INDIAN JUDICIARY AND NEW CHALLENGES
TABLE OF CONTENTS
S.NO. TOPIC P.NO.
1. Abstract………………………………………………… 4
2. Synopsis…………………………………………………. 5-6
3. Literature review……………………………………….. 6
4. Introduction……………………………………………… 7
5. Legal institutions and justice.………………………….. 7
6. Drawbacks of the officers of justice…………………… 7
7. Judicial independency challenged.……………………. 8-10
i. Rahul Gandhi’s defamation case
ii. Sexual harassment case on Brig Bhushan Sharan Singh
iii. Contrast of court’s role in both these cases.
8. Conflict between morality and justice………………… 10-13
i. Women’s activist Rehana’s case
9. Conclusion……………………………………………….. 14
10. Bibliography……………………………………………… 15
ABSTRACT
LAW is the body of principles recognized and applied by the state in the administration of justice. Law also means justice, morality, reason order, righteousness, etc from the point view of society. It means official control in a politically organized society. Present day there is lot of respect and belief in people towards judiciary when compared to executive and legislature. On the other side the courts are being burdened mostly into interpreting the laws as a part of judicial review, because mostly in current times there are lot of inconsistent laws made by the legislature. Apart from this there are many cases which last forever in courts due to many reasons which is considered as a major inevitable drawback. This takes the idea to political influence in cases where sue motto cognizance is very required. It is believed that law is to reduce disharmony in society which is nil when comes to the recent justice for wrest lingers. There was no investigation into allegations of sexual harassment of female wrestlers. When it comes to Rahul Gandhi’s defamation case, role of courts was examined on why there was no proper reason given by the bench for serving him with maximum sentence of two years imprisonment. How can we see the independence of the judicial sector leading country into. One more aspect where justice can be portrayed as fragile in the eyes of society, is when the morality and virtue comes into the picture as in the case that was filed against a woman’s rights activist Rehana for posting an obscene content with title body art and politics. This study paper analyses the aforementioned aspects in a socio-legal perspective and get a deeper understanding of the laws that are in conflict.
SYNOPSIS
INTRODUCTION
The constitution of India operates in happy harmony with the instrumentalities of the executive and the legislature. But to be truly great, the judiciary exercising democratic power must enjoy independence of high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these the robes may prove arrogant. As law is an effective instrument of social control for realizing, securing, and satisfying the varying interests which are pressing for recognition, reconciliation and satisfaction at a particular period, place, law is required by every society. Sociology is a science of society provides the reasons for evolutionary legal trends from time to time. As said by an English jurist ‘Barney frank’ Lawyers are very, very good at keeping you out of prison, but they will sacrifice your reputation and credibility to do so, there are inevitably two sides for the same coin. This research critically looks into the same in Ms. Priyadarshini Mattoo case.
One more aspect the researcher wants to look into here is that, the vital point is normally missed in political histrionics is that while it is impossible to have social justice without economic growth.
OBJECTIVE OF STUDY
To ascertain the nature purpose and policy-objectives of legal rules and principles that govern a specific situation and determine their current relevance.
SCOPE OF STUDY
- Drawbacks of Indian judicial system
- Case comment of two current socio-politico-legal issues
- Rahul Gandhi’s defamation case
- Women’s activist Rehana’s obscenity case
SIGNIFICANCE OF STUDY
This study paper helps in understanding the role of law in society and how law actually works.
RESEARCH QUESTIONS
- Whether Indian judiciary system is able to deliver true justice to people who are genuinely in need of it?
- Whether drawbacks existing in present legal system be resolved?
RESEARCH METHODOLOGY
This study paper is combination of descriptive and explanatory studies, hence is considered as doctrinal research, complemented with explorative methods to comprehend the topic better.
LITERATURE REVIEW
This study paper is an outcome of mixture of journals and articles reviewed in a traditional and narrative mode.
- Lawyers update – A magazine for legal professionals and students.
After identifying the research problem, this particularly was very helpful to achieve my hypothesis.
- JSTOR: Helped the researcher in understanding the relation between law and morality.
- Hein Online: one if the premier online article and journal source.
These literary sources could help researcher by providing an approach to look into the actual study, and researcher could find the aspects in which the study should take place.
- Sociology of Indian society- C.N Shankar rao. This literary review helped researcher to get basics right to accomplish the objectives that are set for this study paper.
INTRODUCTION:
Justice is considered to be one of the divine attributes and a judge is described as a blindfolded person who holds the scales of justice, which he administers even handed. In ancient times the function of the judge was vested in the priest. Though in the modern states religion has nothing to do with the machinery of government, except for Islamic countries, yet the sanctity attached to the office of a judge remains unchanged. The functions of a judge are multifarious and arduous. Howsoever just and sound the laws be, unless they are applied by an upright, honest and impartial authority, citizens cannot secure justice. The judges should accordingly, be men of keen intellect, high legal acumen, integrity, dignity, and independence of judgement.
Legal Institutions and Justice
Justice is something that upholds the law which deal with social legislation, that serves the present social and economic objectives of the nation and deal with current social problems. It refers to the formulation and implementation of rules and regulation endorsed by the constitution and the judicial organizations in a state. It also stands for just conduct, fairness or exercise of state authority for maintaining of individual rights. Justice implies establishment of status quo, It seeks to protect one’s life, liberty, and property.
Legal profession is an occupation of gentleman so eminently qualified by their and principles of honor as at this appear to discharge the duties of an advocate. The central function that the legal profession must perform is nothing less than the administration of justice.
Drawbacks of the Institution and Officers of Justice
An advocate is an officer of justice and friend of the court, legal profession is the noblest and dignified profession. In legal profession the advocates should posses fair and honest character and conduct. The practice of the advocate has a public utility flavor. Whereas in some situations due to lack of debating skills or lack of proper idea on the particular case the public prosecutors cannot win the case thereby the party is denied justice by the court. There is a landmark case in this note, Ms. Priyadarshini Mattoo case, in October 2010 Santosh Kumar Singh vs. state through CBI-
“Though I know he is the man who committed the crime, I acquit him, giving him the benefit of doubt”. This shocking statement of the additional sessions, G.P Thareja in Ms. Priyadarshini Matto case, while acquitting the accused reflects the deplorable state of our criminal justice system. This is one of the cases to have triggered public indignation over the miscarriage of justice at the instance of high profile and indignation over the miscarriage of justice at the instance of high profile and influential accused Santosh Kumar Singh, son of former senior IPS officer J.P Singh. Over the years of corruption in the judicial system coupled with political influence has become so rampant that it has in turn resulted in distortion of the entire Indian judiciary.
It is said, “power corrupts and absolute power corrupts absolutely”. It is ironical that the judiciary itself being one of the most potent organs of the government is subdued by the rich and persuasive lot of the society. Sadly almost all the constitutional safeguards and restraints on judicial misconduct were dead then. This particular case went on till supreme court delivered its verdict on 6th October 2010 upheld the conviction of Santosh Kumar Singh in the fourteen year old, Priyadarshini Mattoo rape and murder case. “Justice may not only be done but it must also seem to be done.” Thus, the judiciary as a fillip to the nation must strive to deliver justice in all circumstances without any fear, favor, affection or ill will. If the independent judiciary is the pillar of democracy, the bar is the foundation of independent judiciary. The administration of justice benefits from the participation of the bar and bench. The lawyers and public prosecutors are the officers of court ad with the aid of lawyers judge administer the law. So public prosecutors should be diligent but not negligent as in the case of Priyadarshini Mattoo.
Delay in disposal of cases is one of the major drawbacks of the country. Nani Palkhivala said, Legal redress is time consuming enough to make infinity intelligible. A law suit once started in India is the nearest thing to eternal life ever seen on this earth. The three grave short comings of the present system of administering justice.
Firstly, the commercialization of legal profession, legal profession in current times is so commercialized. Unfortunately, we accept perjury as a fact of Indian life. The worst danger is not that even persons in high public office perjure themselves. The worst danger lies in public acceptance of such degradation of national character.
Secondly, administration of justice suffers from the intractable complexity of modern society. Life has become more complex, and corruption and all round lowering of standards are more pronounced, than ever before
Thirdly, while all the time we emphasize rights, we don’t lay a corresponding stress on our responsibilities. De Tocqueville made the profound observation that liberty cannot stand alone but must be paired with companion virtue: liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and civic responsibility.
CHAPTER 2
Judicial Independency Challenged.
With the pious intention to bring renaissance in the age-old legal profession, learned scholars have periodically been contributing their innovative ideas, there by eradicating complexities and miscarriage of justice, however the ground reality is that ever since the country got independence, desirable cordial relations between bar and bench appear to be a mirage. Bar and bench are the two wheels of the chariot of justice delivery system of any country. In pursuing justice, judges and advocates complement each other. Nani Palkhivala also quoted-The most persistent tendency in India has been to have too much government and too little administration; too many laws and too little justice; too many public servants and too little public service; too many controls and too little welfare. Every segment of people’s enterprise is festooned with red tape. The following is a perfect proof for this
Rahul Gandhi v. Purnesh Ishwarabhi Modi ( criminal defamation case)
The supreme court on 4th August stayed the conviction of congress leader Rahul Gandhi in a criminal defamation case for his ‘Modi’ surname remark allegedly made at a political rally in Karnataka in 2019. The three judge bench headed by justice B.R.Gari, said that Surat chief judicial magistrate, other than severely admonishing Mr. Gandhi for his allegedly remark, failed to give even a single reason for serving the congress leader with maximum sentence for two years imprisonment. The Gujarat HC too, while dealing with the various aspects of the case in a voluminous 120 page judgement, had somehow skipped addressing the issue of complete lack of reasons for giving Mr. Gandhi the maximum punishment said SC bench. It however noted that the alleged remark was not in good taste.
After looking into this case we can analyze that, there is no absolute correctness with the lower courts, and in view of political frame this case has been exaggerated out of a not very
big issue for political benefits, which ultimately led to waste of power by disqualifying Rahul Gandhi, which in return can stagnate the development or welfare to his constituency. Law is to reduce disharmony in society which is taken as an irony in this case.
Sexual Harassment case on Brij Bhushan Sharan Singh. ( wrestling for justice)
Two FIRs registered by Delhi police against outstanding WFI chief based on seven complaints of the minor and six adult wrestlers narrating explicit details of groping, inappropriate touching, sexual harassment, staking and intimidation from 2012 to 2022, hang fire. On April 28, these FIRs were registered by Delhi police on supreme court intervention. Minor wrestler has invoked the protection of children from sexual offences act, 2012, whilst alleged offender has been charged with outraging modesty, sexual harassment and stalking under Indian Penal Code. Public outcry, shock and anger amongst sportspersons, serious media criticism and abject horror, have not even led to the arrest of accused. Immersion of medals by wrestlers in Ganges has found support even with India 1983 world cup cricketers. Bit, sadly police station and wheels of justice stand grounded and wrestlers now battle for justice on streets instead of wrestling grounds.
It is a matter of public shame and international disrepute that women wrestlers who have had courage and strength and seek justice, have been forced to storm the bastille. As sovereign, social, secular, democratic, republic, state cannot deny equality before law and equal protection of laws. state must ensure that right to live a dignified life with dignity, is a fundamental right. If women wrestlers have wrestled to bring glory, honour, and medals for India, reciprocity demands that state must protect and uphold honour, repute and respect for them. It has taken momentous valour for women to open a pandora’s box of alleged sexual abuse. Wrestlers are not supposed to wrestle in streets for justice. Court battles are there to engage counsels in quest for justice.
Contrast of court’s role in both the cases.
In Rahul Gandhi’s criminal defamation case the court’s judgement was illogical and for which abundant of time, resources and effort was put into, where the same could have been utilized for the betterment of the case backlog existing in the courts. Such type of instances will be frequently coming to the court’s preview where it becomes a do or die case for the courts. Whereas in the case of wrestlers’ sexual harassment case it was a such an atrocious crime against human, in which courts’ sue motto cognizance should have come into the frame which did not. Likewise in the course, there are many instances where judicial authority is not being utilized properly. we can surely say the judicial independency is not misused or taken for granted to dismiss very important cases but it not being utilized to the extent it is destined to by the constitution.
CHAPTER 3
Conflict between Morality and Justice.
Law and morality are considered as the basic pillars of social institutions. The two elements play a vital role in the maintenance of peace, security and prosperity in society. “Law and morality were both identical. Both arise as a result of habits and experience in primitive social life when moral and social lives were not separate”. In spite of certain differences, law and morality are meant for common welfare.
Law is concerned with the external behavior of individuals, enacted with a specific objective. Morality is concerned with the entire life of individuals, and their conscience. Public opinion and individual conscience lie behind morality. Moral principles are inherent in society and sanctioned by it. Moral principles are subject matter of ethics. Aristotle said, “Truth lies in middle”….. here it would be pertinent to add the truth about obscenity lies in the middle. In India and other countries, the definition of obscenity has been oscillating from country to country and bench to bench of various high courts, and the supreme court. Most of the times learned judges have displayed their philosophical skills in deliberating and establishing the true sense of the obscene act, but no exact of definition could have some com to constitute the offence of obscenity and as such no fixed or uniform punishment has been legislated to prosecute and convict the perpetrators of the crime of obscenity. The truest definition of “obscenity” seems to be phoenix or a mirage.
The Kerala high court on June 5 2023, quashed a case filed against a womens’ rights activist, Rehana, under section 10 read with section 9(n); section 14 read with section 13(b):and section 15of the protection of children from sexual offences act 2012. The woman was also charged under section 67B (a),(b)and (c) of The information technology act 2000: and section 75 of juvenile justice act, 2015.The court made important and significant observations about the differing ways society treats nudity for male and female bodies. Justice Kauser Edappagath said, “society’s concept of morality and some people’s sentiments cannot be the reason for prosecuting a person. Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default. So also the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent or sexually explicit. what is considered as morally wrong is not necessarily legally wrong judge said, and considered mother-child relationship is one of the most solemn and pious relationships.
At last on June 5, 2023, the kerala high court dismissed all charges against her, underscoring that the mere sight of the naked upper body of the woman should no be deemed to be sexual by default.
In this note it is correct to mention, that Aristotle also said, “The generality of law falters before the specifics of life”. Quite often, the legislation is skeletal leaving many gaps and conferring powers on judges to interpret and act in the light of their individual philosophy.
The court further said, “we are, in this case, concerned with a situation at present we are technology dominated world and while judging as to whether a particular photograph, an article or a book is obscene, regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons”.
It is pertinent to point out the irony and double standards of law that on one side supreme court is highly sensitive towards publication of some text in lady chatterley’s lover. Whereas, on the contrary the same judiciary is not allowing the socially dangerous obscenity through the prevalent ‘Online pornography’ but is also supporting the government in its prevalence, proliferation and dissemination, as was seen in Kamlesh vaswani’s case 177 of 2013, pending in the supreme court.
In Rehana’s case, the ideas of gender equality, body, autonomy, and artistic freedom all
intertwined with the concept of obscenity. As a rallying cry for women’s rights activists in the early 1970s, “ my body, my choice” emphasized the fundamental right that each person has to make decisions about their own body. Patriarchal society continues to place obstacles and limitations on women’s ability to cover their own bodies, despite the considerable achievements made in the battle for bodily autonomy.
Here comes the conflict between morality and justice- moral cancer…former special commissioner of Delhi police, said, giving the overall context of the case, the judgement appears as misplaced. If you allow children to do such acts, their minds become vulnerable to unhealthy and deviant thoughts. “Our Cultural ethos do not permit such acts. It is against decency and morals of any civilized society. All over the world, women normally cover their body, if not it becomes repulsive over time. The west may have been tolerating it as their cultural value are different but there are also many who dislike such acts of indecency. So prosecution of the activist is certainly justified.
Likewise many cases do get struck in between moral virtues and legality of provisions… it is difficult to interpret on which aspect of the case should prevail?
CONCLUSION:
There is no doubt upon the credibility of Indian judiciary system. It is one of the largest judicial systems around the world having a law for almost all sorts of criminal activities. If we look at the history, the supreme court, since its inaugural sitting on 28th January 1950 has delivered over 25000 judgements. But still many major issues that were discussed earlier are the pendency of cases, corruption, lack of transparency in the appointment of judges, judicial vacancies,Transfers of judicicial officers under trails of the accused, lack of information and interaction among people and courts. With all these drawbacks in its account Indian judiciary can not obviously reach a stage where it can give instant justice to the legal illiterates. Some measures should be taken to overcome the short comings those can be,
1. Increase in the strength of judges- where a commission should be set up for appointing competent and skillful judges who would give judgements in one go and the remedy of review and revision is not consumed. The judges should be appointed from varied social backgrounds
2. Establishment of fast track courts- with helps in giving speedy trials and would prevent the aggrieved party from being harassed till the time the final decision is delivered.
Likewise, if the system develops there would be a great transformation in the society. And also the faith of the common person in judiciary may be restored before it’s completely lost. Thereby the solutions for the research questions posed are established.
BIBLIOGRAPHY:
Books:
- The Indian State- Oxford
ICSSR research surveys and explorations.
- Text book of sociology- DR. S.R. Myneni (2, 2006) 206/6
- Sheryar Naeem The role of law in society 2020.
- Nani palkhivala- a role model
- Principles of political science – Dr. Anup chand kumar
Magazines:
- Lawyers update vol XXIX, part 6 and vol XXIX, part 7
- KIIT journal of law and society, volume 12 /2022
Others :
- SCC online web edition for cases mentioned.
- Legal research and writing methods by Anwarul yaqin..
