This article is relating to various steps taken by judiciary when corona virus has spread all over the world and many deaths have taken place in India due to lack of facilities created by Government.

The world has witnessed serious blow in all walks of life due to Covid-19 pandemic. This article is mainly on the role played by the Hon’ble Supreme Court and various High Courts during lockdown imposed by Government of India to protect the rights of the citizens.

We have witnessed 1st, 2nd and 3rd waves of corona virus. When the 1st wave was prevalent the Government of India declared lockdown on 23.03.2020 and relaxed for a shorter duration. In that context the primary goal of the Judiciary was to ensure continuity of essential judicial services while safeguarding the health of those responsible for providing the services. Courts in India took up their commitment to continue to render justice by establishing facilities like online hearing. E- hearing and e-payment. The use of audio and video conferencing technology was allowed for the first time, as the physical hearing of the cases was impossible. Though, e-filing and audio and video conferencing technology is almost new to the Judiciary, but, still Indian courts have raised to the occasion and continued to offer essential judicial services to the public. Therefore, inspite of declaration of lockdown courts have continued to work and the Judges have taken pains to convert their respective houses as court halls, read the bundles and heard the arguments through video conferencing and passed appropriate orders.

When the Government of India declared lockdown on 23-03-2020 by invoking the powers under Disaster Management Act, the Hon’ble Supreme Court took suo-moto cognizance and directed the extension of limitation with effect from 15-03-2020. As, the Covid-19 situation was slightly improved in the country on 08-03-2021 the Hon’ble Supreme court decided to lift the extension with effect from 14-03-2021. In the wake of second wave and having noticed the alarming situation the order of extension was revived on 27-04-2021 and period of limitation was also extended to Arbitration and Conciliation Act, Commercial Courts Act and Negotiable Instruments Act and thereafter on 25-09-2021 recalled its order with effect from 02-10-2021. However, again extended till 28-02-2022. Therefore, from time to time Hon’ble Supreme Court realized that the rights and interests of the litigant public will be at stake due to lockdown and that the rights of the citizens should be protected. Therefore, Hon’ble Supreme Court invoking its extraordinary powers extended the period of limitation. Else, many cases all over India would have become time barred for presenting or for filing. This way the Hon’ble Supreme Court has come to the rescue of the citizens of India.

The Government of India declared nation wide lockdown invoking the powers available under Disaster Management Act, 2005. This piece of legislation was made to deal with the disasters like earthquakes or cyclones. However, as the Covid-19 pandemic is also a serious disaster the Government of India invoked its powers available under the Act and declared lockdown. But, some states have invoked the powers of Epidemic Diseases Act which also grants sweeping powers to the state Government. Using this power state Governments have declared containment zones and entire districts were sealed and movement from one place to another prohibited in order to put in place various surveillance measures. The most serious impact of the nation wide lockdown was “migrant crisis” with the forced closure of all shops business, transport etc. The large number of working class people who have migrated to metropolitan cities could not go back to their places. Then in a public interest litigation, the supreme court did not grant any positive relief to the petitioners on the basis of a statement made by the Solicitor General of India that there were no migrants on the road. However, due to widespread outrage all over India number of state High Courts have stepped-in because of the dire situation and continued to have its supervisory jurisdiction to check the steps taken by the respective Governments to protect the interests and fundamental rights of the citizens. The various issues like supply of oxygen providing transport to the migrants, health facilities, hospitalization etc., were the concerns before the respective High Courts. However, as the Hon’ble Supreme Court itself took up the all the issues in April-2021, the respective High Courts stopped dealing with these issues and Hon’ble Supreme Court passed appropriate orders.

So far as Telangana High Court is concerned having noticed that the State Government is very slow in RT-PCR tests to diagnose Covid-19 among the citizens of Telangana, High Court asked the Government to give its report within 48 hours to tell the court what are the steps taken to tackle further spread of virus in the State. Further, in a Public interest litigation High Court of Telangana directed the Government to explain its plan of action to check and control the second wave of corona virus. During the hearing court expressed dissatisfaction that the RT-PCR tests conducted by the Government were less than 10 % of the total diagnostic tests and this made the Government to realize its responsibility to take suitable steps to control the spreading corona virus. That apart, High Court of Telangana from time to time issued Standard Operating Procedure for conduct of cases in all courts in Telangana.

Unfortunately, the State and the Executive did not discharge their duties properly to control the spread of Covid-19 which resulted in many deaths due to lack of oxygen, vaccination and facilities like beds and ventilators in hospitals. When there are so many deaths and when the central government is not responding to suitably compensate the victims having invoked the provisions of Disaster Management Act a public interest litigation was filed. Under the Disaster Management Act central/state governments to fulfill their obligations to take care of victims of the calamity and their family members. And also a writ was filed seeking a direction to the Governments to issue any official document stating the cause of the death to the family members of the deceased who died due to Covid-19. The main relief was to grant compensation to the tune of Rs.4,00,000/- or notified ex-gratia to the bereaved families who died due to Covid-19. The writ petitions were so strongly opposed by the Central Government stating that the expression shall used in Sec. 12 will have to be read as may and that parliament has used the word “Shall” twice. In this way Government of India opposed the writ and tried to escape from its responsibilities. Therefore, the Governments, which came into power with so many promises to the citizens completely failed in coming to the rescue of citizens in providing basic necessities during widespread of Corona virus. On the other hand when the writ petitions are filed, the Executive have opposed the writs and sought for dismissal of the writ petitions and thereby created pressure on the courts. However, after an elaborate argument Hon’ble Supreme Court disposed off the writ petitions with certain directions directing the National disaster management authority to recommend guidelines for ex-gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19 as mandated under Sec. 12 of Disaster Management Act, 2005. Secondly, a direction was given stating that the appropriate authority is directed to issue death certificates stating exact cause of death. However, the Governments did not follow these directions and in the death certificates except recording the date of death, cause of death was not mentioned. This happened to me also when my mother passed away on 02.05.2021. When, I brought to the authorities about the direction of Supreme Court, they replied they have no instructions from the Government which made me to write this article how the courts are coming to the aid of citizens when repeatedly the State and Executive are not coming to the rescue to citizens.

Therefore, it is my considered view judiciary never failed and always kept its majesty and judges have discharged their responsibilities and duties for the oath taken by them. But, unfortunately the politicians who also come to power with the same oath, the moment they come into power they are forgetting the oath taken by them and majority of them are working for their self interest.

Q.1 WHAT IS JUDICIARY?

Judiciary, branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations. Conflicts brought before the judiciary are embodied in cases involving litigants, who may be individuals, groups, legal entities (e.g., corporations), or governments and their agencies.

The judiciary is the branch of government which administers justice according to law. The term is used to refer broadly to the courts, the judges, magistrates, adjudicators and other support personnel who run the system. The courts apply the law, and settle disputes and punish law- breakers according to the law. Our judicial system is a key aspect of our democratic way of life. It upholds peace, order and good government.

Citizens look to the judiciary to uphold their rights and governments look to the courts to interpret laws. The judiciary must act without fear of powerful interests, and without favouring individual parties. A court’s ability to deliver justice depends on its power to enforce its rulings. Only a court of appeal can overturn the ruling of a lower court.

The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real `meaning of law’ is what the judges decide during the course of giving their judgments in various cases. From the citizen’s point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the people, whenever they may approach it. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people.

The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant of compensations to the citizens.

2. Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean.

3. Role in Law-making:

The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these interpretations which really define the laws.

Moreover, `the judgments delivered by the higher courts, which are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the basis of the decisions made by the higher courts. Judicial decisions constitute a source of law.

4. Equity Legislation:

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation.

5. Protection of Rights:

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organisations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial review over any law for determining as to whether or not it is in accordance with the letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of the court is called the power of judicial review.

7. Power to get its Decisions and Judgments enforced:

The judiciary has the power not only to deliver judgments and decide disputes, but also to get these enforced. It can direct the executive to carry out its decisions. It can summon any person and directly know the truth from him.

In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or

(iii) Misleading the court, or

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the person for the contempt of court.

8. Special Role in a Federation:

In a federal system, the judiciary has to perform an additionally important role as the guardian of the constitution and the arbiter of disputes between the centre and states. It acts as an independent and impartial umpire between the central government and state governments as well as among the states. All legal centre-state disputes are settled by the judiciary.

9. Running of the Judicial Administration:

The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and independent organ with its own organisation and officials. It has the power to decide the nature of judicial organisation in the state. It frames and enforces its own rules.

These govern the recruitment and working of the magistrates and other persons working in the courts. It makes and enforces rules for the orderly and efficient conduct of judicial administration.

10. Advisory Functions:

Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal matter. For example, the President of India the power to refer to the Supreme Court any question of law or fact which is of public importance.

11. To Conduct Judicial Inquiries:

Judges are very often called upon to head Enquiry Commissions constituted to enquire into some serious incidents resulting from the alleged errors or omissions on the part of government or some public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for investigating important and complicated issues and problems.

12. Miscellaneous Functions:

Besides the above major functions, the judiciary also performs several other functions. Some such functions are the appointment of certain local officials of the court, choosing of clerical and other employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to settle the issues of successions of property and rights, issue of administrating the estates of deceased persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election petitions and the like.

Through all these functions, the Judiciary plays an important role in each state. It also plays a role in the evolution of Constitution through the exercise of its right to interpret and safeguard it against all legislative and executive excesses.

Importance of Independent Judiciary:

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives can become miserable. From citizens point of view Judiciary is the most important organ of the government.

Garner highlights this view when he observes, “A society without legislature is conceivable, and indeed, legislative organs did not make their appearance in the state until modern times, but a civilised state without a judicial organ and machinery is hardly conceivable.”

Judiciary enjoys a big importance in the eyes of the people because it acts as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of every democratic government worth its name. A government without judiciary is almost inconceivable. A government without independent judiciary is always held to be an authoritarian government.

Independence of Judiciary: An Essential Quality:

The chief quality which helps the judiciary to faithfully administer justice and to perform its functions efficiently is judicial independence. It is only when the judiciary works independently without any interference of the other two organs of the government that it can carry out its high responsibilities.

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic government and upon it is built the structure of civil liberty.” Judiciary can perform its functions only when it is free to administer justice according to law. Without being well-organised and independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the judges to give their judgments without any fear or favour.

Dr. B.R. Ambedkar describes Article 50 as conscience of Constitution. As per Article 50 enshrined as

Article 50 in the Constitution Of India 1949

50. Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State-

Organisation of Judiciary must be based on the following features:

(1) Appointment of only highly qualified and experienced judges.

(2) The Judiciary must have prevented the executive and legislature from committing excesses.

(3) The ability of the judiciary to maintain and independently run the judicial administration.

(4) The Judiciary must be made the guardian protector of the Constitution,

(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending their rights and getting justice.

(6) The method of appointment of judges must be fair, systematic, effective and transparent.

(7) Method of removal of judges should be difficult and no single should have the power to remove the judges.

(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate retirement benefits.

Furthermore as it is well said by the Hon’ble Supreme Court reported in AIR 1987 SC 1353 as It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

By incorporating all these features in the judicial system, a well organised and independent judiciary can be secured.

That’s why it is well noted the courts as

“The courts are last cathedral to the dying Man.”

Q 2. WHAT IS JUDICIOUS CONSCIENCE?

That ‘Judicious Conscience’ word has often been using by the Judges. When the matters is deeply related with the law and more particularly with the legal principles, which can affect the conscience of a person having knowledge or understanding of the principles of law, it become ‘Judicious Conscience’.

Law and conscience will of course often be perfectly consonant. Most of the time, this should be fairly unremarkable, and thus it will not be mentioned in the mine run of opinions. In those situations where no judge on the panel disagrees on any material matter in the case, so that only a majority opinion will be published, there is often little to be gained by adding considerations of conscience or morality to support what is already established law. It does happen, though, most commonly in instances in which the opinion underscores the judicial obligation of faithful adherence to precedent as a matter of institutional conscience. Other common circumstances for references to conscience as further support for an otherwise already legally tenable position include matters implicating issues of judicial resources and burdens on the courts other players in the justice system, issues of substantive or procedural fairness, and others still.

Such positions do not only appear in unanimous majority opinions, but also in dissents in those cases in which at least one judge believes that he is correct both on the law and on the morality, but is compelled to write in a dissenting opinion due to a difference of legal interpretation between the dissenter and others on the court. It is the expressions of the consonance of law and conscience that appear in the concurring and dissenting opinions, though, that turn out to be more worthy of note for the purposes of this discussion. Where the consonance appears in a majority opinion, it simply has that much less force or weight, in the light of the clarity of the established law. However, this article does not limit its discussion to cases in which conscience differs from law. Any resort or reference to conscience is ripe for discussion in the effort to develop a fuller and clearer understanding of what judicial conscience is and how it fits into the shape of the judicial role.

While there is perhaps an interesting academic question about the propriety of judicial reference to conscience in further support of an uncontroverted legal interpretation, the more difficult question is what ought to happen when a judge’s considerations of conscience are in conflict with established law, or at any rate with the interpretation of the law accepted by a majority of the relevant panel. Any judge who feels faced with a serious dissonance between law and conscience has an array of options at least apparently open to him. To state them roughly and in relatively short order, a judge could: (1) keep silent about the conflict and simply follow the law; (2) follow the law

When judges use words and phrases like “in good conscience” or “unconscionable,” they do so in many contexts and with a broad range of ideas apparently in mind. Though some scholarship in this area tends to be focused specifically on the role or expression of a judge’s religious faith, it can be hard to distinguish – and it is probably pointless to try to divine any distinction, for purposes of this paper – between religiously- based convictions and any other personal commitments that underlie actual judicial usage of the word `conscience.’ It is difficult to pin down a particular consensus definition of conscience or the unconscionable, either in the actual usage by judges or in the legal academic literature that has built up around this concept. Much might be included, but some usages are clearly of more import than others for this topic. Black’s Law Dictionary defines conscience as “1. The moral sense of right or wrong; esp., a moral sense applied to one’s own judgment and actions. 2. In law, the moral rule that requires justice and honest dealings between people.” This underscores the overlap and thus the lack of specific distinction, among the terms `conscience,’ `morality’ and `justice.

These terms must, to a certain extent, be left a bit muddy, because one must take them as the courts use them. Judges are not necessarily philosophers or linguists, and they are not typically concerned with precision about distinctions among these particular terms. Furthermore, to get too technical about the verbal or semantic distinctions here might even encourage an unwarranted and unhelpful formalism by judges.

Examination of the variety of uses of these terms by judges does however reveal some broad categories of apparent meaning. Sometimes it is a matter of a judge’s core personal conviction about right and wrong; sometimes it is a matter of responsibility for the integrity of the institution (for the proper role of the court, for its reputation, or for proper use of its resources, for example); sometimes it is an attempt to speak for something like a `common conscience’ or a common public notion of justice or other values; sometimes it is simply a matter of personal honesty about a particular view of the facts or the law in a given case. Very often, phrases like “in good conscience” or “unconscionable” or other variants on these, come up in cases having to do in one way or another with liberty interests, and of those very often the cases are before the court on appeals of denials of habeas petitions. These are decisions in which a panel’s collective decision may effectively be the end of the road on life and death issues. Another common context for these expressions of conscience is in dissents from denials of petitions for rehearing en banc – again, an end of the road determination, which may introduce frustration about the full court not taking up a matter a judge. Believes to be a moral imperative for further attention. Although judges certainly do use other related terms such as morality, injustice, and unfairness as well in these kinds of scenarios, this article limits the discussion to those specifically using `conscience’ and its cognates, in an attempt to get a clearer picture of what judges themselves see as the proper role for their conscientious commitments in their decision making and what that may reveal to help us better understand the larger shape of the judicial role.

THE SIGNIFICANCE OF SECTION 482

SEC 482 CR.P.C READS AS FOLLOWS:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

WHY THE NEED FOR SECTION 482 CR.P.C.?

The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The Hon’ble Supreme Court in State of Karnataka v. Muniswami- AIR 1977 SC 1489, held that the section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice“.

The Hon’ble Allahabad High Court went on to state that, “The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice“. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore, the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

WHAT ARE THE REAL POWERS OF THE HIGH COURT U/S 482 CR.P.C?

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the Sessions Courts or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.

Rules governing the petitions which pray for quashing of criminal proceedings

Section 482 of CrPC, which deals with the power of the court to quash criminal proceedings, hasn’t given the details of that what exactly constitutes the inherent power of the court. In that sense, the Code is very vague as it doesn’t lay out the grounds on which the foundations of the inherent power of court lay. Furthermore, there has been consistent inconsistency in the judgments of the Supreme Court of India with regard to the application of Section 482 of CrPC.

Consequently, the application of Section 482 of CrPC is a very agitated issue in litigation along with being a strongly debated concept in the legal academic circles. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guiding principles (landmark cases being the major ones) governing the cases of quashing of criminal proceedings. Some of these cases are:

1. Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293

In order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 of the CrPC, the following questions were raised before the High Court. The court held that if the answer to all the following questions was in affirmative, then the Court should quash the proceedings by exercising its power under Section 482 of CrPC;

1. Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

2. Whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

3. Whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

4. Whether proceeding with the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?

2. Parbatbhai Ahir v. State of Gujarat (4 October 2017)

In this case, the Supreme Court referred to various precedents and summarised the following principles to govern the power of High Court under Section 482 of CrPC;

1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.

3. Informing an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;

4.1. To secure the ends of justice.

4.2. To prevent abuse of the process of any court.

5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

6. In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed, even though the victim or the family of the victim, have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.

8. Criminal cases involving offences which arise from a commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice

10. There is yet an exception to the principle set out in propositions (viii) and above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

3. QUASHING OF CRIMINAL PROCEEDINGS IN MATRIMONIAL CASES (CASES FILED UNDER SECTION 498A)

The purpose of drafting Section 498A was to help the hapless women who were the worst victims and were harmed at the hands of their husbands. In the present times, there have been several instances where the section is misused. The situation became so severe that various non- government organizations (NGOs) came up for the purpose of advocating the repeal of Section 498.

The Supreme Court of India has, many a time, held that the proceedings being pursued under Section 498 – A of IPC ought to be quashed if the chances of conviction are very bleak or the case has been filed with ulterior motives. This is so because there are various cases where the purpose of the litigation is the ulterior motive of settling personal scores.

The following cases discuss quashing of proceedings in such matters;

1. The Supreme Court of India observed in the case of Sushil Kumar Sharma v. Union of India (19 July 2005),

“…The object of the provision is the prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have filed the cases with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery…”

1. In B.S. Joshi v. State of Haryana 2003 (4) SCC 675 the Supreme Court justified the exercise of powers under Section 482 CrPC to quash the proceedings in matrimonial cases to secure the ends of justice in view of the special facts and circumstances of the case even where the offences alleged are non-compoundable.

2. The judgment in B.S. Joshi v. State of Haryana was used by the Delhi High Court to quash criminal proceedings which had been initiated under Section 498 – A of the Indian Penal Code in the case of Girish Pandey v. State (20 October 2016).

3. Furthermore, it was held in the case of Geeta Mehrotra v. State of Uttar Pradesh (17 October 2012) by the Supreme Court that making general allegations against husband without any conclusive proof is ground enough to quash criminal proceedings instituted under Section 498- A of IPC.

The landmark Judgments in Quashing the Criminal cases delivered by the Hon’ble Supreme Court of India are:

(1) Janki Bai v. The state of Madhya Pradesh

(2) Rajave Textiles Private Ltd., v. Sourabh Biotech

(3) Raghavendra Sharma v. MPM KVV Construction Ltd., and also Hon’ble Telangana High Court is

(4) Sri Kota Reddy Veerappa Reddy v. State of Telangana.

4. TEST TO CHECK WHETHER HIGH COURT CAN INTERFERE OR NOT

Ordinarily, a High Court will not interfere at an interlocutory stage of criminal proceeding in a subordinate court but HC is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there are any exceptional or extraordinary reasons for doing so. The Supreme Court, in Madhu Limaye v. Maharashtra, has said, “Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in Section 482. Where the impugned interlocutory order clearly brings about a situation which is an abuse of the process of the court then for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary and nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court”.

The SC, further, in Madhu Limaye v. Maharashtra, has held that the following principles would govern the exercise of inherent jurisdiction of the HC:

1. Power is not to be resorted to, if there is specific provision in code for redress of grievances of aggrieved party.

2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice.

3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.

It can never be laid down more particularly or precisely when the High Court can and cannot use its powers, but attempts have been made on that behalf in several of the decisions of Supreme Court.

In the landmark case State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335), a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:

1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

LIMITATION ON SECTION 482 OF CR.P.C

Even though the inherent jurisdiction of the High Court under Section 482 is very wide, it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised exdebito justitiae to do real and substantial justice for the administration of which alone, courts exist. This view has been taken by the Hon’ble SC in many of its judgments including the recent Monica Kumar v. State of Uttar Pradesh.

In a proceeding under section 482, the High Court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below.

In State of Bihar and another v. K.J.D. Singh, the Hon’ble Supreme Court had a question whether the Criminal Proceedings can be quashed even before the Commencement of the Trial. The Supreme Court went ahead and held that “The inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. After a review of catena of authorities, Pendian, J. in Janta Dal v. H.S. Chowdhary (supra) has deprecated the practice of staying criminal trials and police investigations except in exceptional cases and the present case is certainly not one of these exceptional cases.“

In R.P. Kapoor v. State of Punjab, Hon’ble Supreme court went on to limit the powers of the Hon’ble High Court within the ambit of the Cr.P.C. It was held, “Inherent power of the High Court cannot be invoked in regard to matters which are directly covered by specific provisions in the Cr.P.C.”.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

CONCLUSION

Section 482 Cr.P.C has a very wide scope and is an essential part of statue to meet the end of justice where injustice can take place but at the same time the said Power is too wide and hence, it is important for the courts to use it wisely and according to the guidelines laid down by High Courts and Supreme Court time to time. Section 482, in its current form has seen several changes with the changing times and needs of the hour and by the Guidelines framed by the Supreme Court in several of its judgments. The Courts are constrained to do so as the said Section which gives wide powers to the High Court, was highly abused by the Law Practitioners. Section 482 of Cr.P.C has made its space in Cr.P.C in order to enable the High Courts to provide proper justice and at the same time to curb filing of fictitious complaints just to avenge personal grudges.

Q. 5 JUSTICE, PRACTICE, PROFESSION

In the most common terms, justice is an ideal representing something that is just and right. It basically means being just, impartial, fair and right. … On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty.

For example, the natural law school of jurisprudence believes that justice means the implementation of religious laws. On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty. However, in both these examples, justice just means enforcement of what the law perceives to be right.

In the modern context, justice basically means the recognition and implementation of laws made by legislatures. Furthermore, in the modern context, unlike ancient states, this function lies largely on judicial organs.

According to Salmond, laws are the bodies of principles that tribunals recognize and apply while administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals recognize and enforce.

Therefore, justice generally means the recognition, application and enforcement of laws by courts. This is different from the understanding of justice in the ancient period when it was given a religious and moralistic meaning.

KINDS OF JUSTICE

The concept of justice and its administration can be of the following types:

1) Public justice and Private justice

Public justice is basically that kind of justice which the state administers through its tribunals and courts. It explains the relationship between courts and citizens of a state. Courts usually enforce laws that the states make under public justice.

On the other hand, private justice regulates the legal relationship between individuals. It is limited to people enforcing concepts of justice amongst each other without approaching courts.

For example, let’s imagine that A and B entered into a business transaction in which A paid money to B as promised. B, instead of selling goods to A for the money, refused to fulfill his obligation. If A and B decide to settle their dispute through means of arbitration or negotiation, it is private justice. However, if A approaches a court and sues B, we refer to that as public justice.

2) Civil justice and Criminal justice

In terms of the subject matters of justice, we can categorize it as civil and criminal. Civil justice generally refers to private wrongs that affect specific people or entities.

For example, breach of a contract between two parties will affect only one of them. Trespassing of property is another example. The remedy of such civil wrongs is generally to approach civil courts.

Criminal justice, on the other hand, affects society in general even if specific people are victims. For example, the murder affects specific victims only but the law treats it as a crime against society.

Another feature of criminal justice is that it relates to laws made by a legislature. Only acts that are defined as crimes can be the subject matter of criminal justice.

In respect of Legal Profession is concerned it is well noted by the legal laurets that legal profession is a Nobel Profession.

The statement, “A lawyer is and must ever be the high priest at the shrine of justice”, a religious metaphor, reflects the view of the lawyer’s special role on the administration of justice as contemplated by the American Bar Association in the first national code of legal ethics in the USA. The religious metaphor was developed in the context of viewing Courts as the `shrines of justice’, and lawyers as the ministers of the “courts of justice robed in the priestly garments of truth, honor and integrity”. Even in a secular context, the statement still captures the essence of the role of an advocate in the mechanism of administration of justice in the society.

At the outset, it is necessary to appreciate the role an advocate plays in the society. The development of lawyers as a class of professionals can be attributed to the need for trained persons who can form the competent interface to facilitate the interaction between the lay persons and the judiciary. This involves providing legal advice in matters of rights, liberties or property of the client within the framework of legislative and legal rights, and representing the client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a `public good’ which is frequently technical and not self-executing, meaningful access to law requires the assistance of a lawyer. Particularly, in most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community, and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic character of the legal profession entails certain high traditions which its members are expected to upkeep and uphold.

Therefore, the lawyer plays an indispensible role in the mechanism of administration of justice.

However, the lawyer has a particularly onerous and multi-dimensional role to fulfill. As expressed by Mathew, J., “A Counsel has a tripartite relationship: one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty.”The satisfaction of the obligations and expectations arising out of these three relationships are frequently difficult to reconcile. The role of the advocate in these three capacities requires a closer scrutiny.

The lawyer, as a professional, to some extent, acts on behalf of the client, and representing the client. This is particularly relevant in an adversarial system of adjudication followed by common law countries which is characterized by a neutral adjudicating authority, which, on the basis of the arguments and evidence placed before it, arrives at a conclusion. The role of an advocate in an adversarial system, therefore, is to represent the case of the client before the adjudicating authority.

As a professional, the functional role of an advocate, in essence, is comparable to that of a legal technician. An advocate is specially trained in the technical profession of `law’, and with his grasp over the subject matter; professional function consists largely of providing counsel for clients about how to escape or mitigate the incidence of the law’s obligations, availing of the loopholes and the ambiguities of law. An advocate is essentially an adviser to his client. The contractual arrangement creates an obligation on the part of the advocate to offer sound legal service, and place before the court all that can fairly and reasonably be submitted on behalf of his client. The oft-quoted comment of Lord Reid in the celebrated case of Rondel v. Worley succinctly conveys the essence of the duty of an advocate towards his client: “Every counsel has the duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case”. More importantly, he should not let his personal opinion, or considerations of unpleasant consequences or reactions that he may expect to face in the performance of his duty towards his client affect the quality of services he provides to the client.

At the same time, it would be erroneous to view an advocate as merely a professional – that would lead to the risk of degenerating the legal profession into a trade or mere sordid pursuit for livelihood and accumulation of wealth, with professionals indulging in “briefs merchandise”.

It must be clarified that an advocate is obligated to act so as to protect and uphold the interest of his client by all fair and honorable means. As has been frequently emphasized, he also acts in the capacity of an officer of the Court. The role of advocates as officers of the Court is to assist the Court in the administration of justice. Lawyers collect materials relating to a case and thereby assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as the opposite side. The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the judicial process often depends on the services of the legal profession. The function of both the Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the need for a dynamic relationship of co-operation between the two is acute. Advocates, as members of the Bar and officers of the Court, have the responsibility of `keeping the stream of justice pure and unsullied’ so also to enable it to administer justice fairly and to the satisfaction of all concerned. This involves two aspects – firstly, to uphold the dignity of the judicial office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no circumstance, any illegal or improper means is used to mislead the Court.

CONCLUSION

The public impact of the legal profession can be gauged by the observation by the Supreme Court in All India Judges Association v. Union of India, wherein it was expressed that the administration of justice and the part to be played by the advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The aspect of the advocate as a public servant is closely tied to the fact key role he plays in the developmental and dispute-processing activities and, above all, “in the building up of a just society and constitutional order.”[13] Being the custodian of the monopolistic power statutorily granted by the nation, the lawyer is obligated to rise to the expectations of him in being a member of the society worthy of confidence of the community in him as a vehicle of social justice.

Viewed in this context, it can be said that the lawyer is indeed the channel through which the general public can access the law, and avail of the protection of the law, in the shrine of justice.

The judges and the jurists of the country, and as also the print media, often make mountain of a mole hill in the matter of exercise of Public Interest Litigation jurisdiction by the judges of the higher courts. The same is much ado about nothing when there is no dispute that the power of judicial review over the functioning of the Executive and the Legislature for enforcing the fundamental and other rights of the citizenry under our constitution vests in the judiciary. So while discharging the said responsibility, the judiciary is bound to cause some aberrations here and there. It is neither possible and nor expedient to lay down the so called Lakshman Rekha.

Need of the time now is for appropriate diagnosis of the ills of the subordinate judiciary as the masses come only in the contact of subordinate judiciary where the litigant population is generally feeling oppressed, depressed, suppressed and compressed. The entire system is lying paralysed metabolically and mentally. About 3.5 crores of cases are now said to be pending in the subordinate courts. Under the burden of such a huge backlog of cases the entire system of subordinate judiciary is virtually choked. Hitherto there have been only casual correctives by the peers at the helm of affairs without any proper investigation into the causes of malfunctioning of subordinate courts.

As a right minded citizen and as an extinguished ex-participant in the system, I cannot help but remark that while such like occasional correctives by the peers may be well intentioned but the same are certainly not adequate and not likely to fulfill the desired objectives till the diagnosis of the ills of judicial system is properly done. Drowned under the weight of heavy docket of work and other reasons which are in legion, the Judges of the Apex and the High Courts perhaps do no have the time to realise the gravity of inefficiency syndrome in the lower judiciary which is eating into its vitals even more than the element of corruption. The Judges occasionally chant the mantra that the only problem in the rungs of the subordinate judiciary is of the pendency of a large number of cases for which increase in the number of subordinate courts is almost invariably suggested as a panacea.

The above said approach is only casual and cannot cure the ills. In Punjab and Haryana subordinate courts, of which I have a personal experience of 47 years, both as an ex-judicial officer and now as an advocate, there is no dearth of first appellate courts and the courts of civil judges-cum-magistrates and the infrastructure for the last about one decade but the working is still fast deteriorating because of changed work culture.

Earlier, only a decade back, practically all the presiding officers of the first appellate courts used to give dictation of evidence in all cases themselves but now the said practice has been almost given a complete go bye and the resultant effect is that there is no control over the proceedings which go unregulated. Most of the Sessions Judges do not record statements of the accused under section 313 of the Code of Criminal Procedure properly as the Public Prosecutors frame the questions and answers thereto are dictated by the defence counsel flouting the very purpose of recording such statements. In most of the courts judgments/orders are not pronounced on the stipulated dates and later on the orders are manipulated by showing as if the said orders were pronounced within the stipulated period of 7 days of hearing arguments and within 15 days of conclusion of evidence. Hardly three or four bail applications in a day are assigned to each court and even the said bail applications are some time not disposed of on the same day. There is no capacity of giving dictation of even a few simple and short sentences in the open court. This may be because of twin reasons i.e. either there is no capacity to dictate the orders in the open court or the presiding officers shun the dictation in the open court apprehending interference from the counsel appearing before them.

In the Matrimonial courts and as also before the Accident Claim Tribunals, evidence is being recorded not by the officers or even by the steno typists. The said evidence is being recorded by advocates as local commissioners and the manner of recording of evidence is most shabby. One cannot find even three sentences consecutively in the deposition of the witnesses recorded in this manner in which there are not 2-3 mistakes which is disgusting and gives such a shabby and poor impression about the working that the same is nauseating.

At the level of the magistracy a sort of fish market is created in most of the courts where evidence is being recorded at 2-3 places in criminal cases simultaneously by the court staff without any effective, nay even the remote, supervision of the presiding officers.

On civil side the legislature amended the Code of Civil Procedure, 1908 recently by prescribing that examination-in-chief of the witnesses will be by way of affidavits so that precious time of the courts was saved. The said amendment is nullified virtually by the entire subordinate judiciary by obtaining affidavits of witnesses on one date and then adjourning the case to some other date for cross-examination of the witnesses which is causing an acute hardship and inconvenience to the witnesses who are compelled to come to courts even more than twice for the same purpose. Primarily lawyers are responsible for this malady as they take the stand that they had not gone through the affidavits of the witnesses as the same were supplied to them on that very date. Further in the amended Code of Civil Procedure, at the most three adjournments are permitted to a party to lead its evidence in support of its cause but after conclusion of evidence, in most of the cases, numerous adjournments are being granted for leading rebuttal evidence and for addressing arguments as neither the advocates are ready for addressing arguments soon after the conclusion of evidence and nor the presiding officers are willing to hear arguments.

Judges of the Apex and the High Courts have shown serious concern on occasions regarding the malady of the winning over of the witnesses by the accused specially in heinous offences. This echo is but natural. But the dignitaries do not realise the diamond hard stark reality that instances are not lacking where the subordinate judiciary itself is a contributory to this malady. In some courts even sessions trials are being adjourned just on the asking of unscrupulous advocates till the inconvenient witnesses come round. I have a personal experience of appearing in a sessions trial in one of the courts in Haryana where a complainant in a sessions case did not appear consecutively for more than 15 hearings even though every time he was outside the court premises. He was insisting for payment of money to him. I personally apprised the judge concerned about the situation but he pleaded helplessness by stating that he could not do anything when the witness was not before him. Subsequently, when the said trial came to be transferred on the file of the Hon’ble Sessions Judge in routine then the matter was brought to his notice and this time the Sessions Judge took umbrage and called that witness from outside the court premises by sending his Naib Court and then only statement of the said witness could be recorded. In yet another murder case in Haryana, the defence counsel got adjourned the sessions trial on three dates so that he could manage compromise between the parties. When I, as a counsel for the complainant, protested on the fourth adjournment and requested for a short adjournment then in the open court the said advocate had even the audacity of stating within the hearing of the judge that before the next short date I myself could be killed. The Hon’ble Judge had not guts to initiate proceedings for contempt of court against the said advocate. Next day when I submitted application for initiating contempt of court proceedings in the said matter then the same was returned by telling me that I myself could move the said complaint for initiating contempt of court proceedings before the High Court.

Concern regarding the low rate of conviction in cases is also not entirely correct. The public perception in this direction is blurred by media hype. People, and even the Hon’ble Judges, are failing to discern that the penal provisions of dowry deaths and dowry related cases are generally being misused by the complainants. Even in most of the cases complaining rape, where victims are more than 18 years of age, the allegations of rape are on the face of them false. Police is also registering a large number of false cases under sections 399 and 402 IPC. In the dowry related and false rape cases the accused are being blackmailed and when they pay money to the complainants then the matters are settled and the cases go in acquittal with the resiling of witnesses.

Again the common and general perception today is that an accused is a devil and the complainants are poor victims. Even this projection needs correction. Instances are not uncommon when even innocent persons have to languish in jails for considerable periods without there being even semblance of evidence because of unwarranted dismissal of their bail applications and unwarranted convictions. Personal uncodified formulas have been evolved even at the High Court levels that sentences of those who have been awarded imprisonment by the trial courts for a period exceeding three years, will be suspended only after the convict first undergoes one fourth of the sentence imposed even though there may not be the slightest evidence against them. Then in some cases even this formula is not adhered to.

The height of inefficiency and bankruptcy of mind will be evident to the readers if I am permitted to quote 3-4 instances in which I myself had been the counsel. In one case the High Court had directed the Additional Sessions Judge to grant exemption to the accused on an application being moved before him on such terms and conditions as deemed appropriate. When application was moved the learned Additional Sessions Judge complied with the High Court order by giving direction “that the said accused was to attend the court in person at the stage of framing of charge, during recording of evidence of the prosecution, recording of the statements under section 313 Cr.P.C., at the time of hearing arguments, and, of course, at the time of judgment”. The readers will wonder as to what dates were left out on which the accused was not to appear! In one more case the petitioner-husband failed to pay interim maintenance ordered against him in matrimonial proceedings under section 13 of Hindu Marriage Act, 1955 on the date when the case was fixed for recording his evidence. Instead of debarring the husband from proceeding with the case the Additional District Judge sent him behind bars without there being any execution petition from the side of the wife. It was observed that these powers were being exercised under Section 125 (3) of Code of Criminal Procedure, 1973. In yet another case, there were allegations against some police officials that they had fired shots upon an innocent citizen when he refused to cough up money on their demand which resulted into his instant death. The police came out with the counter version that they had simply given signal for stopping but there was firing upon the police party and the police party had to retaliate in defence. It was thus not the case of any of the two parties that the citizen died because of rash and negligent firing by the police. However, the learned Additional Sessions Judge framed charge under Section 304-A IPC which covers death by rash and negligent acts. The said Additional Sessions Judge even refused to rectify the charge when appropriate application was moved under Section 216 of the Code of Criminal Procedure. I refrain from quoting more instances showing total non-application of mind in the cases by the subordinate judiciary.

For the inefficiency syndrome there is liability of the Bar also as without effective assistance of the counsel representing the case there cannot be proper and effective verdict. One is lucky today if he gets a correct verdict in his cause. Justice is the psychological yearning of every human being and yet one has to depend upon his stars for a correct verdict. And let me hasten to clarify that corruption and workload are not the only causes behind this malady.

Oliver Wendell Holmes Jr. once remarked, “This is a court of law, Youngman, not a court of justice”. The underlying sarcasm in this barb should generate and fuel the impulse of law courts and the advocates to turn the law courts into courts of justice.

In the words of Addison, “To be perfectly just is an attribute of the divine nature; to be so to the utmost of our abilities is the glory of man”. It is this spirit which must motivate the Bar and the Judiciary to strive to realize its full potential and convert it into kinetic energy.

Legal fraternity has a great responsibility to ensure the process to achieve the true object of justice to all. The Judges have a duty to perform which is more onerous to keep the judicial ship afloat on even keel.

Sensitivity to all that we perceive, proper storage of all materials, intelligent docketing and developing the right impulses by training of the mind are sure to help in the development of perception needed to dispense justice according to law. The process is ongoing in everyone, but a conscious effort to develop the proper perception is the need. The ideal is difficult to achieve but the duties of the public oblige us to do our best.

During the recent long drawn out lock down, there were two visuals that I missed the most; one seeing Virat Kohli or Rohit Sharma, donning India colours, hold a bat and smack the ball from the rival team’s bowler, to boundary with the crowds erupting into rhapsodies and the second; of us lawyers appearing in our sable uniforms in courts, with judges presiding over from their high daises. As of now we do not even know when will we see such scenes live again. There were other simple pleasures of life, which too we were eagerly awaiting to resume, such as morning walks and going to markets etc, most of which have been resumed but alas! not the physical appearances in designated court rooms. It however, is time, we emulated some of the COVID-19 warrior such as doctors, paramedic staff, the police and other paramilitary forces, Army and now even the entire Govt officialdom. Some of these, particularly the doctors and the police, not only never rolled back their duties but had also been performing duties since March 2020 in much more challenging and perilous conditions, yet we have not seen any report from any quarters, whereby any of them may have refused to perform duties.

Of course, the physical working of courts entail its own peculiar risks but we can now seek a lot of encouragement from the data that has emerged in the meanwhile. It shows that the Case Fatality Rate (CFR) in India stood at 2.8%, which is amongst the lowest in the world compared to global fatality rate of 6.13%, as per the information released by GoI. The recovery rate also stands at health 48.4 %, which too is amongst the finest in the world. The low CFR and the high recovery rate, it is said, shows that,” India may not be witnessing an impact as severe as in some other countries..”. Likewise, the number of people who have required ventilator support, in our country, is also less than 2%. The said data thus makes out a strong case for resuming normal functioning of all courts at least in this part of the country. Conversely if we continue to shut the court rooms for a long period of time and continue with video conferencing method for `extremely urgent’ cases only, the arrears of pending cases, already a mountain, will climb to unmanageable proportions. Moreover, whenever we open the courts, let’s say after one year from now, even then the probability of catching the virus by some of us, will not be zero, it will never be. The judicial process, however, must march on, resolutely for there are thousands patiently waiting for years together, to find justice at last.

The courts are called “Temple of Justice”, to my mind it is that temple which even an atheist is happy to visit, therefore your Lordships please! Open up the gates and let us once again see this temple of justice function in its full glory.

The Indian Perspective

In U.S.A. every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury. The right has been granted by the Sixth Amendment, the Seventh Amendment and the article three of the U.S. Constitution, which states, “The trial of all crimes… shall be by jury…” The U.S. Supreme Court in Baldwin Vs New York, 399 U.S. 66 (1970), ( case decided on June 22, 1970), has ruled that if imprisonment is for six months or less, trial by jury is not required, meaning there by that a state may choose whether or not to permit trial by jury in such cases.

The right to trial by jury in a civil case is addressed by the Seventh Amendment, which provides, “In suits in common law, where value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law”. Though the early version of the 7th Amendment was introduced in U.S. Congress in 1789, the Secretary of State Thomas Jefferson announced the adoption of the Amendment on March 1, 1792. The Amendment however does not guarantee trial by jury in cases under the maritime law, in law suits against the Government itself and for many parts of patent claims. In all other cases the jury can be waived by the consent of the parties. The Amendment additionally guarantees a minimum of six member jury and maximum of twelve, in a civil suit. The amendment’s 20 dollar threshold has not been the subject of much debate and still remains applicable despite the inflation that has taken place since 1792.

The jury system was primarily put in place to ensure honesty and transparency in the justice delivery system. The U.S. Supreme Court noted the importance of the jury rights in its 1968 ruling of Duncan Vs Louisiana, 391 U.S. 145 (1968), “Those who wrote our Constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the Constitution strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right trial by a jury of his peers gave him an inestimable safeguard against the corrupt or the overzealous prosecutor and against the compliant, biased or eccentric judge”

Jurors in some states (in U.S.A.) are selected through voter registration and driver’s license lists. A form is sent to prospective juror to pre-qualify them by asking the recipient to answer questions about citizenship, disabilities, ability to understand the English language and whether they have any conditions that would excuse them from being a juror.

I happened to witness a civil jury trial, for three days in Los Angeles (L.A. California) “Superior Court”. The trial was about wrongful/malefic dismissal of the Plaintiff from the employment of the Defendant Company. It is striking for a person steeped in traditional Indian mind set to notice that the jury members not only, very often come from humble social back grounds but also that they are completely untrained in law. When the jury members were being examined by the judge to see if they fulfilled the parameters of jury duty, it emerged that one of the jury members was earlier an employee of the defendant Company, who was dismissed by the defendant Company allegedly for not doing his duty as was expected of him. On concerns being expressed by the defendant Company’s lawyer that this prospective jury member could be harbouring rancour against the defendant Company, the presiding judge chose to probe this possible jury member a little more than is usual. The judge asked him what kind of job he used to do when he was with the defendant Company. The potential Juror replied, to my utter amazement, that he used to wipe floors in the defendant Company. On being asked why was he let go, the potential Juror replied that it was alleged by his supervisor that he did not clean the floors well enough. He added that he had since moved on in life and he harboured no ill will towards the Company now. Surprisingly, his mere statement to this effect was good enough for the judge to rule that the man did not suffer from any bias and was good for jury duty. The all pervading trust in the system was too apparent to be missed by anyone. Despite this the jury was still falling short by one member, a lady, who was being awaited. The judge announced he had received a phone call from the lady who said her father was in hospital and therefore she was going to be late for the jury duty. The judge said that he has no option but to adjourn the court till after the lunch break in order to await her. I was curious to know whether the lady would join the jury duty after lunch and the trial would begin, so I waited out the lunch hour and was in court just as the court resumed after lunch. However, to the disappointment of everyone the judge said, he had called up the lady during the lunch break and she informed that her father was still in hospital and therefore she will not be unable to come for her jury duty. The court therefore had to be adjourned that day to work on her replacement.

As can be gathered from the narration above the members of a jury are ordinary folks, with no special qualifications at all and the only educational requirement is to be able to understand the English language. They come as young as men and women in their twenties, often dressed up in casuals, even inappropriately, to my traditional mindset, for court duty. Moreover the court staff, lawyers and members of the audience do not necessarily stand up to the every entry or exit of the judge but they would surely rise up the moment jury members start to pick up their respective bags and purses etc. in preparation to walk out of the court room. The all pervading humility and the trust and the informality of the entire system is instantly endearing and yet totally surprising to an Indian mind.

In a jury system judge only conducts the trial and announces the punishment/ penalty but it is the jury that actually announces the verdict that is; Guilty-not guilty or motion denied-motion allowed etc. It is this confusion in the roles of the judge and the jury that undid the jury system in India in 1956, after the famous Nanavati’s case, of a naval officer, who was though found guilty of murder of a lover of his wife yet the jury also did not think it appropriate to give him the capital punishment for the crime committed.

Could the jury system succeed in India? In my humble opinion the jury system does bring in protection from whims, arbitrariness and at times, the over bearing attitudes of the presiding officers but do we have so much faith in the system and the unquestionable trust in the ability of common men and women, so as to elevate them to the position of a justice deliverers, is a question that we need to ask first.

It is the obligation and duty of the higher courts to modify or set aside orders which are contrary to law or the facts of the case. This is one of the most important functions of the superior courts. Our legal system acknowledges the fallibility of the judges and provides for appeals and revisions. Judges of the superior courts while discharging their duty ought to be extremely careful before passing imputations, strictures and remarks against subordinate judicial officers.

“The exercise of statutory jurisdiction, appellate or revisional and the exercise of constitutional power to control and supervise the functioning of the district courts and courts subordinate thereto empowers the High Court to formulate an opinion and place it on record not only on the judicial working but also on the conduct of the judicial officers. The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations, touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. The same Judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a Subordinate Judge may, sitting on administrative side and apprised of overall meritorious performance of the Subordinate Judge, may irretrievably regret his having made those observations on judicial side, the harming effect whereof even he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court – a situation not very happy from the point of view of the functioning of the judicial system. May be for the purpose of pleading his cause he has to take the assistance of a legal practitioner and such legal practitioner may be one practicing before him. Look at the embarrassment involved. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralising effect not only on him but also on his colleagues. If all this is avoidable why should it not be avoided ?”

Principles stated by Hon’ble Apex court

(I) Erosion of credibility of judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary.

(II) Judicial discipline and restraint are imperative for the orderly administration of justice.

(III) Judicial decorum makes it imperative that the court’s judgments and orders must be confined to the facts and the legal position involved in the cases and the courts should not deviate from propriety, moderation and sobriety.

(IV) Majesty of Court is not displayed solely in cracking the whip on mistakes, inadvertent errors or lapses, but by persuasive reasoning so that the similar errors and mistakes are not repeated by the judicial officers.

(V) Majesty of Court would be enhanced by practicing discipline and self- restraint in discharging of all judicial functions. All actions of a judge must be judicious in character.

(VI) The role of superior courts is like a friend, philosopher and guide of the judiciary subordinate to it. The judicial officers have to be treated with parental care and affection.

(VII) The approach of the superior courts ought to be correctional and not to be intended to harm or ruining the judicial career of the officers.

(VIII) The superior courts should always bear in mind that the judicial officer is not before it and should ordinarily refrain from passing strictures, derogatory remarks and scathing criticism. The passing of such order without affording a hearing to the judicial officer is clearly violative of the principles of natural justice.

(IX) The superior courts should always keep in mind that disparaging and derogatory remarks against the judicial officer would cause incalculable harm of a permanent character having the potentiality of spoiling the judicial career of the concerned officer. Even if those remarks are expunged, it would not completely restitute and restore the harmed judge from the loss of dignity and honour suffered by him.

(X) The superior courts should convey its messages to the concerned judicial officers through a process of reasoning highlighting the correct provisions of law, precedents and proper analysis of evidence and material on record, but rarely by passing harsh and derogatory remarks.

(XI) The superior courts must always keep in mind that it is a herculean task for the judicial officer to get the derogatory remarks expunged by the superior court. He is compelled to take assistance from lawyers and such a practitioner may be appearing before him. It is embarrassing, humiliating, time consuming and an expensive exercise.

(XII) The superior courts must always keep in mind that the much cherished judicial independence must not be presented only from outside but from within, by those who form the integral part of the judicial system. Damage from within has much larger and greater potential for harm than danger from outside. We alone in judicial family can take care of it.

(XIII) The superior courts should not use strong, derogatory, disparaging and carping language while criticising the judicial officers. They must always keep in mind. that, like all other human beings, the judicial officers are also not infallible. Any remarks passed against them may result in incalculable harm resulting in grave injustice.

(XIV) The superior courts judges should not be, like a loose cannon, ready to inflict indiscriminate damages whenever they function in judicial capacity.

(XV) The superior courts should keep in mind that infliction of uncalled for, unmerited and undeserved remarks clearly amount to abuse of the process of co.

(XVI) The superior courts should not allow themselves even momentarily the latitude of ignoring judicial precaution and propriety.

(XVII) It must be remembered that the subordinate judicial officers at times work under charged atmosphere and are constantly under psychological pressure with all the contestants and their lawyers almost breathing down their necks and more correctly upto their nostrils.

(XVIII) Err is human and no one is infallible. A judge who has not committed an error is yet to be born. Judicial decorum has to be maintained at all times and even where criticism is justified. It must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible.

(XIX) Judges of the superior courts have a duty and obligation to ensure judicial discipline and respect for judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticized intemperately and castigated publicly. Our legal system acknowledges the fallibility of the judges and provides for appeals and revisions.

(XX) It is the duty and obligation of the judges of the superior courts to ensure that independence of judiciary is not compromised and every judicial officer should feel that he can freely and fearlessly give expression to his own opinion. This is absolutely imperative in maintaining the independence of judiciary.

(XXI) The superior courts’ judges must always bear in mind that no greater damage can be caused to the administration of justice and to the confidence of people when judges & superior courts express lack of faith either in ability or integrity of subordinate judges.

Reference:- V.K. Jain v. High Court of Delhi, 2009(4)R.C.R.(Criminal) 388 (SC).