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        The judicial oath requires judges to dispense, not justice, but 'justice according to law'. But what is justice and whence comes the law? All of us call the buildings in which judges sit as courts of justice. In certain countries they even boast of having ministers of justice, although hard experience suggests that even this grand title affords no guarantee of superior performance. The Concise Oxford Dictionary defines 'just' as 'acting or done in accordance with what is morally right or fair'. And yet no two people will necessarily agree on what is morally right or fair in any given situation. Justice, like mercy, is what might be called an irreducible concept: It cannot be helpfully defined further. William Prosser in a book called 'The Judicial Humourist' rightly observed: 'Justice has been described as a lady who has been subject to so many miscarriages as to cast serious reflections upon her virtue.'

        At the same time no one can deny that justice in a court of law is indiscriminately due to all, without regard to numbers, wealth or rank. This very sacred ideal was succinctly stated in immortal words in MAGNA CARTA in 1215 A.D: 'To no one will we sell, to no one will we refuse or delay, right or justice'. In post independent India, we have managed to create a judiciary which is committed to the philosophy of rejecting the injunctions of Magna Carta in spirit if not in letter. In many courts of law in India today, from the lowest Munsif's Court to the highest Supreme Court, justice can be bought and sold, where those citizens who deserve right or justice are denied both or where there are inordinate delays in rendering rights or justice. Justice Learned Hand, one of the greatest champions of liberty, freedom and justice in America, in his address before the Legal Aid Society of New York in 1951 declared : 'If we are to keep our democracy, there must be one Commandment : Though shall not ration justice'.

While unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon their own exercise of power by all the judges in all the courts of law is their own sense of self restraint. Every judge must remember this motto: 'My final judge and my only rival is myself.' The highest exercise of judicial duty for a judge lies in his subordinating his personal pulls and his private views to the law of which he is expected to function as a guardian—— the bedrock of which is rooted in impersonal convictions that make a society a civilised community, and not the victims of personal rule.         Justice Jeremy Bentham said it for all time when he observed in 1923: 'It is the judges that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. That is the way you make laws for your dog: and this is the way the judges make law for you and me'.         The judicial process in India even at the level of the Supreme Court was severely criticised by H M Seervai (1906-1996) who held the office of Advocate General of Maharashtra from 1957 to 1974. He is considered as one of the foremost authorities in the field of Constitutional Law. In 1981 he wrote about the following issues / problems / bottlenecks / hurdles coming in the way of smooth functioning of the judicial process in India even at the highest level of Supreme Court. :

H M Seervai

         1. The greatest cause of delay is adjournments obtained by fashionable Counsel for their personal convenience because they are busy in other Courts and Judges grant adjournments contrary to the express provision of the amended 0.17, Rule 1 of SUPREME COURT RULES which says that the fact that a Counsel is in another Court is not a ground for adjournment and the fact that a Counsel is ill is not a ground for adjournment if there was time to return the brief and brief another Counsel. Former Chief Justice Chagla completely endorsed this view of Seervai.

        2. Seervai said there are two types of adjournments: open and concealed. As regards open adjournments, he stated that once a date has been fixed to suit the convenience of all parties, the Supreme Court should set an example by refusing all adjournments not permitted by 0.17, Rule 1. To quote Seervai's brilliant words in this context : 'The litigant and the administration of justice come first, the Judges come second and Counsel come third. Adjournments for mutual accommodation of Counsel who accept briefs in various courts are bringing the administration of justice into contempt, to the delight of those who discredit the judiciary and destroy its independence.' As regards concealed adjournments, Seervai had this to say: On the day reserved for admission of Special Leave Petitions, the Supreme Court sits in several Divisional Benches of two Judges. Counsel accept briefs in a number of Courts: A, C, E, G—etc. If a Counsel is not present in Court A, because he is in Court C or D, Judges in Court A say 'Pass over'. This is an euphemism for adjourning the matter pro tanto for Counsel's convenience and such an adjournment should be refused. Counsel must make up their minds in which Court they will accept briefs. The dismissal of a Special Leave Petition because Counsel is absent may cause hardship, but will promote the interest of justice by removing the unfortunate impression that only one of six or eight Counsel must be briefed at fancy fees if the petition has any chance of success. In his great essay on the Judicature, Francis Bacon struck a heavy blow on this evil with insight when he said: 'But it is more strange, that Judges should have noted favourites; which cannot but cause multiplication of fees at the suggestion of bye ways', a suggestion which has increased when the favourite entertains the Judge.

        3. The Supreme Court has created an additional burden by allowing a party to file a Special Leave Petition from the judgement of a single Judge, thus obliterating the distinction between Special Leave and Leave as a matter of right. No doubt this has been done to save expense and time, but the Supreme Court gets so cluttered up that matters remain undecided for years.

        4. The Supreme Court is a Court of Law and though it has power to revie4w both fact and law, it is an exceptional power and the exception ought not to be the rule as it seems to have become today. To allow the individual Judge's feeling of injustice to admit petitions is, to apply the words of Justice Gajendragadkar: inevitably to introduce in such decisions a disconcerting unpredictability usually associated with gambling, and that is a reproach which the judicial process must constantly and scrupulously try to avoid.

        5. Many Judges today are over-anxious to be in the vanguard of modern thought by references to psychology, sociology, anthropology, political theory etc. Seervai observes with biting humour: 'I would make a sporting offer to let a Judge who based his judgements on these modern 'Sciences' step in the box and give evidence as expert witness and be cross-examined'. This is not to say that Judges should not be aware of the social, economic and political problems of a society which the laws are designed to solve. And if the words used in a statute are reasonably capable of effectuating the purpose which appears to underlie the law, that interpretation should be given to the words.

        6. Delay in delivering judgements is an important contributory cause for delay in litigation and to the law being unsatisfactorily laid down.

        7. Wasteful use of judicial power is a common factor at all levels of the judiciary in India. Judges not familiar with criminal laws are called upon to deal with complicated acts of crime and vice-versa. This often leads to failure of justice.

        8. Several posts of judges remain vacant at all levels mainly on grounds of political politics, communal politics, regional politics and denominational or religious politics. This ugly phenomenon totally vitiates the sacred processes of justice without fear or favour.

        The most elementary conceptions of justice and public policy require that a wrong doer shall bear the risk of the uncertainty which his own wrong has created. What is the disgraceful situation in India today? Dastardly criminals who can get hauled up by any III Class Magistrate for small and petty crimes, become MPs and MLAs and the luckier ones amongst them become State Ministers or Union Cabinet Ministers. This should not be taken to mean that most of them are only guilty of petty crimes. Many of them have been guilty of major crimes and criminal cases are pending against them in several courts of law. And yet that has not come in the way of their functioning as Cabinet Ministers, exercising their full authority and patronage, for the dispensation of special favours to their cronies and sycophants. The law in India has been reduced to a state of impotence. MOST OF THE COURTS IN INDIA ARE VIEWING LAW AS MERE THEORY AND NOT AS A LIVING FORCE. And hence it is that Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. That is why Rudolf Von Ihering in his classic 'The Struggle for Law' wrote in 1879 : 'The scales and the sword belong together, and the state of the law is perfect, only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales'.