It is trite to observe that independence of judiciary at all levels is a sine qua non for dispensation of justice to the common man. Perhaps it is needed most at the district and grassroot level judiciary for it is the first point where machinery of justice delivery system is put in motion. Efforts for liberating the district and grass root level judiciary from the gripping fear of reprisal have to be meaningful if the judicial system has to truly operate and deliver justice.
In this regard, the long-awaited bold initiative has been ushered in by our illustrious Chief Justice of India, Dr. D. Y. Chandarchudh. On 19th November 2022, speaking at his felicitation event organized by the Bar Council of India, he highlighted such gripping fears amongst the district and grass-root judges which interferes in discharge of their functions particularly, while granting nay refusing to grant bail in cases involving heinous crimes. He went on to elaborate how most fundamental right of personal liberty enshrined in Article 21 of the Constitution of India is shelved by such like gripping fears. He stated that “the way we look at the District Judiciary affects deeply our own personal liberty as citizens. If District Judges do not have the confidence in their own abilities, in their own respect, in the hierarchical system, how we expect a District Judge to grant bail in an important case”. He further highlighted that “the reason why the higher judiciary is being flooded with bail application is because of the reluctance of the grass-roots to grant bail and why are the judges at the grass roots reluctant to grant bail not because they don’t have the ability, not because the judges at the grass roots don’t understand the crime. They probably understand the crime better than manyof the higher court judges because they know what crime is there in the grass roots in the districts but, there is sense of fear that if I grant bail, will somebody target me tomorrow on the ground that I granted bail in a heinous case? This sense of fear nobody talks about but, we must confront because unless we do that, we are going to render our district courts toothless and our higher courts dysfunctional.”
It is probably first time that such an initiative at this level has been taken after enforcement of our Constitution. It needs self-introspection by all concerned so that these fears are completely shelved. One principle that has stood the test of time is that a judicial order cannot be the basis for initiation of disciplinary action ordinarily and the fear that an officer would suffer in promotion or elevation as a Judge of the High Court can be overcome.
In the pre-constitution era, the subordinate and district judiciary used to be under the complete control of the executive. It was rescued from the clutches of the executive in order to instill the feeling of independent functioning. Let me turn to the classical work of B. Shivarao, framing of India’s constitution – A study, Chapter 17, 5th Volume, pages 504 to 506. While tracing the evolution and development of judicial system in India the constitutional master stated:
“The organization of judiciary in India at the time of framing of our Constitution was beset with numerous anomalies. The Indian Statutory (Simon) Commission in 1930 and the Joint Select Committee on Indian Constitutional reform in 1934 had emphasized the importance of an independent, competent and fair-minded judiciary, which should enjoy the confidence of the people. However, it remained doubtful whether the aforesaid objectives could be achieved and fructified although their significance was never in doubt. The basic reason for strengthening the judicial institution at the district and sub divisional level was, and still remains valid, that it is the judiciary at that level which comes into direct contact with the people. For augmenting people’s faith and confidence in the judiciary, it was felt necessary that independence of judiciary be ensured and placed beyond any shadow of doubt.
In the initial stages of Constitution making, no specific attention was paid to the Subordinate judiciary. It is extremely surprising to note that there was no provision in the Draft Constitution prepared by the Constitutional Adviser in 1947 nor any provision was made by the Drafting Committee in 1948. This glaring omission was prominently highlighted by the Conference of the Judges of the Federal Court and the Chief Justices of High Courts held in March 1948. Their memorandum revelas the ugly face when it observed: “So long as the subordinate judiciary, including the district judges, have to depend on the provincial executive for their appointment, posting, promotion and leave, they cannot remain entirely free from the influence of members of the party in power and cannot be expected to act impartially and independently in the discharge of their duties. It is therefore recommended that provision be made placing exclusively in the hands of the High Courts the power of appointment and dismissal, posting, promotion and grant of leave in respect of the entire subordinate judiciary including the district judges.”
The seminal suggestions made at the Judges’ Conference prompted the Drafting Committee to consider and accept their recommendations for assimilating the two branches – both civil and criminal and placing them equally under the control of the High Court.
The liberation of judiciary at the sub divisional level and the district level from the control of its executive masters, who in turn are influenced by political bosses, was achieved by through the continual process of discussion and dialogue by the judiciary itself. What eventually emerges is that after the enforcement of our Constitution on January 26, 1950, the judiciary at district level and sub divisional level is controlled only by the High Court in every conceivable aspect.
Therefore, in their work and conduct, they are supposed to be completely independent from any influence of the executive or the district administration.
If the judiciary has been able to liberate itself from the pernicious interference of the then unprincipled class of executive by persuading the Constituent Assembly, which led to the introduction of Article 223 to Article 237 then is it not possible to salvage the District Court judiciary from its own scare? The presence of this unfounded and unsubstantiated fear of reprisal must be shunned. An affirmative action needs to be initiated so as to assure the District judiciary to work without fear or favour. A fine balancing would be imperative.
Justice M M Kumar, Former Chief Justice Jammu Kashmir and Founder President, NCLT.