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Insights into Editorial: Ensuring access to justice
The justice system in any democracy is set up, under the Constitution to serve the public without “fear or favour, affection or ill-will” as far as judges are concerned.
The Indian Judiciary plays an increasingly important role in the life and the governance of this country.
It is argued that the Indian judiciary has become all powerful, mostly by taking on enormous authority in policy areas that are technically beyond its ambit.
But, As the author highlighted the India case: As far as India is concerned, in operating the system have stopped that very access judges through lack of prescience, and many lawyers through their dishonesty in many forms.
Revisiting judges advice on different benches of Supreme Court:
- Under Article 130, the Supreme Court can sit in other places to deliver justice.
- In fact, around a decade ago, the Central Government advised the Supreme Court to sit in other places, but, the Supreme Court decided against the idea.
- It was felt that the authority of the Supreme Court would get diluted.
- The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
- At an informal meeting, all of the then sitting judges of the Supreme Court advised the then Chief Justice of India to decide against the request of the then Central government to sit in other places in the country under Article 130 of the Constitution.
- The reason judges decided against it was because we felt that the authority of the Supreme Court would get diluted.
- However, Many High Courts in this country have different Benches for meting out justice without ‘justice’ being ‘diluted’.
- The number of Benches depends on the size of the State, the idea being to facilitate easier access to justice.
- For example, the Bombay High Court has four Benches — in Mumbai, Aurangabad, Nagpur and Panaji (Goa) and the quality of its decisions or status have certainly not been diluted
Direct consequence of the wrong decision has been three-fold:
First, the Supreme Court sitting only in Delhi has resulted in excellent lawyers from other High Courts not appearing before the Supreme Court, possibly because it casts too large a monetary burden on their clients, many of whom are being middle class and lower-middle class.
Second, all lawyers, whatever their calibre or competence, who happen to be in Delhi now appear in the Supreme Court.
Some of the good lawyers who were able to leave lucrative practices in the High Courts have settled down in Delhi, but they have established a monopoly.
As a result, charge unconscionable fees even from charitable concerns sometimes even when they do not appear at the hearing. This is also true of litigating lawyers at all levels of the judicial system.
The third fallout of the failure to act under Article 130 is that the Supreme Court in Delhi has been flooded with work and been reduced to a District Court instead of a Court of Final Appeal and Constitutional Court as envisaged under the Constitution.
Unethical lawyers: Resulted in Delaying and Denying Justice:
But the fault in actually denying access to justice to citizens is the fault of unethical lawyers alone.
Lawyers are (frequently) humorously called liars, and because they are the middle-men between judges and the litigating public, they act like dishonest brokers.
Some of the lawyers specialising in victim compensation cases do not charge any fees for their services and render services free of cost.
They generally obtain a blank cheque from the victim which is filled in after credit of the compensation to the bank account of the victim.
Some of the lawyers specialising in victim compensation cases thus take huge money as a percentage of compensation amount awarded towards victim compensation. Such a practice is frustrating the whole purpose of victim compensation.
The procedure is similar to that adopted by some advocates dealing with Motor Accident Claim Cases under Section 166 (application for compensation) of the Motor Vehicles Act, 1988.
Incidentally, according to a study carried out by a research organisation, Vidhi, in the Delhi High Court, more than 70% of the delays in the disposal of cases are attributable to lawyers, a major reason being sometimes unjust pleas for adjournments.
Disciplinary action against Lawyers:
Unfortunately, the disciplinary powers available to Bar Councils both in Delhi and in States are more often than not ineffective.
Some are politically motivated and some States do not have disciplinary committees at all.
The disciplinary jurisdiction over lawyers was originally with the courts.
This continued till the power was taken away by the Advocates Act, 1961.
The solution to the present situation is to give the disciplinary jurisdiction back to the courts and to repeal the Advocates Act, 1961.
The way forward:
Therefore, to hound out the corrupt lawyers from the system at all levels so that justice may be truly rendered to the public, mentioned few suggestions:
First, the Supreme Court should reconsider setting up Benches in different States in keeping with the recommendations of the Law Commissions (125th Report and 229th Report).
Second, the Bar Council of India should exercise its powers under the Advocates Act, 1961 more effectively.
If not, the disciplinary jurisdiction must be returned to the judiciary as was the position prior to the Advocates Act, 1961 by repealing the 1961 Act.
Third, lawyers should be made irrelevant by referring more cases to trained mediators, as the Supreme Court has done in the Ayodhya dispute.
There are many underlying issues that need to be addressed if justice is to be made accessible in a better way.
These issues are hefty fees charged by the lawyers to present a matter and the huge court fee.
Unfortunately, lawyers are no exception when it comes to monetary issues. This is manifested in the manner in which some lawyers entrusted with state briefs handle matters.
Self-realisation is the first step towards change. The Supreme Court has an ideal opportunity to brainstorm on this. In this connection, former judges of the Supreme Court and High Courts, sitting judges and academic luminaries can be a part of the process.