LEGAL AND JUDICIAL SYSTEM - A NEW LOOK
A BIT OF LOUD THINKING
By P.P. Rao
The flag of the Indian Judiciary has been flying high commanding respect in and outside the country. Bold and innovative landmarks in the evolution of law like Kesavananda Bharati , a wide range of decisions enforcing human rights expanding the area of public interest litigation, the exposition of secularism in S.R. Bommai's Case, assumption of power of selection of judges in the Supreme Court Advocates-on-Record Case, monitoring of investigation in criminal cases involving important political leaders and the firm handling of Veerappan's Case recently, have all made a deep impression on the people encouraging more and more people to approach the courts for relief. However, the institution is unable to solve its chronic problems like mounting arrears of cases and slow disposals in almost all courts except the highest one, declining quality of justice, increasing corruption at certain levels and the play of caste and community. As observed by Sabyasachi Mukharji, J. in A.R. Antulay's Case, "values in public fife and perspective of these values in public life have undergone serious changes and erosion during the last few decades". Members of the Bar interested in the future of the Indian Judiciary have to seriously reflect on the current problems confronting the institution and come out with feasible and inexpensive solutions.
The causes for huge backlog of cases are easily discernible:
(i) growing awareness of rights and judicial remedies, thanks to the media;
(ii) Indifference of the Executive towards the legitimate grievances of citizens;
(iii) inability of the Legislature to control the Executive and to solve the basic problems of the people;
(iv) widespread corruption, nepotism and favouritism in administration;
(v) the influence of caste and community and political connections in the decision-making process,
(vi) lack of transparency in selections, appointments and promotions and generally in exercising administrative powers;
(vii) unsatisfactory conditions of service of judges and judicial officers
(viii) lack of encouragement to ability, integrity and efficiency in the entire hierarchy
(ix) absence of provisions for weeding out persons of doubtful integrity from the judiciary and other public services;
(x) the impractibility of removal of High Court and Supreme Court judges through impeachment in the prevailing political set up;
(xi) outdated transfer policy;
(xii) incompetent judges and ill-equipped lawyers,
(xiii) lack of collective effort on the part of the Bench and the Bar to settle disputes at the early stages of litigation; and
(xiv) undiminished faith of people in the Judiciary as the only institution accessible to them.
The checks and balances contained in the Constitution have almost collapsed. The Judiciary which was conceived by the framers as one of the three coordinate wings of the State has since emerged as the most powerful one relegating the other two wings, namely the Legislature and the Executive, to a subordinate position. The failure of the Executive and the Legislature to discharge their respective functions without fear or favour has been adding to the burden of the Judiciary. The Judiciary is constrained to step in and provide redress to the extent possible even in areas traditionally earmarked for the Executive and the Legislature. This naturally adds to the volume of litigation. Legal aid schemes, Lok Adalats and the new Arbitration and Conciliation Act, 1996 do play but a limited role, in tackling the problem of congestion in Courts. As officers of the Court, Advocates have to accept their share of responsibility to help speedy dispensation of justice to the needy litigants. The cry for justice is loud and clear. The right to speedy trial has ceased to be enforceable, barring in a few exceptional cases.
Of all the resources, natural and physical, the most important one is the human resource. A nation which neglects and wastes its precious human resources cannot progress. To tackle the huge backlog of arrears, we need men and women of ability , integrity and experience. There is no dearth of such persons. They have to be drawn into the system. In the existing political set up, no major reforms can be expected through radical legislation. The alternative is to think of ways and means to solve the problems within the framework of the existing system with minimum involvement of the Executive and the Legislature.
Shift System in Courts:
The Law Commission in its 125 th report recommended inter alia, introducing the shift system in the Supreme Court to clear the backlog of cases by deploying retired judges. on November 6, 1999 the then Union Law Minister had proposed introducing the shift system in all courts where the backlog of arrears is high. This idea merits serious consideration for being acted upon swiftly. The shift system has been in vogue in industrial establishment since long. It has been introduced in educational institutions by opening Evening Colleges to cope up with the increased demand. It is time that it is introduced in Courts. The advantage of the shift system is that with minimum expenditure there can be maximum output giving immense relief to helpless litigants who have been waiting for justice endlessly. The existing court buildings, furniture, library and other infrastructure and equipment could be utilised for the second shift. It would be better, to begin with, to introduce the shift system on an experimental basis by appointing retired judges and judicial officers known for their integrity and ability and who are physically and mentally fit for the job instead of recruiting freshers. Likewise, recently-retired administrative staff could be re-employed to the extent available. On re-employment, the retired judges and judicial officers and other administrative staff could be paid the same salaries and emoluments payable to serving judges and officers subject to adjustment of their pension. Due to adjustment of pension, the net amount payable on account of salaries and allowances will be considerably less. The reservoir of judicial experience available in the shape of retired judges and judicial officers is an untapped human resource too precious to be wasted. They can be easily persuaded to accept re-employment in public interest for manning the second shift in courts. Most of them will agree if they are assured of proper conditions of work. The induction of experienced judicial personnel who enjoy high reputation for their integrity and ability will give a boost to the credibility of the judicial system as a whole. Experienced as they are, retired judges and judicial officers will be able to dispose of cases quickly and clear the arrears fast in the second shift of the Courts. For this reason, the duration of the second shift could be less than the first one.
The prospect of re-employment after retirement and the awareness that only the most upright and efficient judges and judicial officers will be considered for running the second shift is bound to act as an incentive to serving judges and judicial officers to remain honest and discharge their duties to the best of their ability and to the satisfaction of all concerned. If the justice-delivery system continues to move at a snail's pace, rule of law will have no meaning. It is not possible to check the escalating crime rate without expediting criminal trials, revisions and appeals.
Non-Adversarial Approach to Litigation
The time has come for changing the style of advocacy from adversarial to non-adversarial, the effort of the Counsel on both sides being directed towards an amicable, fair and just settlement of the case. It is possible to achieve such settlement if the presiding Judge too uses his good offices. The Bar Council of India can help by incorporating a suitable provision to this effect in the rules of professional conduct prescribed for Advocates under the Advocates Act, 1961 and by organising workshops all over the Country to motivate the Bar. A small amendment to the Code of Civil Procedure will be necessary to make every court explore the possibility of settlement of each and every dispute seriously at the initial stages itself. It may be recalled that the Code of Civil Procedure, 1908 was amended in 1976 inserting Rule 5B in Order XXVII which casts a duty on the court in suits against the Government or a public officer to assist in arriving at a settlement in the first instance. It is necessary to extend the scope of this provision so as to make it obligatory for the court to assist in arriving at a settlement of every dispute in the first instance including those against a Government or a public officer. If the Trial Court makes an earnest endeavour and the members of the Bar also assist in the process of settlement of disputes, the litigants will have-immediate and permanent relief, leaving no scope for any appeal or revision. Even if it takes two or three dates to resolve a dispute in the court of first instance, it is worth the time and effort spent. A similar provision can be made requiring the appellate and revisional courts also to try to bring about a settlement of disputes to the extent possible. The Bar Councils and Bar Associations can help in promoting change of attitude or their members for achieving the object of speedy resolution of disputes.
Section 80 CPC Notice?
Section 80 CPC stipulates giving advance notice of two months to the Government concerned or a public officer before instituting a suit against the Government or the officer. It is a matter of common knowledge that that, in practice. rarely does the recipient of the notice respond positively and makes a sincere attempt to examine the notice and concede the claim to the extent it is found to be justified. Very often the prospective plaintiff receives a one line reply denying the claim and cautioning him that if he still instituted the proposed suit, it would be at his own risk and cost. Even after a suit is filed and registered and summons are issued, the tendency of the defendant Government or public officer is to resist it on all conceivable grounds. The habit of raising technical pleas to defeat just claims of citizens is widely prevalent, notwithstanding the admonition of the Supreme Court in Madras Port Trust v. Hymanshu International that in all morality and justice a public authority should not take up a technical plea to defeat a just claim of the citizen. The Court added that it is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.
Resistance to Decrees and Orders:
There is another unhelpful attitude on the part of the Governments and their instrumentalities to defeat if possible or else to delay the execution of a decree or order made by a court in favour of a citizen by preferring appeals and revisions in a mechanical manner as no officer of the Government would like to take the responsibility of implementing the Judgment of a court straightway. Sometimes the amount of money spent on the litigation is much more than the claim of the citizen. Of late, there is a general tendency on the part of the governments and other authorities to thwart implementation of judicial orders and writs, leaving the aggrieved party with no alternative but to invoke the contempt jurisdiction. Contempt petitions have been consuming a lot of time of Courts which could be saved if public authorities are sensitive to their duty to obey the orders and injunctions of courts implicitly. Article 144 of the Constitution mandates all authorities, civil and judicial, in the territory of India, to act in aid of the Supreme Court. The way Indian democracy is functioning, it is difficult to expect that the Governments all over the country will act with sensitivity towards the genuine grievances of the citizens. Politics and power are the prime concern of political parties these days, not the problems of "we
the People of India". Much of the time is spent either in chasing power and if successful in grabbing it by means fair or foul, in retaining it. Purification of democratic process is not easy. In the face of this hard reality, the task of the Bench and the Bar to secure speedy justice to the litigants will be challenging.
Conserving judicial time:
(a) Avoiding strikes:
Cutting down the vacations is not at all desirable because Judges and Advocates who command a large volume of practice work under strain both intellectual and physical. They need rest at regular intervals to recharge their batteries. Otherwise, the quality of justice will suffer. The judicial time lost on account of frequent strikes resorted to by some Bar Associations can be saved if they can refrain from resorting to strikes for one reason or the other. Regrettably, on two occasions the Bar Council of India itself gave a call to the members of the Bar not to attend Courts this amounts to an appeal if not a direction to commit professional misconduct which is not permitted by the ethics of the profession and the standards of professional conduct and etiquette laid down by the Bar Council of India itself under Section 49(1)(c ) of the Advocates Act, 1961. In U.P.Sales-Tax Service Association v. Taxation Bar Association, Agra, the Supreme Court reviewed the case law and the literature available on the subject exhaustively. -The judgment should be made compulsory reading for every law student. Indiscriminate strikes by lawyers have caused and are causing a lot of damage to the image and credibility of the profession. In Common Cause, a Registered Society v. UOI , the Supreme Court issued some guidelines by way of an interim measure to ensure that strikes are not resorted to easily except on rare occasions and that members of the Bar are not compelled or coerced to join a strike. More recently, in Ramon Services Pvt. Ltd. v. Subhash Kapoor and Others the Supreme Court has rightly declared that a lawyer going on strike is liable to compensate the client for the loss suffered by him on account of his failure to appear and protect his clients' interests in Court when his case was called out. Compromising the interests of the client on account of strike amounts to breach of faith and professional misconduct which a lawyer who at all times is expected to behave like a gentleman should not commit.
b) Avoiding unnecessary litigation:
It is an elementary duty of an Advocate to offer, even if unpalatable, correct advice to his client and dissuade him from filing a meritless case. Even if the assessment of the case made by an Advocate eventually turns about to be incorrect, as it happened to no less a person than P.B. Gajendragadkar, who rose to become the Chief Justice of India in the sixties of the last century, he need not be upset as no one is infallible. We should be honest and straightforward. If members of the Bar conduct themselves keeping the interests of the clients and the Court above their own, much of the unproductive litigation- can be avoided. Again by keeping the number of adjournments to the barest minimum, the Bar can aid speedy disposal of cases. Discharging our duties to the client and the Court diligently by preparing the cases thoroughly and presenting them in Court within the shortest possible time without beating about the bush, and fairly conceding if the other side has a valid point and confining the arguments to points which are worth pressing being highly arguable, if not answerable, in the best traditions of the Bar, we can help disposal of cases. At a time when Courts are unable to bear the weight of arrears, the Bench and the Bar which are aptly described as the two wheels of the chariot of justice must move fast maintaining complete harmony and mutual respect. Justice delayed is justice denied.
-P. P. RAO