JUDICIAL PROCESS IN MODERN INDIA

 

After independence India adopted a normative constitution . The present Indian judicial process

is governed by British imposed adversary system even though there is no mention of it in the

constitution . Main attributes of this system can be understood under following heads:–

(i) ACCESS TO JUSTICE

The term access to justice is variable according to the variation of the definition of

justice, earlier access to justice meant merely  the aggrieved individuals formal right to litigate or

defend a claim but now it means an equal right of having recourse to an affordable, quick,

satisfactory settlement of disputes from a credible forum.1 Modern access to justice can

categorized into formal and informal access to justice. The formal access to justice is basically

adjudication of disputes by the courts which follow the rules of Civil and Criminal

Procedure. Whereas informal access to justice includes alternative modes of dispute resolution

such as Arbitration, Conciliation, Mediation, Lok adalats and Nyaya-Panchayats , which are

merely of supplementary nature to the court system . They are not bound by the provisions of

C.P.C and I.P.C but has to follow the principles of natural law. Informal and formal modes of

justice both are against the principles of parity of law devised by Article 14 of the constitution,

because in informal modes of access to justice one has to often compromise with his legal rights

in interest of time, cost of money etc. which is very much against the gurantee of Article 14 and

duty imposed on state therein .

 

(ii) HURDELS IN ACCESS TO JUSTICE: Formal modes of access to justice also has many

drawbacks which are discussed below-

 

1 P P Rao, “Access to Justice and delay in disposal of cases”, 30 IBR 208 (2003)

1.      Law of limitation: The aggrieved person has to satisfy first of all that his suit is not barred

by the law of limitation act 1963 and if barred by law of limitation the judge may or may not

entertain his suit . Thus it is absolutely denial of Article 14 which imposes unqualified duty on

state to provide equal protection of laws , and is anathema to any kind of arbitrariness . Law of

limitation is nothing but a restatement of exploiting British imposed law of limitation act , thus it

is also hit by Article 13(2) .

2.      Court fees: With the institution of the suit a court fees is required which is determined by

the court according to the provisions of the court fees act of 1870, and on  failure to pay the court

fees or postal charges  the suit may be dismissed2. This high cost of court fees compels the

litigants to abandon their just claims and defences. Here justice is not given but sold . Thus  court

fees act is unconstitutional under Article 13(2) read with Article 14, which was originally a

method of raising fund and exploitation by ruler on ruled so that there can be less accountability

of the state .It also does not satisfy the ethical, time and other essentials of the power spectrum.

3.    Advocacy : Advocates are inseparable part of the adversarial system , wherein the role of

judge is like a referee who decides the case on account of the performance of the both

parties  advocates . He never intends to provide the justice by bringing the truth , but to award

the best competitor . Thus in this situation , the determining factor for the judicial process and

justice is the competency of lawyer which depends upon the financial capacity of the party ,

which results in absolute denial of the parity of power guaranteed by Article 14.

4.    Procedural hurdles: After institution of the suit the aggrieved person has to go through the

procedures of C.P.C or Cr.P.C which does not reflects the values of the constitution but the

values chosen by the colonial masters.

(iii) DELIVERY OF JUSTICE

Delivery of justice is basically the part and parcel of the executive branch of the

government popularly identified as the access to justice through administrative authorities.

Article 256 gives a supervisory power to the union over state for compliance of laws, and Article

2 Ibid O- ix R 2 .

356 read with Article 365 is the consequential result for non compliance of constitutional

obligations by the state .

 

But when the executive fails to perform his duty , the courts venture to deliver justice as a

corrective measure. Article 14 casts a duty on the state which also includes judiciary to provide

justice by giving equal protection of laws to all its citizens . But it has been seen that on many

occasions judiciary has failed to provide the justice according to the provisions of constitution

and statutes.