Indian Judicial System

Indian judicial system in the particular sense of delivering justice as also the entire legal system of India has virtually failed not only with regard to delivery of justice but also with regard torf timely resolution of disputes in civil and criminal matters. No dispute, even at the trial stage, where the action is initiated, takes not less than 5 to 10 years for the judgment of the lower court in the majority of the cases. Thereafter, if the aggrieved party takes the matter to the appellate stage, either in the District Court or in the High Court and thereafter to the Supreme Court, it will take infinite time for the final outcome of the litigation.

There are cases where parties have died or do not exist, lawyers have died or do not exist or surrendered the brief or are not willing to appear due to lapse of time.

Even the final disposal of the matter is not the end of the litigation, because ultimately the order of the court, whether final or intermediary, if not challenged or is not challengeable, will have to be executed or enforced by instituting execution/enforcement proceedings.

The main participants in the judicial administration consist of the litigants, i.e. plaintiff in a civil action or a complainant in a criminal action, defendant or accused.  The second participants are lawyers of both sides, the third, and the most important is the judiciary.   

Let us take the first, a person who approaches the system for setting aside the wrong done to him by the other side. It is probably a common complaint that if a person, who is responsible for the wrongdoing, initiates any action in the present judicial system, he would benefit immensely because the ultimate final outcome of the dispute would not come during his lifetime and thereafter to find out his successor and to implead the successor again will take considerable time. Obviously, a person against whom there is a huge claim or a person responsible for major misdemeanor would benefit immensely in the manner in which this system functions and a person, who opposes such wrong civil action or act of misdemeanor, will obviously be the worst sufferer in terms of time, money and remedy.

However, where a substantial remedy in the case of a civil action or major misdemeanor is concerned, the person who has suffered would be completely frustrated.  One, who has done wrong, would definitely get a premium of his own wrongdoings as he is interested in delaying the final outcome.  It is, therefore, not inappropriate to say that the wrongdoer is mostly responsible for delaying the final outcome.   The remedy to punish a person, who is a wrongdoer can only be remedied by punishing heavily by awarding heavy costs against him.  While it may be argued that the court fees may be raised to a deterrent level to the disadvantage of the wrongdoers. But such heavy court fees would also at the same time also affect who is not a wrongdoer or is the victim of the system.  It would, therefore, be appropriate that any plaintiff or a complainant, whose alleged grievance is found by the trial court as prima facie not maintainable or found to be taking advantage of misusing the system, heavy costs should be awarded against him. The costs must be deposited in the court before he files any appeal. The amount so deposited should ultimately be paid over to the beneficiary of the final outcome.

This, however, may be challenged on the ground that in the case of a criminal matter, a possibility cannot be ruled that an innocent person may suffer if the action is taken by the State on flimsy grounds.  Ordinarily, the habit of especially of the persons acting on behalf of the State who have administratively taken the decision would insist that the appeal should be filed in order to ensure that they are not held guilty of making a wrong decision.  If it is found that the person who has taken the decision in a casual manner and is ultimately found to be guilty of abusing the process of the court,  such a person, whether at the trial  stage or at the appeal stage, should be made personally liable to compensate the innocent  person who has suffered by such action of such person acting for the State. The question of whether the decision was bona fide or mala fide will have to be left to the discretion of the court. The court should inflict compensation or costs in a symbolic manner but should take into consideration the actual loss caused to the aggrieved party.

The next participant in the legal fraternity. While it is axiomatic to say that the legal fraternity is not required to be a judge and has to act in the interest of his client, whether the cause is right or wrong, even in a case where he is convinced that his client is guilty of wrongdoing. This being the basic principle of common law jurisprudence, and must be accepted.  But the lawyers sometimes also play part in delaying the final outcome of the litigation. For instance asking for adjournment without any genuine ground, non-appearance for having been engaged in another court or that they would have taken another matter which may be far more rewarding. A lawyer may not attend the court where the client is either not a big client or his case is weak.  This is highly unjust to the client, because many a time the lawyers have collected fees for attending meetings with the client for drafting the pleading, but do not appear in the matter at all. This causes severe injustice to the Client It is true that senior lawyers are engaged for their skill, reputation and standing at the Bar. Like movie stars, there is more demand for services of most successful lawyers rather than other competent lawyers. Even though the lawyers, who are designated as senior advocates, are extremely proficient. There is a feeling in the mind of the public that if an extremely successful lawyer is retained by a litigant, the decision could be in his favour.   However, the system, by virtue of what is called ‘practice’, has never recognized any such senior advocates to be responsible for non-appearance.  They are not even required to sign the vakalatnama. They cannot also be held for professional negligence and as a result only a person who is advocate on record in Supreme Court and in certain High Courts would only be responsible for the outcome adverse to the client. Though it is practically same for the client, but the client suffers immeasurably for the senior advocates not appearing in the matter. This is a great injustice to the client and nobody is willing to consider whether sincerely or seriously, non-appearance of an advocate in the court when the matter is called out is justified.  This is nothing but a case of serious miscarriage of justice to the litigant.  The view that non-appearance of a senior advocate should result in the advocate-on-record being held responsible also needs to be reconsidered.  This is because an advocate-on-record is supposed to be looking after the procedural aspects of the litigation and not for the substantive outcome of the litigation.  The system is so much ingrained that a senior advocate is not even required to sign the Vakaltnama.  The remedy in this regard should be to evolve a practice that the courts should set apart one day in every week for finalizing the board, called ‘cause list’, for the next week.   Further, the intimation should be sent by the court not only to advocate-on-record but also to the senior advocate and to the litigant.  All three parties must provide email ids at which such communication can be made.  On the day when the cause list for the next week is prepared, the advocate on record and the senior advocate, if he is retained, should remain present and should charge only nominal fees for finalizing date with the consent of the other party and subject to the discretion of the court. Where a party is from the outstation, the party should also be given notice one week before the date of the hearing so that it would be convenient for such a party to travel to the place where the matter is to be listed for the hearing. The lawyer (whether senior or not), who would conduct the matter, should be held responsible if he does not appear on the date on which the matter is listed.

However, no advocate can be expected to render his professional services without expecting any consideration for having rendered his services.  For that purpose, it is necessary to prescribe the minimum recommended fees for the lawyers based on his seniority. The fees to be paid to a lawyer may ordinarily be based on the time spent in the meetings with the client and the time spent in the court for appearing and conducting the matter in the court.  This could be based on the approximate amount spent by the Government on the salaries of the Judges and the staff and approximate overhead costs. This will also include the time during which he was present in the court until the matter is heard and/or disposed of or adjourned on the next day, as the case may be. This could be the lowest professional fees based on the time spent by him.  But, it could be increased periodically having regard to the inflation and the seniority and the years spent by him at the Bar. Fees for pro bono work should also be paid on that basis. The amount so arrived at be considered for awarding the costs to the other side. However, every lawyer should be free to charge such fees as he may consider appropriate.  But, his minimum fees, as aforesaid, or agreed fees should then be specified in the terms of appointment of the lawyer. While an advocate would be at liberty to charge fees in a case other than in a pro bono.  However, these agreed fees are in no way compulsory for pro bono work or for awarding costs. The payment of the minimum fees fixed as aforesaid should be made part of the judgment and decree for recovery from the litigant for the lawyer retained by the litigant irrespective of what the litigant and the lawyer might have agreed as to the terms of payment.

As regards the fees payable where the advocate does not appear, since he is appearing in some other matter in some other court, he should not be paid fees even for the conference/meeting conducted by him with the client. But, if he appears and has not accepted any other matter in any other court or has also not appeared in the other court, in the expectation of the matter being reached in the court, he should be paid the amount agreed by him with the client. However, if the matter is not called out at all during the day, but he has waited for the whole day for the matter to reach, he should be paid as agreed between the client and himself. But, if he appears and takes adjournment for his own convenience, he should not be paid any fees, except for the conference.  But, if he is willing to appear but the other side has asked for the adjournment or the court itself adjourns the matter, he should be entitled to the fees as agreed by himself and the client. However, if he is not in a position to attend the matter when it was called out, that matter should be kept back for being called out again after the court hours are over where he should appear when the matter is called out after the end of the day or working hours of the court. The next date to be fixed should be convenient for the court and the other side.

Now, we shall discuss the changes required to be made in conducting the trials and the number of Judges and their remuneration.

Many people consider that the Judges’ salaries should be increased since they are rendering essential services to the public.  While their argument is reasonable, but it should also at the same time be considered what is possible and feasible. To expect that the Judges should be paid more than the Indian civil servants qualified as IAS is neither feasible and desirable because even the civil servants are also rendering essential services to the society.   The Judges’ salaries should therefore be as provided for the civil servants. But, the remuneration of the Chief Justices of the High Courts and Chief Justice of the Supreme Court should be linked to the salary of the Governor and Prime Minister of India respectively, in addition to the other perquisites which are given to the civil servants, Governor and the Vice President, together with the pension benefit as provided for the civil servants.

Another important question is the backlog cases. It cannot be denied that many Judges are sitting over time and still have to do work at home for dictating judgments even after court hours.  It is too much to expect Judges to spend time more than 10 hours a day, including the time taken by them for dictating the judgments.   For this purpose, it is absolutely necessary to increase not only the number of permanent Judges in the courts but also adopt additional Judges

However, since the Judge’s remuneration is not attractive commensurate with what the successful lawyers earn in the practice, it is impossible to request such lawyers to accept judgeship as accepting judgeship will cause substantial financial loss to such lawyers commensurate with the financial reward the lawyers get at the practice.

While it is true that lawyers are not willing to accept the appointment as Judges in view of the low salary being paid to them. In that case, it may be made necessary for the lawyers to accept the judgeship for a period of at least 3-5 years who have at least 10 years’ practice.  The salary should be paid commensurate with the salary and other perquisites paid and overhead expenses the Judges and the other staff and overheads.  At the time same time, after completion of 3-5 years of judgeship, these lawyers should be free to resume their practice.  However, in addition to the above, the Judges, who have retired, other than the Chief Justices of High Court / Supreme Court, could also be considered for re-employment for a specified time by giving specific number of cases to them to be disposed of by them within the period for which they have been appointed or after disposal of the case as may be agreed between the Judges and the concerned Chief Justice.

Further, in order to reduce the time spent in the court, the evidence should be recorded as in the United States in the office of the lawyers, and not in the court, there need not be any Judge or Commissioner to record the evidence.   

 

Girish Dave 
on 23 September 2019
Published in Others
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