Exercising of prudence by Indian Judiciary

The beginning of the modern Indian Judiciary can be dated way back to establishment of a Mayor’s Court in each of the presidency towns
Exercising of prudence by Indian Judiciary

Bishaldeep Kakati

(Advocate, Gauhati High Court, he can be reached at deep.kakati99@gmail.com)

The beginning of the modern Indian Judiciary can be dated way back to establishment of a Mayor's Court in each of the presidency towns, viz. Madras, Bombay and Calcutta under the charter of 1726. However, it was the Regulating Act of 1773 that was instrumental in establishing for the very first time the Supreme Court of Fort Williams in Calcutta in 1774, consisting of the Chief Justice alongside three judges. Following which, the High Courts Act of 1861 was passed by the British Parliament with the objective of establishing high courts in India. Accordingly, the High Courts of Calcutta, Madras, Bombay, Allahabad and Patna were established. The Government of India Act 1935, thereafter established a Federal Court at Delhi which can be seen an immediate precursor to the Supreme Court of India. Therefore, the modern Indian Judiciary system is almost 300 years old, and in this long tenure, Indian Judiciary has not only been appreciated by the denizens for its remarkable and landmark decisions, but also has been criticized many a time for not being able to deliver up to people's expectations.

The conspicuous thing is that the people of the republic of India still have a lot of faith upon the judiciary and they often take judiciary as the last resort to address their grievances when all the other mechanisms have failed. But it is the immense pressure upon the judiciary considering the number of cases that are filed every now and then, that the judicial system often fails to dispose cases swiftly and deliver justice on time. As per reports, although India has a sanctioned strength of 25,628 judges, but there are over 4.7 crore cases pending in the courts across the country. And that remains one of the crucial reasons for people losing their faith upon judiciary and criticizing the same. However, in the recent times, the Indian judiciary has once again grabbed the headlines not because of pendency of cases but for all the good reasons that have again made people instill lot of faith upon the judicial system.

In a recently held joint conference of Chief Ministers and Chief Justices of High Court, which also had the presence of the Prime Minister of India, the Chief Justice of India NV Ramana quite rightly pointed out about the constitutional provision of separation of powers and functions amongst the three organs of the democracy and as such he opined that while discharging the duties by the three organs, one should be mindful of Lakshman Rekha. The Chief Justice of India also told that the judiciary would never come in the way of governance if it is in accordance to law. Apart from that, CJI Ramana also raised concerns over misuse of PIL and the deliberate inaction by government despite judicial pronouncements, which is not good for the health of democracy. Thus the one thing that clearly came out from the conference was that the Judiciary shall not hold back to exercise its power and dismiss any form of governance or Act which is not according to the law. The conference also served a straight statement to the government, to follow and implement the judicial pronouncements. The messages coming out from the speech of the CJI have once again made people bestow heaps of praise upon the Indian Judiciary and indeed if the Indian Judiciary can come out with apt judicial pronouncements at the right time, the true spirit of Indian democracy can be upheld.

However, the direct effect of the speech of the Chief Justice of India could be seen when just a few days back, the Supreme Court of India directed the Centre and States to keep in abeyance all pending trials, appeals, and proceedings with respect to charges framed under Sedition (Section 124A of the Indian Penal Code), till the Central Government completes the promised exercise to reconsider and re-examine the provision. A brief history of Sedition law shows that the same was a law formed during the colonial era and although Sedition was not directly added in the IPC initially, but it was in 1890 when sedition was included in the Indian Penal Code under section 124A through the Special Act XVII. The provision of Sedition was exclusively used against India's freedom fighters, in order to curb political dissent. The likes of Bal Gangadhar Tilak, Annie Besant, Shaukat and Mohammad Ali, Maulana Azad and Mahatma Ganndhi etc., were also charged with Sedition. But in recent times too it was seen that the Sedition law was misused and many people who went into protests and agitations were charged with Sedition, but for most of them, the charge sheet couldn't be filed. Continuous misuse of the law probably prompted the Apex Court of India to stay the Sedition law, till the provisions are re-examined or amended by the Centre. And as soon the Apex Court decision grabbed the headlines, most of the people of the nation were found quoting, "Victory for Democracy".

While the CJI also focused on the misuse of PIL, in another case (Dr Rajneesh Singh v Union of India and Ors), the Allahabad High Court dismissed a plea seeking the opening of certain rooms of the Taj Mahal, thereby putting to rest the alleged history of the monument. The Court thereby asked the petitioner to not to make mockery of PIL and thus stated that such debates regarding the alleged history of the monument are for drawing room and not for court rooms. The Court, with its decision, ensured that there is no misuse of PIL which are meant for greater benefit of the mass and decisions as such can further elevate the prestige and reputation of the Indian Judiciary system in the eyes of the people. In fact, in the month of January this year itself, the Gauhati High Court too asked the Government of Assam to file a detailed affidavit on the police encounters that have taken place to ensure that the things remain clear and transparent. Therefore, things as such actually are required and healthy for a vibrant democracy.

The concept of law is a dynamic concept and it needs to change time and gain to suit and adapt to changes that are constantly taking place. The role of Judiciary actually remains crucial not only for democracy but for protecting the rights of the people. It is the Judiciary actually that should keep an eye on those governing and those who are being governed. But for a country like India burdened with diverse issues, the Judiciary always needs to be proactive and as such if the Indian Judiciary can maintain its independent status like in the recent times, then it can definitely play a major role in upholding the spirits of democracy.

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