Date:- 02.02.2016
Facts and case apart regarding the mode of appointment of judges
to Supreme Court and High Courts and unaware about the working in the Supreme
Court; what is experienced in the High Courts is not pleasant. During the
course of arguments in the said case the attorney General of India had
questioned the quality and ability of high court judges. The law reports, the
functioning of high court judges as is seen to day does not give a positive
sign of their quality of judgments and orders. To some extent it might be
affected by CIA that is Corruption, In competency and Arbitrariness.
There are several reasons in this respect. Some are routine like
push and pull, uncle syndrome lobbing in the bungalows of the power holders and
like nature.
That apart there is a sever misunderstanding that an advocate
who has ample writ work is a leading and able lawyer. This misunderstanding is
prevailing for several long years. In fact there is nothing special in working
on writ jurisdiction. There may be some special cases in which some
constitutional problem is involved but on an average there is nothing like
this. A lawyer who works on writ jurisdiction before high court comes in the
light of the sitting judges and they start thinking how nice the lawyer is
working.
An average man should know about the writ jurisdiction. Article
32 and 226-227 of the Constitution of India deals with it. The Article 32
related to Fundamental rights and a part of Article 226 also relates to
Fundamental rights. On the matters of Fundamental rights high courts and SC has
exclusively coextensive-concurrent jurisdiction. However the scope of Art 226
has some what larger and it deals with other 'rights' also. Art. 227 relates to
power of superintendence over subordinate courts. When the jurisdiction of
civil courts/tribunal/authorities is barred under any law an aggrieved
party may approach High Courts. High courts exercise power when there is no
alternative remedy to an aggrieved party and in some cases there is no other
efficacious remedy or there is expediency/emergency/exigency. If in such cases
if the jurisdiction of civil court is not barred then such civil courts may be
quite competent to try such cases. Therefore there is nothing special in the
cases of writ jurisdiction. The only fact is that it is less time consuming but
it is too costly also. A simple thing made too costly! Awful! It is just a case
of bugbear!!-A thing that causes obsessive fear or anxiety.
Water finds its level. Most of the judges and advocates hardly
works on civil side as it is time and head consuming work and less paid matter
and therefore in courts work on writ side is done more and more. A civil
advocate knows even in a small cause suit for recovery of Rs. 100/- only how
much labour he has to do. For that he should know Small Causes Court Acts
(provincial and state), CPC, Court Fees Act, Suit Valuation Act, Stamp Act,
Limitation Act, Evidence Act, law of execution, jurisdiction of courts,
knowledge of accounts and so many other basic things.
Advocates working on civil side are least preferred for
elevation because there are very few judges who work on civil side and
therefore they have no say in recommending the names of such advocates. It is
generally observed that civil work is assigned to judges who are elevated from
service cadre. However there are such judges who are exceptions in this matter
and the plus point for such exception is that they can work in all branches of
law with full ability and capacity. A lawyer who successfully works on civil side
is most competent advocate who can be elevated to judgeship. But writ advocate
can be compared as Meggi a popular dish and civil advocate as Sattu which is
certainly not popular. Sattu also takes hardly a minuet or two to be prepared
and also healthier too.
Seen from this angle and having good experience to evaluate
judges and advocates it can be safely said that in recent years the standard of
the judges is just average and that of mediocre and of not high quality. We
have seen judges having no experience on civil and criminal side but were
elevated as judges. We have also seen judges having worked on criminal side and
were elevated as judges but there were and there are very few judges who worked
on all sides and could be elevated as judges. An advocate who works on civil
side certainly develops ability, capacity and understanding to work on all
branches of law.
Now a day on an average working in court is just disposing of
cases and not deciding them. It is like fast food services. Advocates and
judges do not want to go in depth of a case to do justice. Have no time to read
pleadings, law and case law. Like cinema or serials it has become a
formula type justice. It is forgotten that there is deep
relation ship between justice and application of mind, reasoning, logic, equity
& law.
What is said is of recent past. We have had judges having aura
of confidence, knowledge, humanity and gracefulness. One of their qualities is
that they not only go through the case law on different subjects but they also
go through the main provisions of law and text books to have facet and crystal
knowledge about each and every aspect of particular subject
matter of a case.
After hearing the arguments they had given second though to the
arguments advanced by the parties. Thus they had comprehensive study about each
and every case. They knew that to err is human; error of judgment and error in
judging are quite different things.
In present day on an average a judge has to deal with about
100-150 cases in a day and therefore there is possibility that the judge is not
in a position to do justice in each and every case. Presently there are 1017
posts of high court judges and about 375 posts are vacant. It is therefore
wrong to expect justice from courts and the manner in which general public
expect. By establishing tribunal legal authorities etc the standard of justice
has sharply reduced.
The process of selection of judges to district court level and
higher courts requires being quality wise. Vigorous training to district
judiciary is very much required.
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