must look back and virtually conduct audit of how the Courts have performed to find out whether Courts have really achieved what common man wanted the Courts to do.,” Justice Oka stated.
He spoke about several reasons for not fulfilling the expectations of the common man. One of the main reasons, according to him, was we neglected trial and district courts which are the primary courts in our system.
“The first reason is that we neglected our trial and district courts…we have not given the importance which our trial and district courts deserve. There is one indication which will prove how we neglected these courts. For years together, we used to describe these courts as lower Courts, subordinate courts, etc…Now, there cannot be any lower Court as such. Every Court is a court.”
He opined that for a common man who cannot afford to have multiple litigations, perhaps these are final courts.
He also shared his insights on how civil and district court judges were the last class to receive pay commission benefits.
“There were fifth sixth and seventh pay commission. Of course, the pay commission does not cover the judiciary. So, last fifth sixth and seventh pay commissions…after pay commission was implemented for government servants, the government thought it fit to amend the law and enhance the salary and renumeration payable to the judges of the constitutional courts. But in case of all three pay commissions, there was only one class of public servants which was the last to receive benefit of enhancement of paying and that was class of our civil and district court judges.”
In this context, Justice Oka also referred to the recent Supreme Court order providing various amenities and perquisites to the judicial officers. Seemingly, Justice Oka was referring to the Apex court's decision in All India Judges Association v. UoI And Ors. Therein, the Court has directed the State Governments to pay the arrears to judges in terms of the payscales enhanced as per the recommendations of the Second National Judicial Pay Commission (SNJPC) by February 29, 2024.
Moving ahead with the lecture, Justice Oka said that, to some extent, even the legislature has contributed to the 'clogging of our trial and district courts or session courts.' Explaining this further, he spoke about how Section 138 of the Negotiable Instruments Act, a pure civil wrong, is converted into an offence.
“Look at the scenario, go to any metropolitan city across India….you will find that every magistrate has more than hundred matters everyday on the causelist and maybe 25-30 % are (Section) 138 matters. That is how the legislature has clogged the system.”
Speaking about another reason, apart from infrastructure and manpower, he underscored how courts are flooded with matrimonial litigations. He highlighted how one matrimonial litigation creates five litigations (Section 498A of the IPC, Section 125 of the CrPC, Section 12 of the Domestic Violence Act Act, and Custody proceedings) at grassroots levels.
“You can see from Supreme Court…how many transfer petitions we get. All transfer petitions, barring few exceptions, are in matrimonial matters…”
Taking an example of the Commercial Courts Act, where before filing, conciliation is mandatory, he said that legislature could have come out with some such measure to reduce the filing of cases arising out of matrimonial disputes.
By the end of the lecture, Justice Oka also spoke about how we are not able to have consistent policies about our priorities.
“We do not have cases which decide which cases should be given priority…. I remember, few years back, Supreme Court said give priority to cases of all senior citizens….If you want to improve access to justice, someday you will have to come out with a rationale policy of giving priorities.”
“Somebody who can afford to engage a good counsel in a higher court gets priority, and all other people, those who cannot afford, are patiently in the queue. This happens because we do not have that sense of priorities.,” Justice Oka stated
Taking about another concern, he said that priority is given to criminal appeals of convicts languishing in jails. However, where the accused are on bail, there is no urgency in appeal.
“Practically, in all leading High Courts, you will find that there is a pendency of 20 years' appeals against convictions where the accused are on bail. Look at the disastrous consequences, if you do not hear such matters by giving priority, after a gap of 20 years when High Court confirms the sentence…after a gap of 20 years, the person has to go to jail and undergo punishment. Now, 20 years is a huge span. People move ahead in life…”
Taking a cue from this, he said that here also, we will have to think about priorities and perhaps balance both the categories of appeals.
In the end, he said that the legislature found one solution for improving access to justice by legislating the Legal Services Authorities Act of 1987.
Talking about the categories entitled to free legal aid, he said that Section 12(8) of the Act needs to be amended. Section 12 of the Legal Services Authorities Act entitles a set of people to avail of legal services. This includes people in receipt of annual income less than rupees nine thousand. However, the annual income is less than rupees twelve thousand if the case is before the Supreme Court.
“This requires amendment. Today, the rate of minimum wages has gone up…,” Justice Oka stated.
While concluding his lecture, Justice Oka said that even today, maybe (because of) social reasons, economic reasons, or any reason, a large of citizens do not even think of approaching the Court of Justice for justice. They keep on suffering the injustice silently.