Tag: LAW SYSTEM

live-In Relationships Illegal or not?

Denial of granting protection to a couple who are in a live-in relationship only because it is socially and morally unacceptable. is it justified on the part of Punjab and Haryana High Court? The boy and the girl had been in a living relationship that goes against the girl’s parents will.

The couple asked for protection from the court for their life and liberty after being frightened by their families. Unfortunately, they were denied protection. the denial of their right under Article 21, in this case, is inappropriate. The judgment by the court seizes their identity as per Article 21 as well as the right to “life or liberty”.Article 21 declares that every individual has the right to their life or personal liberty. Therefore to secure their right the couple moved before the Punjab and Haryana High Court for the protection under Article 21, which is dismissed by the court on the ground of social and moral unacceptability. while rejecting the petition, the high court interpreted that the term “person” means those who are recognized by law as being capable of having legal rights and being bound by legal duties, not a couple. After getting married, a man and woman are considered capable of having legal rights and duties known as rights in the institution of marriage. But only when the marriage has been done as per their respective marriage laws in force in India.

The denial of the right to life and liberty is completely inappropriate in the law. Since no law in India criminalizes pre-marriage, it would be more like legislation by the judiciary to hold pre-marriage illegal based on social morals. There is no force of law in an opinion that has been embraced by the conservative majoritarian masses of India who find it illegitimate. The decision rendered by the Punjab and Haryana High court erred in ascertaining the aforesaid point. In place of assistance, the couple became the subject of discrimination held by the conservative majoritarian masses.

Justice delayed is Justice denied

“Justice delayed is justice denied” is a legal maxim. It means that if legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.Today, it can take nearly 20 years if a case goes all the way from the subordinate court to the high court and then the Supreme Court. Twenty years means multiple generations of litigants, enormous cost and frustration — a case taking this long to be resolved is symptomatic of an inefficient and ineffective judicial system; any ‘justice’ delivered after a span of 20 years would be bereft of its true meaning. There are many problems that this process creates. First, judges, particularly those in the superior courts are dealing with cases from the previous decade and not today’s pressing issues. Second, the judiciary and the legal system at large, is inherently favouring the illegal actions of one party at the cost of violating the rights of the other. Further, a prolonged legal battle will have the effect of encouraging such illegal actions not only by the parties involved but across society, which in the long term lead to an erosion in the faith of people to get timely justice.

Justice is one of civilisation’s foundational goals. It is therefore imperative for the judiciary to perform its duty properly for any society to continue its pursuit of peace, harmony and progress. Unfortunately, the Indian judiciary, despite its many successes, suffers from severe structural problems that prevent it from functioning properly. The judiciary’s travails, specifically those relating to delays and backlog are well documented and don’t need repetition. However, it is only in the last few years that these structural problems have been better understood empirically thanks to the availability of better data.

It is now possible to assess, in a fairly detailed manner, the judiciary on parameters such as budgets, human resources, workload, diversity, infrastructure, and trends over the years. We can also accurately diagnose the pendency and backlog problem not only at district and taluka level but also at court complex levels.

We know, for example, that while pendency is a nationwide problem, it varies vastly from state to state, with the average pendency being anywhere in the range of two years to nine years in the district judiciary, as the India Justice Report 2019 reveals. We need to work on the problems that lead to delay on a daily basis, by increasing certainty of outcome in each hearing and avoiding burdening a judge in a manner that encourages adjournments. On an average, a district judge has about 50-60 cases listed before him each day. It is impossible to meaningfully hear such a high number of matters, and therefore at least 40 of these cases will be adjourned by the judge without any significant movement. This happens every day in each court across the country throughout the year. Naturally, there will be delay and backlogs at the end of the year. It is these daily problems that magnify over time and transform into structural problems crippling the functioning of the institution.

From a larger perspective, judicial delays also lead to uncertainty regarding laws and their application — the ongoing case in the Supreme Court regarding the application of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 and the determination of compensation thereunder has practically halted land acquisition litigation in the country. Cases related to land acquisition in the subordinate courts remain pending for six years on average and are a category of cases that take the most time to be resolved in court.

How then must the judiciary proceed to ameliorate the effects of delay? Foremost would be to efficiently manage judicial time. Listing an optimal number of cases to be heard on a daily basis is vital to ensuring that judicial time is not spent on unnecessary adjournments and that lawyers are prepared for their cases knowing that they will be heard with certainty. Courts must work towards better case management frameworks to ensure that cases are scientifically listed taking into consideration the stage of the cases and the amount of time they would require to be heard. The Delhi high court recently took the lead on this through a pilot project in the district judiciary; the results of the project show that it is possible to decide cases in a short time frame with better case and judicial time management.

A critical reform required is the need to appoint a full-time judicial administration cadre. Internationally, judicial administration is seen as being ancillary to the work of judges and is carried out by dedicated and specialised personnel to help judges efficiently perform their judicial duties. The establishment of a dedicated and trained cadre to provide support to the judiciary through case management, assistance with budgeting, handling administrative tasks, and ensuring maintenance of court infrastructure will go a long way in enabling the judiciary to focus on the administration of justice. Currently, judicial administration is essentially managed by judges themselves. This is not only unsustainable, but also unfair to judges whose primary skill and responsibility is to decide cases.

The most critical mantra is to embrace technology with vigour. Many of our court rules and processes were conceived of in the 19th century and need a thorough overhaul as they have become a hindrance to the delivery of justice. We should change these processes to meet today’s societal realities, particularly to harness technology in the better delivery of justice.

THE LEGAL HISTORY OF MADRAS

The judicial system in madras occurs in three stages where the British tried their best to administer justice in the town. The company first formed a judicial structure in the towns to help the Englishmen living in the town and to secure justice for them. But slowly the company acquired a large area where they could not neglect the indigenous population anymore thus this lead to the development of a through judicial systems. Madras was previously known as a Madraspatnam which was a small village. Francis Day was sent south by the East India Company to acquire land due to the shortage of cotton in the north and to ease the trade. Francis Day procured a land grant for the area of Madraspatnam after negotiations with the Raja of Chandragiri to build a factory in 1639. The land was used to build the Fort of St George. The Raja had also granted to the Company full power. the charter of 1660, This allows the company to form laws in accordance to the English laws for its government. The charter gave the Company power to make laws for its government and for that of the factors, masters and mariners employed in voyages, provided such laws were not repugnant to the laws of England. The town of Madraspatnam was divided into white town and black town.

The Town of Madras was subordinate to the town of Surat. The administrative head on the town was called as an “Agent “. The agent was a subordinate to the president of the factory in Surat. He was supposed to administer justice in the town. The serious offenders and the cases should be consulted by the company authorities in England. But there were defects the judicial power of the agent and the council was vague and indefinite and many delays also, they did not have any. The black town had a different system of administration of justice. The old tradition of the judicial system was allowed to continue where the village headman was to judge all cases of the village. The village headman was called as “Adigar”; the court was called as the Choultry court. Then the Choultry court became a court where petty cases would be decided. The most cases were decided by the agent and his council or the raja. There is no conclusive report where these cases were held due to lack of reports. But the existing reports show that there wasn’t a clear system that was followed. The officers in the Choultry court were not similar to the laws of the natives. This shows that the judicial system was rudimentary.

Chapter 1660, This empowered the governor and his council to authorize or give death penalties and death sentences for capital offences. The charter vested more powers in the Governor-General and his council which gave them extensive judicial powers. The agent and the council uncertain about their jurisdiction and their judicial duties deferred the case to the company authorities in England. The company made the town of Madras a presidency town. This gave extensive judicial power to the agent and his council who were elevated to the position of the governor-general and his council. The court of judicature, Steynsham Master who was the Governor of Madras reorganize the Choultry Court and established a court of judicature in 1678 for the trial of civil and criminal cases by jury deriving authority from the charter of 1661 which vested all judicial powers to the governor-general and his council. The court would take in appeals by the Choultry courts. The cases in the court were decided as per the English laws with the help of jury of 12 men. The Governor and Council were to have original jurisdiction and appellate jurisdiction in cases decided by, the Choultry Court. Thus a well-administered judicial system was implemented. This established two courts and well-understood jurisdiction of cases. There were pitfalls in this system too. The officers who sat at the court were not lawyers or familiar with the laws of the native land. The officers would not dispense justice at a higher level as they were not lawyers. The judgment of the cases was subpar but this was a step ahead from the previous court system. This much-needed improvement from the elementary implementation of justice that was previously administered in the town. The lack of lawyers was apparent.

Admiralty court– Under the provisions of the Charter of 1683 a new court was established in Madras on 10 July 1686. It was called the admiralty court. The court was to decide cases according to the rules of equity and a good conscience and the laws and customs of merchants. It has to have the power to hear and determine all cases, mercantile and maritime in nature, concerning persons within the charter limits of the Company; all cases of trespasses, injuries and wrongs, done or committed on the high seas, or within the charter limits; cases of forfeitures and seizures of ships or goods. The court practised English civil law instead of the common law in England as the jurisdiction of the court was extended to ships from different countries. The civil law that’s was used was an amalgamation of the maritime customary laws. The court in 1687 secured services of an English professional lawyer, Sir John Briggs who would preside over the court as written in the charter. The presence of a lawyer decreased the need for the governor-general and his council to sit at the court. Thus the role of the governor-general and his council in the court declined. The court of admiralty exercised wide jurisdiction as opposed to what was stated in the charter. The establishment of the Admiralty court was a landmark in the judicial history of Madras as for the first time a professional lawyer was to administer justice and the executive gave up judicial functions in the admiralty court.

Mayor’s court– It was common and custom in England that the judicial powers would be deferred to Municipal Corporation of the city, this was seen in London. The British thought to apply the same administration in Madras. The corporation of Madras consisted of a mayor, 12 Alderman and 60 Burgesses. Every year the mayor was selected by the Alderman. The tenure was for life or the period of stay in Madras. The first mayor and the 12 Alderman were already selected by the charter itself. The Burgesses were to be selected by the Mayor and the alderman. The court was held every fortnight and the quorum was the Mayor and two aldermen. There was an existence of a jury who convened to judge criminal cases. The Mayor’s Court dispensed justice not according to any fixed law, but as its Charter laid down.

The judicial administration in madras during 1639-1726 was elementary. Justice was administered by non-lawyers. Their judgment was subpar and at their discretion. They had no judicial training and very much vested in the executive decisions of the company. When the company first procured Madras their focal point was still trading. Thus the earlier stages of the judicial system in Madras were rudimentary and no proper demarcation of jurisdiction. The officers were not familiar with the Hindu laws which were applied to the Hindu native and the Muslim laws that were applied to the Muslim natives, this lead to major inconsistent judgment. The situation changed after 1687 when there was an introduction of some sort of structure to the judicial system. The charter of 1688 showed signs of freedom of the judiciary from the executive powers but installation of the Mayor’s court changed that. Yet, the judicial system introduced a democratic structure to India where the autocratic rule was used.