Insufficient Judicial Process and PIL
There is a tendency on the part of public interest petitioners to assume that every good thing which society should aspire to achieve can be achieved through the instrumentality of the court. The judicial process provides remedies for constitutional or legal infractions. Public interest litigation allows a relaxation of the strict rules of locus standi. However, the court must necessarily abide the parameters which govern a nuanced exercise of judicial power. Hence, where an effort is made to bring issues of governance before the court, the basic touch stone on which the invocation of jurisdiction must rest is whether the issue can be addressed within the framework of law or the Constitution. Matters of policy are entrusted to the executive arm of the State. The court is concerned with the preservation of the rule of law.
It is unrealistic for the court to assume that it can provide solutions to vexed issues which involve drawing balances between conflicting dimensions that travel beyond the legal plane. Courts are concerned with issues of constitutionality and legality. It is difficult to perceive how matters to which solutions may traverse the fields of ideology, social theory, policy making and experimentation can be regulated by this court such as by issuing a mandamus to enforce a scheme of instruction in a particular subject in school education. Should a subject be taught at all? Should a set of values or a line of enquiry and knowledge be incorporated as a separate subject of discourse in an educational system? Would a horizontal integration of a given set of values across existing subjects better achieve a desirable result? Is it at all desirable to impose another subject of study upon the already burdened school curriculum?
These are vexed issues to which more than one solution may appear just. That is exactly the reason why a resolution of such matters must rest with those who have the responsibility to teach and govern over matters of education. Every good that is perceived to be in the interest of society cannot be mandated by the court. Nor is the judicial process an answer to every social ill which a public interest petitioner perceives. A matter such as the present to which a solution does not rest in a legal or constitutional framework is incapable of being dealt with in terms of judicially manageable standards.[(2016) 8 SCC 253,(2016) AIR(SC) 3456]
Delays become a part of the judicial process
With the gradual growth in the number of laws and number of litigations, without proportionate increase in the number of Courts, a stage has reached where the Courts are choked with cases. Delay has now virtually become a part of the judicial process. It has became quite common for civil disputes, in particular litigations involving partitions, evictions, and specific performance to be fought for several decades, through a hierarchy of Courts. In commercial litigation, delay can destroy businesses. In family disputes, delay can destroy physical and mental health turning litigants into nervous wrecks. Long pendency leads to frustration and desperation. The delay, uncertainty about the final outcome, changes in laws during the pendency of the cases, and the expenditure of time, energy and money during the period of litigation, take their toll on the patience of litigants and erode the confidence in the rule of law and the justice delivery system. When memories of litigation tend to be unpleasant and harsh, there is a tendency on the part of the litigant to avoid approaching the Courts, for relief, but seek remedy outside the legal framework. A landlord who wants possession from a tenant, knowing that litigation may take years, thinks of engaging the services of musclemen to evict the tenant. It is not uncommon for moneylenders, and even Banks, to entrust debt collection to dubious agencies, to coerce and persuade debtors, not always by lawful means, to recover the amount so due. Though well-aware that such methods are illegal, costly and risky, more and more persons are tempted to have recourse to illegal methods, thinking that results are likely to be swift, decisive and effective, without realising their pitfalls and the effect on orderly society. In this background, it became necessary to seriously consider the need to encourage alternative dispute resolution methods. One of the objects of the Legal Services Authorities Act, 1987 is to reduce litigation in Courts and at the same time give speedy and cost-effective justice, by means of conciliation. Encouraging litigants to sort out their disputes and differences by a lawful means, that is by conciliation, with proper legal assistance, achieves the twin objects of giving relief to litigants and in building a law abiding and orderly society. It also incidentally helps the Bar, as litigants will more and more rely on Advocates, for advice, legal documentation and dispute resolution. There is therefore a need for a constant effort on the part of the Bar and the Bench to make litigation, to the extent possible, pleasant, comfortable, short and cheap.[H.V. VENKATESH Vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS-KARNATAKA HIGH COURT-(2002) 2 ACC 253 : (2002) ILR(Karnataka) 3666]
If anything reflects adversely on the efficaciousness of Indian judicial process, it is the obstruction created in the way of the aggrieved litigant from taking his grievances to the Appellate Court, by denying or unduly delaying the supply of copies of the judgments, orders and decrees to him. It is bad enough to delay the supply of copies of judicial orders and decrees to those whose rights are determined thereby, but to do so in the case of those who want to go up on appeal or revision is absolutely indefensible in our set-up. Such a state of affairs must tend to shake the confidence and faith of the seekers of justice in the efficaciousness of our judicial process which may, in the ultimate analysis, tend to minimise the people’s faith in the principles of justice and fair-play enshrined in our Constitution. It is a duty of every citizen in this, Republic, and much more so of those in power, to see that grounds for such tendencies are removed to say effectively and without delay. [BHIKU Vs. PRITHI AND ANOTHER — DELHI HIGH COURT-(1967) 3 DLT 65]
Media Reporting influences Judicial process
Newspaper cuttings, speeches made in Conferences or Seminars are not meant to be used in judgments in support of judicial conclusions. A litigant expects his case to be decided on materials in the case and on relevant legal provisions, on the subject. Speeches and personal views of Judges should not influence this process. To give expressions to personal views and impression may vitiate the logic and judicial process of reasoning; they should be avoided. By making such observations Courts are exposing themselves to the risk of the criticism that the ‘observations’ and not the ‘material facts’ have influenced their conclusions. On the facts of this case, I am convinced that the observations quoted above, have not weighed with the Learned Judge.[VENKATASWAMY AND OTHERS Vs. NINGAMMA AND ANOTHER-KARNATAKA HIGH COURT-(1985) ILR(Karnataka) 918
Unreasoned non-transparent Order
When an adjudicator is obliged to give his reasons for conclusions, it will make it necessary for him to consider the matter carefully. The compulsion to give reasons introduces clarity in the order and minimizes chances of irrelevant considerations from entering a decisional process. In fact, recording of reasons ensures that the authority has applied its mind to the case and the reasons that compelled the authority to take a decision in question are germane to the contents and scope of power vested in the authority. Therefore, in the absence of a speaking order, Courts would not be able to understand the application of mind to the facts and issues raised in the case. In the case of The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another (AIR 1976 SC 1785), it is reiterated that reasons to be given in support of an order is a basic principle of natural justice, which must inform not only a judicial process but also a quasi judicial process. In this context, it is also relevant to note that the appellate authority must give reasons where it is reversing the order of the lower authority. In the case of Commissioner of Income Tax, Bombay Vs. Walchand and Co. Private Ltd (AIR 1967 SC 1435)., the Income Tax Appellate Authority did not agree with the view of the income tax officer, but without assigning any reasons the Tribunal allowed the claims of the assessee partially. It was held that the Tribunal must record its reasons in support of its claims. In fact, even when the appellate authority affirmed a decision of a lower body, it should give its own reasons and atleast, it, should be indicated clearly by the appellate authority that it is accepting the reasons given by the lower authority. In the case of Travancore Rayon Ltd. Vs. Union of India (UOI), , which is a case regarding assessment of Excise Duty when the Central Government in exercise of its revisional powers had affirmed the collectors decision by a non-speaking order, the Apex Court stressed that the appellate body should give its own reasons even when it was affirming the order of a lower body. In fact, in a hierarchical order, as in the case of assessment of customs duty, each authority should pass a speaking order. Therefore, giving of reasons by an adjudicating body goes to the every root of the process of decision-making or adjudication and therefore, it is not just a formal requirement but indicates that the adjudicatory body has applied its own mind to the merits of the case and also to avoid any doubt as to any perfunctory approach.