Court must go on ………

Indiais a country where it is considered a matter of pride and glory to demand for laws, acts every now and then. Whenever any problem becomes an issue of discussion ,some points are searched and there is an excuse- we do not have law to handle the situation .Just the next day ,hundred of proposals shall come from many corners for enactment of new  law, adding credit to their account for being so prompt and vigilant on the current issues

But who cares to implement the laws and rules already existing ,having much more force to handle many situations. There has to be an intention to implement the same which lacks on every step in the functioning of bureaucrats .On the other hand debate continues  as to whether courts should interfere in the functioning of executive body or not .

The real situation is, Courts go on making loud pronouncements and on the parallel, executives  go on defaulting, functioning against the rule and law .Out of hindered defaults ten will go to the  court and out of ten, three or four shall be compromised ,rest will die their own death

Executives must function independent from judiciary ,this has been made clear by the Apex court through number of pronouncements.In fact  courts do not want to do the job of executives. But why executive body is not functioning ,why there are plenty of cases in service matters pending before the courts .Why complaints against statutory bodies & Government  are increasing day by day  A bench comprising Justice G S Singhvi and A K Ganguly wanted to know from additional solicitor general  ,about the money spent by the government on cases related to service matters which the court felt should have been settled in the secretariats This was the case where Additional solicitor general was defending the governments decision of  terminating  the services of a woman doctor who went on leave to attend to her ailing mother

‘All these matters which should have been decided in the secretariat land up here in SC .From recruitment to retirement ,why should the court be deciding every thing related to service matters ‘ asks Supreme court exasperated by the flood of litigations related to government officials  Because of defaults on the part of executives in following  their own rules ,aggrieved persons  have  to come every now and then to the court for getting the law interpreted

On the other hand if you have a vested interest ,how quickly and fastly decisions are taken., see the example of wages of MP;s which could be  decided without parliamentary session ,got signed by all –ruling party as well as opposition party, without any debate.File moves  from hand to hand and it becomes law ,public comes to know through media only .

A good sign of confession,accepting loudly in the parliament session on 14th Feb 2011 by a Member of Parliament that it is the failure of the executive body to take appropriate timely action which gives ground to the judiciary  for over activism.,if you chose to ignore constitutional norms that results in questioning SC your decisions.While such confession is welcomed ,some practical improvement is also required ,let that day  come

There is a lot of hue and cry –long pendency of cases every where ,different modes and methods are being adopted –arbitration ,mediation counseling ,tribunals and forums, lok adalat and legal aid authority etc etc.But see the pity condition of consumer forums which were expected to work under summery procedure and to decide the matters within ninty days .There is a provision of three members for the purpose,if one member is on leave ,the court must function by two members and work should not suffer .After amendment 2002 and even when  this amendment was in the process,Supreme court   gave direction to the Government to henceforth take care that proper infrastructure is provided to the forums and vacancies in the forums are filled well before time vide their judgement in the matter of Dr J J Murchant V Shrinath Chaturvedi in2002 [SC] page 635

The relevant portion from the judgement is reproduced  hereunder:

‘36. However , apart from the contemplated legislative action,it is expected that the Govt.would also take appropriate steps in providing proper infrastructure so that the act is properly implemented and the legislative purpose of providing alternative ,efficacious,speedy inexpensive  remedy to the consumers is not defeated or frustrated.

37. ……..(a)By exercise of administrative control ,it can be seen that a competent persons are appointed as members on all levels so that there may not be any delay in composition of forum or commission for want of members.

Even the central ministry also vide their circular dt 20th June 2005 suggested at para (!) of the circular to maintain the forums and initiate the proceedings for filling the vacant post and preparing the panel  well before lime .

But the present situation of these consumer forums is not only against the interest of consumers but also is in  inconsistency of the law laid down by the Honourable Supreme court No order can be passed by the forums as provided in the act unless signed by the president

“Sub- Section[2] of section 14 provides

“Every proceeding referred to in sub-section [1] shall be conducted by the President of the District Forum and at least one member sitting thereof together.”

Sub-Section [2] of section 14

“Every order made by the District Forum under sub-section   [1] shall be signed by its President and the member or members who conducted the proceedings”

 

With the result consumer courts which  remained without Presidents  from November 2009 till Feb end 2011 in various forums in Delhi could not pass any orders for almost one year because the vacancies  of presidents  which had fallen vacant in November 2009[one],Feb 2010,[one]April 2010 [one] May 2010[one] and  in July 2010[two] were advertised on 18th march 2010 only and could be filled finally on Feb 2011

 

Litigation starts due to such defaults  and courts are getting burdened with writs from the sufferers each day for hearing defaults done by the executives and executives defend  themselves on the plea –courts must not interfere in their statutary functions

 

The debate is ripe now on the issue as to whether sitting judges should apply for the posts in tribunals or not .The issue is taking momentum for the reasons –firstly sitting judges may  try to influence the selection process and secondly if their tenure is yet to over, they make the department wait for their retirement.Justice R S Sodhi ,former Delhi High  court judge feels judges applying while still in service denigrate the judicial system .Sharply criticizing this phenomenon Justice Sodhi said ‘this is the crisis of morality within the judiciary .Its so deep that we have a situation where judges are vying with each other for a post after retirement .Ideally,in my view a sitting judge should never apply.What kind of judicial independence we are talking about if judges start applying like this with the government ”

 

 

Dr Prem Lata

Member Consumer Forum

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