The constitutional Courts, especially the High Courts exercise supervisory, and administrative authority over the subordinate judiciary. This authority is vested upon the High Courts through Article 227 of the Constitution of India. The High Court judges frame rules, inspect courts, judicial records, conduct financial audits, and are authorized to take disciplinary action against the Judges of the subordinate Judiciary.
Judiciary, no matter at which level, should not only uphold Law and deliver justice, but should also be seen to do so.
In the last three decades the manner in which this authority has been exercised by the High Court Judges is astonishing. Not only has the power been abused, but in a few cases the sanctity of the lower courts has been undermined to an extent that they have become redundant. Filing an application or a case before them is a mere formality before an appeal can be preferred before the High Court. The subordinate Judges act as employees, and are afraid to exercise their judicial authority vested in them by the law due to various reasons. It would not be out of place to state that over the years the High Court Judges have made the subordinate judiciary into government babus carrying out their judicial functions mechanically. It is a common sight to see the subordinate judges standing with a bouquet outside the Circuit House lat the cost of judicial functions to mark their presence on the arrival of the concerned High Court Judge. Then during the High Court Judge’s stay the flattering continues through giving gifts, arranging dinners at expensive places, and sometimes to an extent that the subordinate Judges can be seen carrying shopping bags for the High Court Judge’s spouse. This is all to ensure that the ACRs are not affected and promotions are ensured. Now with the recent decision of the Supreme Court allowing the High Court to suo moto question Sessions Judge’s unjustified order has made this situation more complex while undermining the statutory appeal.
The senior High Court Judges are vested with the authority to regularly visit different districts in the territorial jurisdiction of the High Court, as allocated by the Chief Justice. This is done to ensure the smooth functioning of the subordinate courts throughout the state. But, as a trend the High Court Judges prefer getting their native districts, or districts in which they have vested interests allocated to them for inspection. This may be due to the fact that the Judge may want to patronize people close to him by influencing the subordinate judges, or ensure special favors to his sons, daughters, nieces, nephews or other close family members who may be practicing before the courts in those districts. As the High Court Judges write the annual confidential reports of the subordinate Judges they are in a position to influence their decisions. It may also be true that corruption initiates at this level itself.
My above mentioned assertions, to some people might seem exaggeration, but let me narrate a few trends through which the dots can be connected. In many criminal cases, especially pertaining to anticipatory bail involving offenses under § 498A or 304B the sessions court never grant bails even in prima facie cases where the case for bail is made out. The denial is due to the threat, that the ACR might be spoilt, so it is deemed better to deny bail rather than apply judicial mind in reaching the conclusion. This threat due to which mechanical working of the Judges has started will very soon decay the whole system, and ultimately result in flooding High Courts with cases.
In a few instances a genuine case is deliberately decided erroneously by the subordinate court which then lands up in the office of a family member of a Judge to be appealed before the High Court. It is a system which is set in a fashion that it rarely arouses suspicion, and money changes hand without any fingers being pointed towards it. There have been numerous reports, news articles published recently showing how the children and family members of the sitting High Court Judges start earning a fortune within months after their Father is elevated as a High Court Judge.
Sometimes the system seems so paralyzed that we hardly feel like reviving it. Judiciary once considered to be the guardian of the democracy now stinks due to corruption in every nook and corner. As the fish rots from the head down, it is the constitutional courts to blame for the ineffectiveness of the subordinate courts. The mandatory things that should be looked into during inspection are ignored and overlooked. Issues like the manner in which statements are recorded, the library facilities, computerization, infrastructure, quality of judicial application of mind etc. all seem to be trivial issues that lie at the bottom of the priority list of the Judges carrying out the inspection.
What does this mean to a common man?
In majority of the cases a common man or the “little man” as referred by the Supreme Court first encounters the subordinate courts for justice. The lack of information, corruption, poor quality of legal services both at the bar and the bench, unsympathetic attitude clubbed with corruption and hidden internal arrangements kills the faith of this little man in the judiciary at the very first level. No wonder the appeals from the lower courts has increased many folds in the last few years. The constitutional courts were established with a vision that they would deal with complex questions of law, and its interpretation now act as trial courts where every litigant wants his case to land so that he has some chances of getting justice.
The cleanup is essential, but before that understanding the problem is more vital. One way could be election of Judges at all levels through direct voting in the respective places where the courts exercise their jurisdiction. Another method could be to reinstate the transfer of High Court Judges to other states as soon as they are appointed. No mater what what is adopted, it needs to be done soon, or else, only the skeleton of the fish that has started rotting will be seen floating.