An-All year justice delivery system

The notion – that ordinary people want black-robed judges, well dressed lawyers, fine paneled courtrooms as the setting to resolve their disputes, is not correct. People with legal problems. like people with pain, want relief and they want it as quickly and inexpensively, Justice Warran Burger, former Chief Justice of the American Supreme Court

 

INTRODUCTION

 

RM Lodha , C J I, stressed the need to keep the courts open 365 days in a year whereas presently , the Supreme court has 193, High courts 210 and trial courts 245 working days in a year to fight monstrous backlog of over 2 crores cases.[1] and called it as One of the grey areas, where our justice delivery system has failed to come up to the people’s expectations is that the judiciary has failed to deliver justice expeditiously . This delay in delivery of justice is in fact one of the greatest challenges before the judiciary. The problem of delays is not a new one – it is as old as the law itself. The problem has assumed such a gigantic proportion that unless it is solved speedily and effectively, it will in the near future crush completely the whole edifice of our judicial system[2].Delay in context of justice denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the court. An expected life span of a case is an inherent part of the system.

Delay in disposal of cases not only creates disillusionment amongst the litigants, but also undermines the very capability of the system to impart justice in an efficient and effective manner. Long delay also has the effect of defeating justice in quite a number of cases[3]The huge back log in the courts has been the subject of number of Reports, debates in parliament and state legislatures ,in Judicial conferences and the Media. Chief Justice Anand Observed:"The consumers of justice want unpolluted, expeditious and inexpensive justice. In its absence, instead of taking recourse to law, he may be tempted to take law in his own hands. This is what the judicial system must guard against so that people do not take recourse to extra judicial methods to settle their own scores and seek redress of their grievances.”[4]Therefore, the important question is: how the various compontant of justice delivery system can improve the situation. This issue has been examined by law commission in its 77Th voluminious report and justice Y K Sabharwal has also addressed the issue while delivering the lecture on Sobhagmal Memorial lecture on 25thJuly 2006.The CJI outlined a five-point agenda to cope with tribulations facing the judiciary.Justice Lodha called for an all- year justice delivery system. “Law and justice field has its dignity and it must be maintained in order to keep the trust of the people in judicial system”, he added.Judiciary should indeed be developed so as to ensure the enforcement of the rights of the citizens, as envisioned by the Constitution of India. Enforcing the five point agenda will indeed, allow the citizens to value and expand their rights rather than allow them to be crippled by the handicaps of judicial power or budgeting concerns.[5]

In this article I am confining myself with criminal justice delivery system because one of my reader R.Mohandoss has requested while commentating  on my article Declining credibility of judicial precedent in India[6] that I should write to cut short delay in criminal justice delivery system. The delay in criminal justice delivery system may be categorized as, First to check un necessary institution of criminal cases at vary inception which are being instituted for statically purpose at police station and some time judiciary force the police to file more case so that it can be showed disposal in their popular program me for which they get huge budget from government (Lokadalat) and lastly police submits unmerited cases in court for political compulsion and otherwise. Secondly, how to decide the cases pending in courts.

(1)The Role of judiciary:-Present judicial system is based on the system which prevailed during British raj, where imparting justice to masses was not priority. the main aim of the judicial system was to protect the interest of the ruling class with semblance of being just and fair to the ruled. This system is totally out of tune with the tenets of a welfare state which we adopted after independence but successive governments which came did not find enough time to make/ amend the British law which were meant to suppress the ruled . in this connection it will not be out of place to mention that large number of vacations system i.e summer vacation, winter vacation, Dashara vacation , Durga puja etc. The vacations nearly eat away and consumes about 60 working days besides Sunday, saturaday and other festivals and National holidays in a year was introduced in judicial system for British judges . The summer vacations was intended to help Europian judges in pre- Independence period to go to England and spent some time in their country. When more than three crores of cases are pending in Indian courts. It is highly unfair to judicial institution to have 60 ideal days on this score.

There is constant demand of appointing judges in proportion to population . The such demand can be justified in sectors of basic human need which popularly known as Roti, Kapara and Makan and in this list we can aid some other sector like Health, education, nutration and drinking water etc . National resources must be utilized for welfare of maximum number of people and not on any institution who is not utilizing there available resources . All essential services work round the clock but judiciary enjoy large noumber of vacations i.e summer vacation, winter vacation, Dashara vacation , Durga puja etc. The vacations nearly eat away and consumes about 60 working days besides Sunday, saturaday and other festivals and National holidays in a year and was inherited by colonial rule. Thus in the above background it is to be seen  that how system can yield more result in present available resources because India is a poor and developing country and can not afford more budget allocation to this sector as we still failed to provide basic human need/ facilities to our citizen and in that sense I am proposing solution of problem within present available resources .

(i) lack of punctuality, laxity and lack of control over case-files and court-proceedings, attending social and otherfunctions during working hours contribute in no small measure in causing delays in the disposal of cases[7].

(ii) Some judges are very liberal in granting adjournments.

(iii) Some judges come to courts without reading case-files, therefore, the lawyers have to spend a lot of time just to explain the facts of the case and legal point (s) involved therein. Therefore, they argue at length and all this leads to wastage of precious ‘Courts Time’. There is a great need for self improvement by Judges.

 

 judiciary first itself has to honestly take imitative to curb the delay in disposal of case rather than to blame government and other component of system. First step in this direction must be deploy all of its judicial officer in judicial work as it will be surprising to know that about 10% of their strengthen are working on administration in govt./ Departaments and High court Registry which can well be performed be administrative / other legal services officers of state. In Rajasthan judicial officers are working on post of Principal secretary to dy. Secretary in government, Registrar General to Dy. Registrar in High court administration, in legal services, vidhan sabha, publicservise commission,huminrights commission, Lokaykut etc. to perform totally non judicial function. Judiciary is always demanding for increasing posts but they are not utilizing the available officer in judicial work and that not for any pious reason but as every body aware in administration there are easier opportunity of making money/ obliging people and developing liaison. 

 

(2) Role of Government

The state is also responsible for causing delay in the dispensation of justice. The government "contributes" to the problem of delay by its own lack of priority for matters relating to the administration of justice. This may happen indifferent ways, namely - delay in judicial appointments[8]lack of manpower needed for maintaining an efficient and a reasonable legal system and lack of adequate infrastructure facilities in the Court both for the bench and the bar[9].Poor infrastructure in the courts and absence of computerized records etc. This is the age of technology, today even the smallest office in the private sector is well equipped with computers and other electronic gadgets, which help them to raise their efficiency and update their records. But our Judiciary has not been provided with the technical assistance of faxes, dicto-phones and other such devices. Almost all the courts have heaps of rotten files in the basement. In District Courts one can see courts working without electricity. Thus, though we are living in the age of computers, yet our methodologies are outdated and urgently need a re-look.No fixed period for disposal: There is no time limit fixed either by any Act or Code within which the cases must be decided. Therefore, the judges, lawyers and even the litigants take it for granted that there is no urgency to finish the case. The cases drag on for years together.

 

(3) Role of Lawyers

The role of lawyers is very important in justice delivery system. The commitment of these professionals can change the whole scenario. Unfortunately, they are also responsible for delay due to varied reasons.

(i) Lawyers are not precise; they indulge in lengthy oral arguments just to impress their clients.

(ii) Lawyers are known to take adjournments on frivolous grounds. The reasons ranges from death of the distant relative to family celebrations. With every adjournment the process becomes costly for the court and for the litigants; but the Lawyers get paid for their time and appearance. More often than not, lawyers are busy in another court. They have taken up more cases than they can handle, hence, adjournments are frequently sought.

(iii) It is also true that lawyers do not prepare their cases. A better preparation of the brief is bound to increase the efficiency of the system.

(iv) It is seen that lawyers often resort to strikes. The reasons could be any - it ranges from misbehavior with their colleague both inside court or outside the court to implementation of some enactment. The strike by lawyers against the decision of the government to enforce an amendment in the Civil Procedure Code is an example. This was very unfortunate because the main objective behind these amendments was to curtail delays in disposal of cases.

However, the Supreme Court’s Judgment in Harish uppals v Union of India[10]that lawyers had no right to go on strike or give a call for boycott not even a token strike, will certainly discourage the lawyer to go on strike unless they really had a strong cause. In this case the Supreme Court had issued specific directions that Lawyers should not resort to strike except "In rarest of the rare cases" and instead, peaceful demonstrations should be held, such as wearing of the arm band, so that courts’ working is not affected. The Supreme Court held:

The law is already well settled….. a lawyer who has accepted a brief can not refuse to attend court because a boycott call is given by the Bar Association……… the courts are under an obligation to hear and decide case brought before it and can not adjourn matters merely because lawyers are on strike……… that it is the duty and obligation of courts to goon with matters or otherwise it would be tantamount to becoming a privy to the strike….. Lawyers have known, at least since Mahabir’s case[11]that if they participate in a boycott or a strike, their action is Prima-facie bad in view of declaration of law by this court……… that advocates would be answerable for consequences suffered by their clients if the non- appearance was solely on the grounds of a strike call. The court further observed: The court may, however, ignore protest, absentation from work by lawyers for one day in ‘rarest of rare cases’, where the dignity, integrity and independence of the bar and/or bench are at stake.

Stating it in clear terms that any interference from any body or authority in daily administration of justice cannot be tolerated and that the court can and will take disciplinary action against an advocate for non-appearance by reason of a call for strike or boycott it has been suggested (as per justice B.M.Shaw) that the advocates can get redressal of their grievances by passing resolutions, making representations, taking out silent processions, holding dharnas, can resort to relay fast and can have discussions by giving T.V interviews or press statements.

So the need of the hour is that the lawyers must behave in responsible manner and restrain themselves from resorting to strikes etc.This fact can be fortified by last three years figures of Jaipur courts in state of Rajasthan

Chart of lower court working days in Jaipur, Rajasthan

year

No of working days in a year

Condolences/Strike

By advocates

Leave period of judges

No of days

Court functioned in a year

% work done in working days

2012

273

40

45

188

68%

2013

279

57

45

171

62%

2014

31.3.14

68

20

15

33

48%

               

From the above table it is clear that working days in courts in 2012 out of 273 days only 188 days courts function in a year, about 69 % of total working days and in other words courts do not work on 39% working days. Similarly in the first six months of 2013 out of 138 working days on 65 days court did not worked and this comes about 50% of total working days as shown in chart below. It can be well imagined how the mounting arrears of cases will be decided when courts work only with 50% capacity. In brief if I say that in Rajasthan in 2012 courts worked only in 68% of working days and in half year of 2013 only on 62% working days courts functioned and it goes on decreasing up to 48% till March 2014as shown in chart below

This criticism from the Supreme Court of India pithily sums up the problem facing witnesses that the witnesses …are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done a way withs; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice.A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation .or all these reasons and others a person abhors becoming a witness.It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all.. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff.If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery[12].Each trial should be properly monitored. Time has come that all the Courts, district Courts, subordinate Courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence.The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trail[13]

 

(4) Role of Complexity and Rigidity of Procedural laws

There are two types of laws - substantive laws and the procedural laws. Substantive laws define the rights and liabilities. However the procedural laws provide a mechanism to enforce these rights and liabilities Most of these laws are around hundred years old and are not well drafted. Since it is not possible to dispense with them, the only possibility is to reshape them because they have become the biggest stumbling blocks in the way of speedy disposal of cases. The Law Commission of India through its various reports[14]has highlighted these issues. So much time is wasted on the arguments of jurisdiction, cause of action, sufficiency of notice, amendments of plaint and other procedural matters. Moreover, the words or terms used in the Bare Acts are highly technical and difficult (like the words- notwithstanding, nevertheless, proviso, provided subject to the Provision herein after Provided) and hence beyond the comprehensions of a Common man The procedural laws need to be simplified because howsoever good the substantive law may be, it can be effective only if procedural rules are simple, effective and expeditious. There are many provisions in these Acts, providing ample opportunities for delaying the disposal of cases. Even after initial judgment, the opportunity of filling appeals further causes delay, where the final judgment is secured, execution is more than likely to be returned unsatisfied. All this contributes to delays.

The real problem is that the institution of cases in the courts far exceeds their disposal. Though there is a considerable increase in the disposal of cases in various courts, the institution of case has increased more rapidly[5]. when challan is produced against several accused persons and some of accused are not apprehended / absconded during trial in such a cases trial remain pending for their appearance and warrant are not executed for several years and therefore accused who are attending the trial have to wait till the other co accused appears. In this respect procedural law should be suitable amended for splitting up the case against absent accused and proceed with the case with the available accused. Section 273 cr.p.c states that all evidence shall be taken in presence of accused . as per the above provision if any one of the accused is not present/ not represented by his counsel either u/s 205/ 317 Cr P C , the case against other accused could not be proceeded with. I had a personal experience that some time unscrupulous lawyers to harass the prosecution witness do not move personal exemption of accused when they feel that prosecution witness will state against him. Therefore in view of the above procedural lacuna section 273 Cr.P C should be suitable amended and empower court to record evidence in absence of accused if circumnstnces so desires in inters of justice. There are similar provisions in  some special laws.

 

Similarly the revisional and inherent powers vested in High courts were are also not in tune with the tenets of a welfare state which we adopted after independence but successive governments which came did not find enough time to make/ amend the British law which were not meant to justice at gross root level. Therefore, there is need to change the procedural law and empower the sessions judge with revisional and inherent powers so that trial may not delayed .

In the colonial adopted law power to file charge sheet after investigation has been given to police who investigate the case[15]s .As fair trial is integral part of constitutional mandate similarly fair investigation has also been declared as part of Article 21 of constitution in Vakil Ahamad’s case by Apex court and as such agency who is investigating case should not be empowered to take decision as to whether case should be send to trial. From my experience at least in25% criminal cases evidence are not sufficient to prosecute but for statically purpose at police file charge sheet in court and that is totally wastage of courts time. Therefore, there is strong need to amend section 173 of Cr. P C so that un necessary cases may not overburden courts. Such power can be extended to prosecution which is been made solely responsible under criminal procedure code.

(5) Role of prosecution

Prosecution play pivotal role in disposal of criminal cases. Neither the law commission nor Judges even mention it importance in disposal of cases. In our country prosecution need to be independent and strengthen. Union government has made several efforts by amending the criminal procedure code to make this agency more effective and independent but all remained in books[16]. In code of criminal procedure there are power of withdrawal with prosecution but never exercised independently and these powers are usually used by govt. in power for their political ends. Similarly, there are provisions of plea bargaining[17]which if can implemented can curb down the pendency to larger extent but these powers are exceptionally used by prosecutors. Not a single state or union in country has implemented the provisions of section 25A which are meant for effective functioning of prosecution and reason is also obvious that all political party wants to use services of their member of party who works in election for them to appoint them as public prosecutor from sessions court to highest court of state and Nation. In Vineet narains[18]case the Apex court has stress the need of strong and independent prosecution in country akin to U K but all remains in vain for political vested interests. However, with the coming of new Modi government we must hope that if issue is brought in his knowledge his government may take positive initiative in this regard.

Presently power to form opinion in respect of charge sheet  after investigation has been given to police who investigate the case[19]s .As fair investigation has also been declared as part of Article 21 of constitution in Vakil Ahamad’s case by Apex court and as such agency who is investigating case should not be empowered to take decision as to whether case should be send to trial. From my experience at least in25% criminal cases evidence are not sufficient to prosecute but for for statically purpose at police file charge sheet in court and that is totally wastage of courts time. Therefore, there is strong need to amend section 173 of Cr. P C so that un necessary cases may not overburden courts. Such power can be extended to prosecution which is been made solely responsible under criminal procedure code.

The alarming situation calls for speedy remedial measures. These should be practical and effective. These reforms should be capable of providing speedy and efficient justice which is accessible to the common man. Equally important steps should be taken to enforce judicial accountability and independence of the judiciary. Several law commission reports have made a case for many specific and practical judicial reforms. However, little has been done to address this growing crisis. To start with the government, the Judges, the lawyers and litigants - all must have a positive will and strong determination to remove these ills from our system.

(1)Shift System:[20]No doubt, because of financial constraints the creation of new courts is not feasible. To establish a new court at any level involves enormous expenditure. The appointment of whole time staff - judicial and administrative to new courts and building infrastructure involves considerable recurring expenditure which the government cannot afford. There is away out. If the existing court could be made to function in two shifts with the same infrastructure, utilizing the services of retired judges and judicial officers reputed for their integrity and ability, which are physically and mentally fit, it would ease the situation considerably and provide immense relief to the litigants. The accumulated arrears could be reduced quickly and smoothly.[21]Urgent need for filling of old vacancies and creation of new

(2) Litigation should not be Encouraged Another method to reduce the backlog is that the quantum of cases coming to the courts must be reduced. The Judges should be very strict at the first stage itself. They should distinguish between frivolous and genuine litigation and should discourage frivolous litigation.

(3) Expert Advice-The court can take the help of management experts to schedule the cases for hearing in a day.

(4) Fixing Time Limit-Time limit should be set for hearing a case as also for giving decision.

(5) Restriction on Adjournments-Adjournments to be limited to emergencies and exceptional cases. It is common sight for a popular lawyer to handle several cases every day which needs his presence in different courts. This forces him to focus on one or two and seek adjournments on others.

(6) Judges must not be posted in administrative jobs:  there is general tendency of judges to work on administrative post because there are more scope of favour and relationship which they Ancash in their life time . Madhapradash high court has recently withdrawn judicial officers who are functioning in administration of government / High court administration but in other High courts about 10% of total strengthen of judicial officers are enjoying post in administration.

(7)Conclusion

In a country like India with a population of over a 100 crores and large vested interests there are obviously many litigations filed before courts at an increasing pace. New initiatives like fast track courts, evening courts, lok adalats and conciliation and mediation centers , no doubt have helped provide speedy trials and remedies. But still the backlogs in courts have not yet decreased. Our Hon'ble Chief Justice K. G Balakrishnan in a conference of Chief Ministers and Chief Justices on April 19, 2008 pointed out the delay made in the decision of cases at all stages which inevitably leads to accumulation of arrears and dissatisfaction in public mind about the effectiveness of court process for ventilating their grievances. It is a matter of concern that there are arrears of more than 2.5 crore cases in all of our courts. Over 2/3rd of these arecriminalcases. While there has been some progress in reducing pendency in superior courts, the position in subordinate courts has hardly shown any improvement. The above statistics were given by our Hon'ble Prime Minister, Mr. Manmohan Singh at the aforesaid conference. Therefore, there is an urgent need for a speedy disposal of cases and legal processes and procedural matters. It is a well known fact that "Justice delayed is justice denied". Article 21 of the Constitution of India provides, " No person shall be deprived of his life or personal liberty, except according to the procedure established by law." The courts in various cases have held that right to life under Article 21 includes right to speedy trial, only through which right to life can be attained. Thus, to ensure a speedy trial, and to provide for right to life enshrined in our fundamental rights, the concept of plea bargaining has been introduced in the Criminal Procedure Code through the Criminal Law (Amendment) Act, 2005. The idea of plea bargaining enables the prosecutor and defendant to settle the case by the defendant pleading guilty and the prosecutor in return agreeing to reduce the charge against the defendant. Though there are defects in its working it has proved to be beneficial for both the parties, ending the undue delay caused in litigations. Further, as additional justification it is believed that considerable resources would be saved if judiciary works with its full strengthen in only judicial work and provide all- year justice delivery system as propagated by Hon'ble Chief Justice R M Lodha in his five point agenda to cope with present backlog pending cases[22]. Therefore, strengthening prosecution agency and plea bargaining besides accountable and transparent working in judicial system as discussed above has become a necessity in the present scenario to dispose of the litigations in a speedy and effective manner.


J S Rajawat,Advocate

Spl P P C.B.I./Jaipur

[1]TOI dated may 16thpage 1 Jaipur edition

[2]C.L. Aggawwal, “Laws’ Delay and Acccumlation of arrears in the High Courts.” The Journal of Bar Council of India – Vol. 7(1): 1978 p 41.

[3]CJI Justice K.G. Bala Krishnan Efficient Functioning of India’s Justice Delivery System (2007) 4 SCC J-15

[4]Chief Justice A.S. Anand: Indian Judiciary & Challenges of 21stcentury. The Indian Journal of Public Administration July-Sept 1999 Vol XLV No. 3, p 299

[5]CJI R M Lodha onLaw live.com dated 19thmay 2014

[6]Article on lawyers club India.com

[7]CJI A.S. Anand: Indian Judiciary and Challenges of 21stcentury: The Indian Journal of Public Administration: July-Sept 1999 vol XLV No. 3, p 300

[8]CJI K.G. Bala Krishnan, as quoted in Hindustan times, 25 Sept, 2007 has said that India required 1539 more judges in H.C. and 1, 8479 in sub-ordinate courts to clear the back log of cases in one year.

[9]CJI K.G.: Balakrishnan in April, 2007, blamed the government for poor judge population ratio, making laws without judical impact assessment and not setting up courts to adjudicate cases arising out of central laws quoted in H.T, 25 Sept, 2007

[10]. AIR 2003 SC739

[11]Mahabir Prasad Singh Vs Jack Aviation (P) Ltd. AIR 1999 SC 287

[13]U P v/s Shambunath 2001 SCC 667

[14]The law commission through its 14th, 27th, 41st, 48th, 54th, 71st, 74th, 77th, 79th & 144th report has dealt with reforms in legislation.

[15]Section 173 Cr.P.C

[16]Section 25 A Cr P C introdured by amendement bill 2005

[17]Section 265 A to 265l and section 321

[18]AIR 1991SC

[19]Section 173 Cr.P.C

[20]The law commission’s 125threport dated May 11,1988 has recommended introducing shift system in the supreme court to clear backlog of cases by deploying retired judges 

[21]P.P Rao: Access to justice and delay in disposal of cases published Sournier on in All India Seminar on judicial reforms with special reference to arrears of court cases p.

[22]CJI R M Lodha in his five point agenda to cope pending backlog onLaw live.com dated 19thmay 2014

 

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