INTRODUCTION: The need for JIA is so much mandatory that judiciary is overloaded with the works that other department imposes. The composition can be brought as follows:
No of cases Disposed= The Arrival of Fresh cases
Justice Jagannadha Rao rightly points out that “ There is no point in blaming the judiciary for the increase of pending cases, the blame must also be with the other departments that help it” –
REASON FOR PENDING OF CASES:
Enacting laws is the function of parliament. Each year Hundreds of legislations are enacted by the parliament and state legislative assemblies. Each legislation increases the burden of court. Presently there are 14,000 Judges, this will take another 300 years for the 26 Million Cases to be cleared. This means the waiting time period for people to get justice from the courts will be long. Litigation demand depends on a variety of factors most of which are not factored in the making of laws. Litigation is increasing due to three processes:
a. Legislative Activity;
b. Judicial Interpretation of laws: For example: Expansion of Doctrine of Sustainable Development by the SC, here inclusion of more and more rights will increase litigation
c. Economic Activity: Economic Development requires more investment on capital and transfer of technology. Here various legislations come into play, Law of Contracts, Labour Law, etc. so this results in the expansion of laws as a result new laws have emerged viz., Competition Law, Information Technology Law, so the judiciary has to see that the right laws are being applied. This lead to another analysis, termed as Judicial Specialisation.
This is the next level of analysis. Additional cost depends on the number of judicial hours and time taken for pleading in court, which includes issuing of notices, filling affidavits, adjournment of cases and passing. The time consumed and the cost incurred in each and every stage of civil and criminal cases is added to calculate the cost in terms of administration of justice. As a result there is a need for a division based on specialization.
WHAT IS JUDICIAL IMPACT ASSESSMENT?
1) A Methodology to know how much workload a legislation will create in courts.
2) To calculate the work load change that judiciary has to bear due to the law or change of law and calculating the expected indicative cost for same change
3) “A process whereby the government can anticipate the likely cost of implementing legislation through the courts and help deliver timely justice to litigants.” – Prof. N.R. Madhava Menon
The key institution to develop linkage between judiciary and the legislature and streamline budgeting of courts. It involves social scientist, statisticians and legal experts. The office is set up at New Delhi and other respected State Capitals. State and District levels will gather statistics on a variety of things. This will process and analyse data to help recognition of weak points in judicial administration.
The JIAO at State level requires the fora or courts for improving of subordinate judiciary with full infrastructural facilities. The need for JIAO at the state level is that huge number of cases have filed up in the courts at all levels and we have to explore the ways and means to bring them to manageable limit which is a pre requisite for sustaining the faith of common man in judicial system. At the state level, the JIAO requires fora or courts with full infrastructure facilities and preparing consolidated actual and correct data of cases instituted, disposed off and pending at various levels with specific focus on number of contested cases. For example in case of Lok Pall Bill, the learned judicial luminaries stressed that The Centre should carry out a judicial impact assessment of implementing the proposed Lokpal Bill to ensure the proper allocation of monetary and other resources for Lokpal institutions across the country. Based on the judicial impact assessment, the Centre must clearly stipulate the share of funding that would be borne by the Union government or the financial costs that the State government would have to bear to run the Lokpal infrastructure .
PURPOSE OF FRAMING THE JIA REPORT & EXTRA CASE LOAD FACTOR:
a. When more and more laws are introduced, a scientific assessment must be made to estimate the extra case load which any new bill or legislation may add to the backlog in courts. This is the primary recommendation of the Jagannadha Rao Committee Report. The JIA Report that suggest methods to tackle the overloading of work problem in the judiciary.
b. Purpose of Constituting the Committee under the leader of Justice Jagannadha Rao is to ensure that the amendments become effective and result in quicker dispensation of justice.
c. The Report explained that estimation must be done beforehand the addition or work load to be borne by the judiciary due to the new laws.
d. One of the key recommendations of the report was that the government should make necessary budgetary provision for adjudication of cases coming under the new laws whether passed by the state legislature or parliament at the bill stage itself.
e. The Government of India must make assessment and provide necessary financial support at the bill stage for implementation of central laws on the subjects in the union list or concurrent list.
f. Even as the state provides the necessary finance and infrastructure to judiciary for implementing the new rights or offences created by the fresh laws, the task force recommended the centre for establishment of additional courts for implementation of union laws.
g. Establishment of JIAO in Delhi and other state capitals with the help of social scientist, statisticians and legal experts.
STRATEGIC RECOMMENDATIONS OF THE REPORT:
I. When legislatures make changes in CPC or Cr.PC, they impact on litigation.
II. If laws are made or amended creating or extinguishing substantive rights, it impacts on the workload of courts.
III. When rights are interpreted narrowly or liberally by High Courts and the Supreme Court in the course of adjudication, it results in less or more litigation.
HOW THE JIA KEPT ITS FIRST STEP- A BIRD’S EYE VIEW OF THE SALEM BAR ASSOCIATION CASE:
SALEM BAR ASSOCIATION CASE-II
Facts of the Case: The present case Salem Advocate Bar Association v. Union of India is basically an aftermath of the original case Salem Advocates Bar Association, Tamil Nadu. v. Union of India. The Honorable Judges presiding over the case were Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee. The subject is basically related to Constitution and is a case of civil nature. In the former case there were certain amendments made to Code of Civil Procedure, 1908 by the Amendment Acts of 1999 and 2002.
AMENDMENTS MADE IN THIS CASE
The following Amendments that was made:
(i) In Section 26(2) and Order 6 Rule 15(4) of Code of Civil Procedure, 1908 in this the affidavit filed under Section 26(2) and Order 6 Rule 15(4) would not be evidence for purpose of trial;
(ii) Written Statement – Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908: There was a limitation for filing written statement. There was restriction regarding extension of time for filing written statement. It was held that the limitation provided under Rule 1 is only directory and finally Court empowered to extend time limit in exceptional cases;
(iii) Execution of Decree – Section 39 (4) and Order 21 Rules 3 and 48: Section 39 does not authorize the Court to execute decree outside its jurisdiction but it does not dilute other provisions giving such power on compliance of conditions stipulated therein. Order 21 Rules 3 and 48 would not be affected by Section 39(4);
(iv) Sale of attached property - Sections 64 (1) and 64 (2) of Code of Civil Procedure, 1908: Sale of attached property on basis of registered contract such a sale is protected under Section 64(2).But the protection is available only to sale affected in pursuance of contract entered prior to attachment. Sale on basis of unregistered contract not protected under Section 64 (2);
(v) Notice – Section 80 of Code of Civil Procedure, 1908 : Central and State Governments directed to appoint an Officer in charge of replying notices received by it under Section 80 or under other similar provisions .In case notice has not been replied or reply is evasive and vague and has been sent without proper application of mind. Court shall ordinarily award heavy cost against Government and direct it to take appropriate action against concerned Officer including recovery of costs from him;
(vi) Alternative Dispute Resolution – Section 89 of Code of Civil Procedure, 1908 and Sections 82 and 84 of Arbitration and Conciliation Act, 1996: Procedure for option to arbitration among four ADRs is not contemplated by Act of 1996.Under Sections 82 or 84 no application where parties agree to go for arbitration under Section 89.The act of 1996 would apply only from stage after reference and not before stage of reference if reference to arbitration made under Section 89 - Judge who makes reference not disqualified to try suit afterwards if no settlement is arrived at between parties;
The former case which created the above mentioned amendments was rejected by this Court but it was noticed in the judgment that modalities have to be formulated for the manner in which section 89 of the Code and, for that matter, the other provisions, which have been introduced by way of amendments, may have to be operated. For this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India , Justice M. Jagannadha Rao was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the ADR referred to in section 89. It was also observed that the model rules, with or without modification, which are formulated may be adopted by the High Court’s concerned for giving effect to section 89(2)(d) of the Code. Further, it was observed that if any difficulties are felt in the working of the amendments, the same can be placed before the Committee which would consider the same and make necessary suggestions in its report.
Issues involved in the Case:
Whether the amendments made in the Code of Civil Procedure, 1908 by the Amendment Act of 1999 and 2000 were constitutionally valid? Judgement: The report is in three parts. Report 1 contains the consideration of the various grievances relating to amendments to the Code and the recommendations of the Committee. Report 2 contains the consideration of various points raised in connection with draft rules for ADR and mediation as envisaged by section 89 of the Code read with Order X Rule 1A, 1B and 1C. Report 3 contains a conceptual appraisal of case management.
REPORT I 1. Amendment inserting Sub-section (2) to Section 26 and Rule 15(4) to Order VI Rule 15: Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof.
2. Order VIII Rule 1 & 10: Order VIII Rule 1, as amended by Act 46 of 1999 provides that the defendant shall within 30 days from the date of service of summons on him; present a written statement of his defence. The rigour of this provision was reduced by Amendment Act 22 of 2002 which enables the Court to extend time for filing written statement, on recording sufficient reasons therefore, but the extension can be maximum for 90 days. The question is,” whether the Court has any power or jurisdiction to extend the period beyond 90 days?” The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur , a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The object which is required to be served by this provision and its design and context in which it is enacted has to be ascertained. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.
3. Section 39 Section 39(1) of the Code provides that the Court which passed a decree may, on the application of the decree-holder send it for execution to another court of competent jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in the section shall be deemed to authorize the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction. The question is whether this newly added provision prohibits the executing court from executing a decree against a person or property outside its jurisdiction and whether this provision overrides Order XXI Rule 3 and Order XXI Rule 48 or whether these provisions continue to be an exception to Section 39(4) as was the legal position before the amendment. Order XXI Rule 3 provides that where immoveable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure. Likewise, under Order XXI Rule 48, attachment of salary of a Government servant, Railway servant or servant of local authority can be made by the court whether; the judgment-debtor or the disbursing officer is or is not within the local limits of the court's jurisdiction. Section 39 does not authorize the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be affected by Section 39(4) of the Code.
4. Section 64(2): Section 64(2) in the Code has been inserted by Amendment Act, 22 of 2002. Section 64, as it originally stood, has been renumbered as Section 64(1). Section 64(1), inter alia, provides that where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. The concept of registration has been introduced to prevent false and frivolous cases of contracts being set up with a view to defeat the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid. If unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected.
5. Section 80: Section 80 (1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior notice. The two months period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. Proper reply can result in reduction of litigation between State and the citizens. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of section 80.
REPORT II The amendment brought into the code related to the Alternative Dispute Resolution Mechanism (Amendment 6) is provided in Report 2. 89. Settlement of disputes outside the Court -- (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and given them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for-- (a) Arbitration; (b) Conciliation; (c) Judicial settlement including settlement through Lok Adalat; or (d) Mediation. (2) Where a dispute has been referred-- (a) For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of Sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. 1A. Direction of the court to opt for any one mode of ADR: After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in Sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. 1B. Appearance before the conciliatory forum or authority: Where a suit is referred under Rule 1A, the parties shall appear before such forum or authority for conciliation of the suit. 1C. Appearance before the Court consequent to the failure of efforts of conciliation--Where a suit is referred under Rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it." Some doubt as to a possible conflict has been expressed in view of use of the word 'may' in section 89 when it stipulates that 'the Court may reformulate the terms of a possible settlement and refer the same and use of the word 'shall' in Order X, Rule 1A when it states that 'the Court shall direct the parties to the suit to opt either mode of settlements outside the Court as specified in Sub-section (1) of section 89'.As can be seen from section 89, its first part uses the word 'shall' when it stipulates that the 'court shall formulate terms of settlement. The use of the word 'May' in later part of section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting section 89 is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or other of the said modes. Section 89 uses both the word 'shall' and 'may' whereas Order X, Rule 1A uses the word 'shall' but on harmonious reading of these provisions it becomes clear that the use of the word 'may' in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. One of the modes to which the dispute can be referred is 'Arbitration’. Section 89 (2) provides that where a dispute has been referred for Arbitration or Conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for Arbitration or Conciliation were referred for settlement under the provisions of 1996 Act. Section 8 of the 1996 Act deals with the power to refer parties to Arbitration where there is arbitration agreement. As held in P. Anand Gajapathi Raju and Ors. v. P.V.G. Raju (Dead) and Ors. , 1996 Act governs a case where arbitration is agreed upon before or pending a suit by all the parties. The 1996 Act, however, does not contemplate a situation as in section 89 of the Code where the Court asks the parties to choose one or other ADRs including Arbitration and the parties choose Arbitration as their option. For the purposes of section 89 and Order X, Rule 1A, 1B and 1C, the relevant Sections in Part X of the Code enable the High Court to frame rules. 1996 Act in relation to Conciliation would apply only after the stage of reference to Conciliation. The 1996 Act does not deal with a situation where after suit is filed, the court requires a party to choose one or other ADRs including Conciliation. Thus, for Conciliation also rules can be made under Part X of the Code for purposes of procedure for opting for 'Conciliation' and upto the stage of reference to Conciliation. The 1996 Act comes into play only after the stage of reference upto the award. A doubt has been expressed in relation to Clause (d) of section 89 (2) of the Code on the question as to finalization of the terms of the compromise. The question is whether the terms of compromise are to be finalized by or before the mediator or by or before the court. It is evident that alt the four alternatives, namely, Arbitration, Conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to be the action of persons or institutions outside the Court and not before the Court. Order X, Rule 1C speaks of the 'Conciliation forum' referring back the dispute to the Court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the court and the court, after giving notice and hearing the parties, 'effect' the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the parties. The question also is about the payment made and expenses to be incurred where the court compulsorily refers a matter for conciliation/mediation. Considering large number of responses received by the Committee to the draft rules it has suggested that in the event of such compulsory reference to conciliation/mediation procedures if expenditure on conciliation/mediation is borne by the government, it may encourage parties to come forward and make attempts at conciliation/mediation. On the other hand, if the parties feel that they have to incur extra expenditure for resorting to such ADR modes, it is likely to act as a deterrent for adopting these methods.
This report dealt with the Case Flow Management and Model Rules. The case management policy can yield remarkable results in achieving more disposals of the cases. Its mandate is for the Judge or an officer of the court to set a time-table and monitor a case from its initiation to its disposal. The Committee on survey of the progress made in other countries has come to a conclusion that the case management system has yielded exceedingly good results. Model Case Flow Management Rules have been separately dealt with for trial courts and first appellate subordinate courts and for High Courts. These draft Rules extensively deal with the various stages of the litigation. The High Courts can examine these Rules, discuss the matter and consider the question of adopting or making case law management and model rules with or without modification, so that a step forward is taken to provide to the litigating public a fair, speedy and inexpensive justice. A committee was formed by Salem bar 2003 case to gave report on amendment in CPC.... Regarding the apprehension that the payment of fee to the Commissioner will add to the burden of the litigant, we feel that generally the expenses incurred towards the fee payable to the Commissioner is likely to be less than expenditure incurred for attending the Courts on various dates for recording evidence besides the harassment and inconvenience to attend the Court again and again for the same purpose and, therefore, in reality in most of the cases, there could be no additional burden....It was also decided by Hon'ble Court that a commissioner appointed for the purpose of recording of evidence have no power to declare witness hostile u/s 154 evidence act. Parties have to apply to trial court for declaring a witness hostile and court may relate him hostile and even can withdraw commission for further recording in the court.... The High Courts may frame necessary rules, regulations or issue practice directions so as to ensure safe and proper custody of the documents when the same are before the Commissioner. It is the duty and obligation of the Commissioners to keep the documents in safe custody and also not to give access of the record to one party in absence of the opposite party or his counsel.... In case of non filing of WS Court may pass judgment in favour of plaintiff. thus it is pointed out that even if WS is not filed it is not mandatory to pass order.... the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory.
Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.. On the issue of service of summon by private courier agency - provision for the same was upheld and it was left to High Courts to make rule in this regard with provision " It can also be provided that if affidavit or any endorsement as to service is found to be false, the deponent can be summarily tried and punished for perjury and the courier company can be black-listed." On adjournment Court held, "Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII Rule 1 from the vice of article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party." It was also pointed out - By mistake, instead of 'defendant's witnesses', the words 'plaintiff's witnesses' have been mentioned in Order VII Rule (4). To avoid any confusion, we direct that till the legislature corrects the mistake, the words 'plaintiffs witnesses, would be read as 'defendant's witnesses' in Order VII Rule 4.... Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs... The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow... Notice to government U/S. 80 discussed as "The object also is to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well. Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. The Governments, Government departments or statutory authorities are defendants in large number of suits pending in various courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. Proper reply can result in reduction of litigation between State and the citizens. In case proper reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of section 80. These provisions cast an implied duty on all concerned governments and States and statutory authorities to send appropriate reply to such notices. Having regard to the existing state of affairs, we direct all concerned governments, Central or State or other authorities, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him." Section 89 uses both the word 'shall' and 'may' whereas Order X, Rule 1A uses the word 'shall' but on harmonious reading of these provisions it becomes clear that the use of the word 'may' in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods.
There is no conflict... Settlement in Lok Adalat means settlement by Lok Adalat as contemplated by the Legal Services Authority Act, 1987. 'Judicial settlement' means a final settlement by way of compromise entered into before a suitable institution or person to which the Court has referred the dispute and which institution or person are deemed to be the Lok Adalats under the provisions of the Legal Service Authority Act, 1987.... So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory in as much as the liberal attitude of the Courts in directing the parties to bear their own costs had led parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points which were unnecessarily raised, costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded.... The proceedings in a suit shall not be stayed merely because of the filing of Miscellaneous Application in the course of suit unless the Court in its discretion expressly thinks it necessary to stay the proceedings in the suit.... Filing of Written submissions: Both the appellants and the respondents shall be required to submit their written submissions two weeks before the commencement of the arguments in the appeal. The cause-list should indicate if written submissions have been filed or not. Wherever they have not been filed, the Court must insist on their being filed within a particular period to be fixed by the Court and each party must serve a copy thereof on the opposite side before the date of commencement of arguments.
OBSERVATIONS MADE BY JUSTICE JAGANADHA RAO COMMITTEE IN THE PRESENT CASE:
The committee observed that: 1. May consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Disputes Resolution (ADR) referred to in section 89. 2. Observed that the model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to section 89(2)(d) of the Code. 3. Further, it was observed that if any difficulties are felt in the working of the amendments, the same can be placed before the Committee which would consider the same and make necessary suggestions in its report.
MODEL CASE MANAGEMENT FORMULA:
ï‚— This was the first observation made by the committee. Here, the courts May consider devising a Model Case Management Formula as well as rules and regulations which should be followed while taking recourse to the ADR referred to in section 89. ï‚— It was also observed that the model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to section 89(2)(d) of the Code; ï‚— Further, it was observed that if any difficulties are felt in the working of the amendments, the same can be placed before the Committee which would consider the same and make necessary suggestions in its report.
WHAT DOES THE 1 & 2 SALEM BAR ASSOCIATION CASES BRINGS TO US?
This set of two cases, former one, laying down the amendments and the latter one providing a report on the amendment’s feasibility have laid down the foundation of providing quick, financially accessible and proper justice. This basically intends to reduce the number of suits filed in the courts every year. The case has been referred to in numerous cases of civil nature after the amendments by the Act of 1999 and 2002. Moreover, the model provided to be followed by the trial court is an easily practicable model and does show the ‘bright light of proper and speedy justice in the darkness of innumerable cases’. The rules provided in the model are appropriate for the system of Indian Judiciary and hence should be properly followed.
SHAMNAD BASHEER v. UNION OF INDIA, 2011: This case challenges the constitutionality and administration of several Tribunals. The case used JIA as a key point in the report submitted to the Madras High Court by Justice Prabha Sridevan, IPAB Chairman. The Report is based on the infrastructure and resources which had been available to the IPAB. Some of the important points in the 13 pages Report are: 1. The Central Government had not carried out any ‘judicial impact assessment’ to assess the resources that would be required by the IPAB after it was created. 2. That the IPAB is currently functioning out of an office of only 5500 sq. ft. despite requiring over 20,000 sq. ft. as per the CPWD norms; 3. That the pay scales of the non-judicial staff at the IPAB are below the pay-scales fixed for the staff of other tribunals. The IPAB is therefore being discriminated against by the Government; 4. That there is an urgent requirement to create several more posts at the IPAB to assist the judicial members in deciding cases; 5. That the 6th Pay Commission recommendations have not been implemented with respect to the Chairperson and Vice-Chairperson of the tribunal. PROBLEMS FACED BY THE TRIBUNALS: The DRT has a staggering backlog of 37,616 cases involving a sum total of Rs. 11,3081.43 crores (Rs. 11,3081,43,00,000). Some like the IPAB have no space, others like TDSAT function from Hotel Samrat; While the CCI operates from the premises of a private building. Sovereign functions of the state must be discharged from buildings owned by the sovereign.
JUDICIAL REFORM & ASSESSMENT STATISTICS:
This assessment statistics was started in 2008-09 as a new Plan scheme. And was included in the 11th Five Year Plan with an outlay of Rs.22.62 crore. The website of the Ministry of Law and Justice says that Rs.1.71 Cr., was incurred as expenditure under the scheme until 2010-11. The Plan had an outlay for the scheme for 2011-12 is Rs.2.53 Cr. The scheme, among other things, proposes to facilitate the study of the feasibility of JIA.
QUESTIONS LEFT UNANSWERED?!!
Are we just moved by the merits of the JIA? Here are two pivotal questions which were shoot by By Prof. G. MOHAN GOPAL, who was the member of Jagannadha Rao Committee, but later on have not signed the report, thus dissenting himself from the committee’s report. The questions which he has shot are of great importance. He raised the following 2 issues: 1. WHY is it that JIA was not an issue when the UDHR was proclaimed in 1948 or when the ICCPR and the ICESCR were adopted in 1966, creating rights for every human being on earth although there was absolutely no judicial capacity to enforce those rights in most of the world? 2. WHY is it that JIA was not an issue when the Constitution of India was adopted in 1950, with its massive arsenal of rights for the excluded, even more potent than the international human rights regime—although India’s Supreme Court was not yet born and India’s judicial system had about 10 % of the capacity it has today? These questions infact makes us to analyse and go back to the real non judicial History of the JIA in INDIA.
NON JUDICIAL- HISTORY OF JIA IN INDIA:
The timing of the emergence of the idea of JIA in India is evidence of what is driving the idea beneath the rhetoric. There was no demand for such an assessment to address the lack of access to justice of the masses of India, or to remedy the woeful lack of resources, well known for years now, to enforce the plethora of social welfare and human rights laws that exist in the country to benefit the poor (for example, juvenile justice laws). It suddenly emerged in a globalising and liberalising economy in order to address concerns of business (global and national). This history forces us to view the darker side of JIA (Demerits of JIA).
DEMERITS OF JIA:
It is because the capacity of courts to handle litigation arising from legislative recognition of rights was not in the United Nations General Assembly or in India’s Constituent Assembly, and should never be in any legislative forum, a consideration in deciding whether or not rights should be recognised and remedies established. If rights and remedies should only be established to the extent that the judicial system has the capacity to handle litigation, neither international human rights instruments nor the Fundamental Rights chapter of the Indian Constitution would ever have been enacted. If rights are to be established only as and when judicial capacity is created, it would have taken many decades before these instruments came into force, given the long gestation period for building judicial capacity. The fact is, however, that JIA is a blunt, ineffective and unnecessary instrument for the purpose of expanding the judicial system to meet rising case loads. It is simply not possible to estimate on a scientific basis and in a reliable manner the number of cases likely to arise from a piece of legislation, especially in an environment such as in our country where even the most rudimentary type of court statistics are not available. It would at best be an astrological prediction. This is not to say that there should not be a systematic process of planning and budgeting to ensure that adequate resources are provided for the judiciary. This should, however, be separated from the legislative process. The budgeting process should take the legislative outputs (driven by political and social demands) as a given and then examine how best the available resources can be deployed to ensure that rights and remedies created by the legislature are protected. On the other hand, JIA is a very dangerous idea because it links the recognition and creation of rights and remedies to the existence or creation of judicial system capacity. Such an approach would have diluted—if not killed—the Constitution of India as well as the human rights instruments because there is simply no judicial capacity to handle the vast universe of rights that these instruments created. The capacity of the judicial system to handle cases should never constrain the development of rights and remedies for common people. It could be argued that information about the judicial cost of rights and remedies may be used positively—to ensure that adequate budgetary resources are provided for. This may well be the case for laws that protect property, security, state power and social privilege (that is, laws that create new security agencies). But in the case of legislation that gives remedies to the powerless against the powerful, the “cost” of the judicial infrastructure needed to implement the Bill will in all likelihood (unless we have a radical shift in the social balance of power) become an excuse to whittle down such rights and remedies to “affordable” levels or to postpone them to a future date when resources may become available.
JUDICIAL ‘USE’ ASSESSMENT (JUA):
No wonder JIA will replace JUA one day… JUA is nothing but an indicator which would measure whether or not people were actually using courts to enforce their rights or whether their rights remained on paper. Take, for example, the landmark legislation on Protection of Women Against Domestic Violence. Social science research should be used to estimate the approximate extent of prevalence of domestic violence by State/local area. The courts and the government should monitor whether victims of domestic violence are in fact securing the protection of the domestic violence Act, and develop area-specific plans to ensure that victims actually use courts. What such a judicial use assessment is likely to show is very low usage of most rights-based laws by a common man. Inadequate judge strength and court infrastructure are only a part of the reason why there is docket exclusion. Lack of an effective human rights bar at local levels is a far more important reason, as is the lack of adequate effort to spread awareness of rights and the social and governmental capacity to implement them.
This test was introduced by the Ministry of Justice of England in 2010. The Ministry finds that these impacts need to be considered, anticipated and planned for an early stage to make best use of public funds. Otherwise the justice system will become strained and service provided jeopordised. JIA Test is a tool to help policy makers find the best way of achieving their policy aim. This aims at: a) Identifying the areas in which impacts need to be determined; b) Suggesting methods for assessing and quantifying the impacts; c) Identifying the ways to avoid or minimise any negative impacts. The test looks at the impact of policy right across the justice system civil and criminal and covers legal aid, courts and tribunals, prisons, probation services an;d prosecution bodies of the judiciary. In short, this test is used to study the impact of a particular proposal. Suppose, if there is a PROPOSAL to increase the quantum of legal disputes, the IMPACT will be that, “any proposal that could increase the likelihood of legal disputes, especially between individuals and public bodies could increase the claims on the legal aid budget.” Examples of JIA test: 1. Whether the penalty is necessary and proportionate to the harm being caused 2. Who will be responsible for investigating and prosecuting any offence 3. Implication of legal aid scheme 4. How the courts will be affected 5. Rights of appeal 6. Enforcement cost of financial penalties.
Although JIA Suggest better planning in setting up of courts with adequate infrastructural facility and paves way for a degree of specialization besides attitudinal changes and values that governs the process of the courts, the following are the changes that I suggest to be implemented in JIA
1. Judicial officers must be imparted with proper Judicial training in disposal of cases
2. Creating JIA fellowship for students
3. Conduction of JIA Test
4. Appointment of more and more judicial officers and create new vacancies to reduce the over burden of Separate offices to be established for the maintenance of accounts;
5. Hiring students from the NLS and Law Colleges, who are right now deep immersed in the whims and fancies of the corporate sector.
6. An action plan should be developed for each court in the country to ensure that the judicial system is fully used to secure rights as envisaged by the Constitution. Such an approach will expand and value the rights of people rather than allow rights and their enforcement to be constrained by lack of judicial capacity and budgetary resources. Judiciary
7. The JUA and JIA must be clubbed together since the two concepts deals with the various dimensions of the Legal Process. This clubbing will help in understanding the overall problems faced by the judiciary and give us the proper reason for pending of cases and help us arrive in the apt solution for these problems.
Tags :Constitutional Law