The judiciary has an important role in the governance of India. For some time there are many issues related to, state power and accountability are pending in the judiciary.
During the framing of the Indian Constitution, it was proposed in the Constituent Assembly that any matter which violates the fundamental rights of individuals should be disposed of in the judiciary within a month. Although this provision could not be included in the constitution, but it demonstrated the importance of individual liberty and fundamental rights. But at present, many such important issues are pending in the judiciary which are related to the power and accountability of the state, somewhere this situation is weakening the importance of fundamental rights.
Important issues pending in the judiciary
Jammu and Kashmir Case:-
It may be noted that on August 5, 2019, Article 370 of the Indian Constitution was suspended by the order of the President. This article provided special status to the erstwhile state of Jammu and Kashmir. With this, by using Article 3 in the Parliament, the state of Jammu and Kashmir was converted into two Union Territories. At the time when this order was given, President’s rule was enforced in the state of Jammu and Kashmir. Against this decision of the government, a suit(Filing suit means presenting a formal document called a Petition or Complaint with a court that initiates a lawsuit) was filed in the Supreme Court. In Which, some important questions were raised which are as follows :
Can the center take advantage of Article 356(Under Article 356 of the Constitution of India, if a state government is unable to function according to Constitutional provisions, the Union government can take direct control of the state machinery) to divide the state or change its status?
The second question was that although Article 3 provides that Parliament can change the boundaries of the state, but does this article also refer that the Union government can reduce the existence of the state by converting it into a union territory?
These questions pending in the judiciary after 5th August 2019, have not been resolved yet. This somewhere raises a question mark on the competence of the judiciary.
According to ARTICLE 3, Parliament may by law—
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
Electoral bond issue:-
• Election in India is a process related to the transfer of public sovereignty. In electoral bonds, there are certain Provisions for elections financing, so it requires more attention.
• The pendency of the Electoral Bonds case is going on for about 4 years.
• The problem with Electoral Bonds is that it provides for donations to national parties and state parties, which in turn creates a disparity with independent candidates.
• Corporate houses, who finance the parties, can create pressure on political parties for making policies of their benefit. Somehow it corrupts the process of democratic elections.
• Even after almost 4 years, the matter has not been resolved.
Citizenship Amendment Act:-
• The Citizenship Amendment Act was passed by the Parliament in 2019, providing citizenship to the victims of religious persecution (ie minorities in these countries) from Pakistan, Afghanistan, and Bangladesh, who have come to India by 31 December 2014.
• Hindus, Sikhs, Parsis, Jains, Buddhists, Christians are minorities in these three countries. There was a lot of controversy in India and the matter went to the Supreme Court regarding the violation of Article 14. No specific decision has been taken on this matter also.
Article 14 of the Constitution of India reads as under: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
In 2020, ordinances were brought by the government in the form of three agricultural laws, against which farmers’ unions petitioned the Supreme Court and started the agitation on the road. After more than 1 year, the proper decision was not taken by the judiciary. But now these three laws have been withdrawn by the government
• Judgment was given by Gauhati High Court in 2013 in respect of CBI that CBI is not a statutory body(Statutory bodies are established by an act of a parliament whereas constitutional bodies are mentioned in the constitution and derive their powers from it) and powers of CBI will have to be curtailed in states, is pending in Supreme Court.
• There is a petition in the Supreme Court concerning Section 43D(5) of the Unlawful Activities Prevention Act. This section prevents the bail of persons under this Act with immediate effect.
• This act is misused as this case has been registered against the litigants in the Bhima Koregaon case. This condition restricts the liberty mentioned in Article 21. This matter is also pending in the Supreme Court. Although the judiciary is not neutral in these matters, the issues related to human liberty, state power and federalism demand an early settlement as all these are among the basic elements of the Constitution.
Problems arising from these situations:-
• This situation is showing the heavy burden on the judiciary and the lack of efficiency of the judiciary. Somewhere the fundamental rights of common people have been affected due to lack of better decisions and quick decisions on issues like elections, federalism, citizenship. The status quo(the way things are now He's content with the status quo and isn't looking for change. She wants to maintain the status quo) on these issues does injustice to an individual or a group of individuals.
• The right to constitutional remedies given under Article 32 was called by Babasaheb Bhimrao Ambedkar as the Soul of the Constitution. Thus delay in the interpretation of questions arising on constitutional values is affecting the basic elements of the constitution.
• Violation of rights and delay in justice on those disputes are affecting democratic values. Delays in decision-making on matters of the balance of power lead governments to move from democracy to an authoritarian system.
Other problems prevailing in the judiciary:-
• Increasing number of pending cases - According to the National Judicial Data Grid, the total pending cases in India in July 2021 was 449 lakhs which was 23 lakh more than in January 2021.
• Low rate of disposal - In India, more than 40% of cases are such that take more than 3 years to resolve. In developed countries, such cases are only 1%.
• Lack of transparency in appointments:- The problem has become worse due to lack of transparency in judicial appointments of higher courts and non-recruitment of vacancies in lower courts.
• Difficulty of the judicial process - Difficulties of legal language in India with the presence of higher courts, lower courts, Lok Adalats and various tribunals add to the complexity of the judicial system.
• Work pressure:- Due to the short tenure and heavy work pressure, the judges of the Supreme Court do not get the opportunity to excel in the law.
• Colonial Elements:- Colonial elements are still present in the judicial system. It has not been completely Indian due to language, process, and essence.
Important decisions given by the judiciary:-
• Attempts have been made by the judiciary of India to make the society and the laws of the state progressive. Many times the judiciary has followed the principle of separation of power and controlled the power of the state, while it has done the work of making the society progressive.
• By the Sabarimala judgement, judicary weakened the patriarchal masses by allowing women to enter the Sabarimala temple.
• Human liberty was promoted by the judiciary by decriminalizing Article 377 (about the LGBTQ(Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.) community) and Article 497 (about adultery).
• The rights of women were protected by the judiciary itself by deciding on the issue of triple talaq and efforts were made to reduce gender inequality.
• Daughters got equal rights in property by the decision given by the judiciary itself.
• Honorable Court has played its major role in making society progressive through all the decisions.
• In the SR Bommai case, the Supreme Court issued a comprehensive guideline for the use of Article 356, after which the use of Article 356 was reduced to a certain extent.
• The basic structure theory given by the judiciary in the Kesavananda Bharati case describes the essential elements which are basic and necessary for the constitution. Thus we can say that although the workload and lack of human resources have affected the efficiency of the judiciary, the role of the Supreme Court is important for the progress of the Indian society and the protection of fundamental rights.
The need for reforms in the judicial system:-
Judiciary is very essential for the Indian democratic process and constitutional supremacy and in fact, some reforms are needed in the judicial system to ensure “rule of the people” - which is described below:
• Reduce the pendency of cases by filling the sanctioned judicial posts and the second remedy is to improve judicial work by using technology.
• The analysis shows that between 2006 and 2019, the average growth in pending cases was less than 2% per year while the average vacancy in sanctioned judicial posts was around 21%. Had the sanctioned posts been filled, the number of pending cases each year would have been reduced.
• The responsibility of ensuring almost zero vacancies should lie with the Chief Justices of the High Courts and the Chief Justice of India and they should be held accountable for the same.
• It is necessary to increase the application of e-filing and virtual hearing keeping in view the recommendation of the e-committee of Supreme Court.
• In addition, an All India Judicial Service should be created to improve the quality and quality of judges by attracting the best available talent at the level of subordinate courts. Recently, the government is considering bringing a bill in this context.
• Reducing the number of tribunals and making them more efficient. The government is also making efforts in this direction.
• There is a need to Indianize the judicial system. It is very important to Indianize this entire judicial system to get justice in a real sense to its citizens. By doing this, the justice system will not only be cheap but cases will also be disposed of quickly and people’s faith in the justice system will also be strengthened.
Judiciary has got the difficult task of establishing democracy in India, following the principles of constitutional supremacy, natural justice, and maintaing the balance between fundamental rights and state power. Many times justice gets delayed while balancing these principles. The efficiency of the judiciary has to be improved by implementing reforms because delay in justice can be a factor of injustice which will be contradictory to the concept of justice.