Do We Have Judiciary Worth The Name?
collected from silicon India
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We always give great importance to this institute in our democratic system. This system in the government at times we call a veritable God of Democracy. This Judiciary system designed with a purpose to give justice against any wrong that may happen to any member by any other member or institute in the society. In this article I intend to show my readers how our judiciary system has failed. Why failed and how to remedy this problem.
In earlier times, what religion was doing, in later period governments of kings took over. When this happened, priests were replaced by judiciary appointed by the king. We see all religions have their code of conduct and suitable guidance given to help the faithful how to behave in society so that life of all remains at ease. There we also see that some punishments recommended for those who shall disobey the code. All these codes were developed by the wise or better say smart people who designed that religion. As time changed we again see that priest of later period have made changes in the various terms of this code to accommodate changes in the time. However, in some religions such changes are not allowed. Those rigid religions were called dogmatic religions. In them any change they considered as sacrilege. In Islam we see this while in other religions dogmatism does not appear to be so rigid. In Hinduism we see no dogmatism. Even though, in Brahmanism some amount of dogmatism we see. Kings always respected religions practiced by the subject and in turn they also showed obedience to those popular religions. In spite of this they introduced certain laws to regulate things according to their requirements.
Over the period many religions came up and we see a society of people where more than one religion was observed by different folks in that society. When such situation developed there the need to regularize law code became necessary. In this situation king’s law code superseded all religious codes and became commonly applicable to all irrespective of what religion they practiced. This law code diplomats of the king prepared, taking into consideration the needs of the state. This law code is generally called secular law code because this law code has no binding with any or all religions.
Here, in secular law code, the judges replaced priests. As this happened religion became secondary to King’s Law. A tussle between the priests and king became evident. We see several examples of these feuds. In many places kings have banned religions those refused to abide by his law code. Kings having strength of army to support it; always over powered the priests. Here we must note that both Priests and Kings refer to God while taking oath of truthfulness. Both claim that they are representing God. In that sense they become competitors for that claim. In history we always see they prefer to replace the other whenever possible. The god of religion was condemned by king as the proprietary god while kings claim to have vouchsafed the universal God and on that the tussle in them continued.
In secular law, two elements developed to make that law function properly. They are a judge, to hear the pleadings and give verdict, the other is pleader. Two pleaders to explain position of the two parties, the plaintiff on one side and convict or accused on the other side. The pleaders learn the provisions of law and plead their sides and show how the case is worth the trial and the pleader of the convict tries to show through his argument how his client is innocent and so deserves the justice. After both sides explain their respective points of arguments the judge with help of juries decides about the verdict and finally verdict they deliver.
This process implies many under currents involved in the process of law deliverance. Pleaders charge their clients; therefore, the process of law becomes a profession. When money begins to have place in the process, business principles begin to function in that activity. Profit element becomes important and by that corruption turn out to be inevitable.
Today we see judiciary has become a place of business more than anywhere else. Money corrupts every thing. More money corrupts more and the process of justice becomes a hot bed for all corrupt activities.
Where corruption holds place we should see to understand this deterioration of law. Pleading is based on three basic elements of law process. They are Proof, Eyewitness and Evidence (indirect proof). Proof is direct evidence. Pleader of the convict side often endeavors to pollute all these three to show that they are not valid enough to make the case of the plaintiff strong. There many methods they use to achieve that. All these things involve corruption. Purchasing witness, threatening, misinterpreting arguments, destroying evidence and proofs and many more tactics are in use. Though not all pleaders indulge in that, as I said, money corrupts most and more money corrupts more, these malpractices are common in our judiciary system today. Many pleaders boastfully tell that they are experts in such malpractices and on that attract many cases to them.
If judges are corrupt they often use tactics such as delay, postponement by giving dates after dates for long period. This demoralizes the plaintiff morally and financially. Some prefer to transfer the suit to other Court and avoid involvement. An alliance between the pleader of convict and judge is possible when judge is friend of the pleader. Special relations count more than the arguments in many law suits. For a truly impartial judge these things do not matter and the process of justice follows strictly. One important point some advocates showed me that in our country there is no real verdict; what the judge deliver is actually an analysis of the presented proofs, evidences and reports of witness. Our judiciary system does not give real justice, according to them. The process of law making also came under hammer during the discussion. All laws are specifically designed with certain loopholes so that smart pleader uses them to save his client. Providing these loopholes is an important element in the process of law designing, they told me. Most law suits will complete quickly if they do not have loopholes. Otherwise a law is basically something that common sense accepts. Today we see that some laws are something other than common sense. They are designed to serve some vested interest. That makes law designing pretty complicated process.
During British period a system of appointing Jury was practiced. This made process of justice more corruption proof but after we got freedom the later governments removed this practice of appointing Juries and the verdict became sole responsibility of the judge. This change some advocates suggest is also responsible for rise in corruption in the judiciary. There are other objections; neither plaintiff nor convict know the quality of the judge, who hears the case. To make things transparent a bio-data of Judge should be available to these parties. We have rules for the bank to 'know your customer (kyc)' but we do not have 'know your judge (kyj)' facility. Everything is taken for granted and this method is definitely not suitable in democracy. People have right to know their judge. If banks have a rule by that they demand to know their costumer (kyc). Similarly, know your judge (kyj) is essential, so that both plaintiff and the convict shall know who is deciding their fate. Some senior advocates say that most judges appointed are from the unsuccessful advocates or they are promoted from law college lecturer or professor to judge. This affects quality of judgment. Advocates themselves are from second quality students since most first quality students opt for medicine or engineering. These things have reduced quality of our judiciary considerably. During British period the best students opted for Law graduation. As in those days medicine and engineering faculties were not available. Bright students selected to be either advocates or chartered accountants. We have a course to train judges but some experienced advocates pointed out to me that these courses are nothing but eyewash. Such courses cannot produce good judges. At present our laws are imperial base and we as yet, do not have truly democratic base laws. This makes a big difference. Imperial law presumes that the judge is obliging the parties by judgment while in democratic law judge is a public servant and performs as a public servant. This air of obliging makes the process of law corrupt. We should change all our laws to be truly democratic and the imperialistic arrogance removed completely. The accepted mannerism at the Courts is also imperialistic that must change to democratic. Writer of our Constitution should have looked into these matters but unfortunately that did not happen.
Money pollutes the process of law and purity of law lost permanently. Law becomes a commodity for sell and it is sold at high stakes in big lawsuits. Judges are sold for a price, almost anything they can do with the strength of money and they actually do it to save their skin. For most judges and advocates money making is the sole motive and their interest in true justice is often doubtful.
Corruption is often attributed to the people who have no proper upbringing. If we have judges and pleaders, from such low background, corruption prospers with speed. People proud of their values (this, due to proper upbringing) are not generally involved in corruption. Those joining the profession of judiciary for money are also likely to indulge in corruption, irrespective of the upbringing. Most persons engaged in judiciary activities are there for the money making and so we see corruption in our judiciary growing. While appointing judges and also giving right to plead in the Court, care should be taken to avoid wrong persons but this is not as easy as said. There is more in this topic to read but that I shall bring later.http://blogs.siliconindia.com/kothare/Corruption/Do-we-have-judiciary-worth-the-name-bid-uP2LTfKk38877575.html