By : V.Durga Rao, Lawyer/Attorney, M/s Durga Rao & Associates
Activity: 3 comments 596 views last activity : 11 17 2011 11:51:42 +0000
Whenever we talk about the delay in Courts and the solution, many will be in dilemma as to how to deal with this issue comprehensively. The issues highlighted by many, including public, professionals and the eminent judges, in my opinion, on legal reforms are as follows:
- We do not have adequate number of Courts and judges.
- There is no adequate funding for creating sufficient facilities in the legal system.
- The procedure in Courts is too technical.
- Appointments are not based on merit and there is favoritism and political influence too in the course.
- No accountability on the part of the judges.
- Standards in profession are degrading and we need to concentrate on legal education.
- There is co-operation between Centre and the States to address the issue.
- Corruption at each and every level and there is no transparency.
- The Court systems still not computerized to the extent needed and lesser application of e-governance etc. in the legal system.
I am really shocked to listen to few of my friends and professionals as if there is no solution for the problem of unreasonable delay in Courts in India. I know and I am sure that there is no problem without solution today and the problem of reducing delay in Courts is a simple thing and can be addressed with proper action from the people at the top or by the Government. Enormous funding, constitution of Fast Track Courts, minor amendments like amending one provision of C.P.C asking the defendant to file a Writ Statement within one month etc., will not solve the problem. The people of this Country want an action plan which will give results and this is a serious issue threatening our democratic set-up itself. This is the high time to concentrate on this, as otherwise; the orderliness in the society will definitely get affected. I have really heard few shocking instances and I would like to explain one instance and it is as follows:
“An owner of the land has filed few cases against their tenants and got the order of eviction. Then, the tenants have filed an Appeal and it is pending for years and tenants even started construction too at the site. Finally, the landlord has approached few people with muscle power and they have promised the landowner that they will evict the tenants if the owner guarantees the payment of certain sum. The owner has guaranteed as he has no option, and the tenants were now vacated the place and still, the Court cases are pending and it is likely to take another 10 years for disposal of those cases.”
This is only one instance and many are happening today in the society. No one is interested to approach the Courts despite having a clear legal right and justice and they are approaching police and gundas for getting their rights settled and it has become a reality today that “might is right”. Is it not important to address this issue and what is the point in going to talking about policies, plans, so-called amendments etc. without thinking about an action plan which will produce the desired results? I am really not exaggerating the situation at all and I am telling the truth and it can very easily be ascertained from public at large. No talented law graduate is interested in entering into profession today as there is a drastic decline in litigation though one may say that there is rise. The lawyers are also directly affected with the delays and I know that the professional community agitating in the past over the amendments to C.P.C. I don’t think that today, the legal professionals, can resort to the same agitations and even if they agitate illogically over certain drastic reforms, it is the responsibility of the Government to go ahead with doing the needful and bringing the right reforms.
The Law Commission has recommended or made suggestions to the Government from time to time and I would just like to extract what the 14th Law Commission headed by Shri M.C.Setalvad has opined or recommended to the Government in the year 1958 and very few issued based extracts from the Committee are follows:
Selection of judges to the High Court and its impact:
"9. The selection of a person on considerations other than of merit has far-reaching repercussions. Such a judge would naturally not receive from the members of the Bar, who would be no strangers to his capacity, the full measure of co-operation which is needed fro the proper administration of justice; nor would a judge so appointed generally have that amount of confidence in himself which alone can contribute to the efficient discharge of his duties. These circumstances are bound to affect adversely the quantity and the quality of the work turned out by such a judge. It is axiomatic that the lowering of judicial standards must adversely affect the efficient administration of justice. It has been stated in some quarters that the larger the number of judges, the lower is the proportionate output of work. We are of the view that such a generalization is not based on any acceptable data; but what seems to have led to lower output of work by judges is appointment of persons who are not satisfactory. Whether a judge of a High Court is selected from the Bar or from the services, he should be the fittest person available to hold that office. If this cardinal principle is overlooked in making the appointment, and persons of indifferent capacity are appointed, the work turned out by such persons will naturally not come-up to the proper standards. If, therefore, there has been in some cases a proportionately lower out put of work when a larger number of judges are appointed, the fall in the work is clearly attributable to the circumstance that the persons added were not fitted for the office. The inevitable effect of appointments of this character to the High Court Bench on the disposal of work and the mounting arrears is obvious."
Appointment of Chief Justice:
"A largely body of evidence before us has suggested, that it should be made an invariable practice to fill a vacancy in the office of Chief Justice by appointing a judge from outside the State. Such course, it is said, will have the advantage of giving the Chief Justice of India a wide choice in recommending a person suitable for that office. It has also been pressed upon us that bringing a Chief Justice from outside the State will have a very healthy influence, in that, it will promote a sense of unity in the country and prevent the Chief Justice being swayed by local connections and local influences. It may be mentioned that Chief Justices from outside the State have been appointed in some of the States and these appointments have proved a success. Though the analogy may not be very pertinent, we may refer to the practice of appointing Governors who do not belong to the State, which has been vogue since the advent of the Constitution."
Difficulties in finding the efficient to judgeships:
“38. We have been informed that difficulties arise in recruiting High Court Judges from the Bar because judgeships are offered to promising members of the Bar at a very late stage of their career. We have no doubt that if a rising lawyer whose practice is growing and who is likely in a few years to attain the status of a senior or a leader at the Bar, is offered a judgeship at an early stage of his career, he would accept it. We have at the moment instances of selections of person sat an early age to the Benches of the Calcutta and Bombay High Courts who have turned out to be able and even distinguished judges. We were not surprised at instances brought to our notice of leading members of the Bar in different states who had been offered judgeships at a late stage and at ages which would not give them a sufficient number of years on the Benches to earn their full pension and who had declined them. It was generally agreed that if these members of the Bar had offered judgeships at an earlier age they would have accepted then.”
“Every Chief Justice today finds it extremely difficult to induce leading members of the Bar to accept a judgeship. The salary of a judge has been cut down. The pension he would get on retirement in terms of the value of money today would afford him a bare maintenance. Therefore, the only reason why a member of the Bar would accept a judgeship today would be because of a judgeship would give him a certain status and dignity and would give greater leisure than he would have had if he had continued at the Bar. If the privileges enjoyed by the judges are to be further whittled down, the High Courts of the future will have to be manned either wholly or by judges from service or recruited from members of the Bar occupying the second line. In England, all parties agreed in maintaining the rights and privileges of judges because they realize that the High Court can only function properly, provided the judges are recruited from the best talent available at the Bar.”
Administrative duties of the High Court and its importance in dealing with lower judiciary:
“80. It should not be forgotten that one of the most important duties which a High Court performs is the administrative duty of supervising the work of the subordinate courts. The subordinate judiciary in the State can function with efficiency only if the High Court seriously scrutinizes the work of subordinate judicial officers, attends to the needs of subordinate courts like the provision of court-houses, the transfer of judges, the supply of law books, and the like. Our inquiries have revealed that the importance of these duties is not recognized and that they are neglected in some of the High Courts. Indeed, views have been expressed in some quarters that the High Courts’ function ends with the disposal of the cases pending before them and that the supervision of the lower judiciary and the imparting of a tone to the judicial administration in the whole state by a watchful supervision of the subordinate courts is no part of legitimate function of the High Court. Such a view is entirely erroneous. It should not be difficult for the High Court to perform its administrative duties if the work of supervision over subordinate courts is distributed among several judges, there being an overall supervision on general questions by the Court as a whole. It appears to us that the laxity of supervision by the High Court has in a large measure contributed to a considerable decline in the efficiency of the subordinate judiciary, in some of the states.”
What should we do to address the issue of non-cooperation from the States and the Central Governments responsibility?
“21. Our purpose in reproducing at very great length the observations made by the High Court of Allahabad and the Chief Justice of West Bengal is to appoint attention to this grave state of affairs in regard to the administration of justice which prevails in some of the States. In at least two of the States, the conditions reflect little credit on the State Governments and, particularly, on those in the Government in charge of judicial administration. Under the Constitution administration of justice and the constitution and organization of courts other than the High Courts are the responsibility of the State administration. The facts revealed indicate, on the one had a gross neglect by the state administration of their duty in establishing the necessary number of courts and on the other, a complete failure on the part of the state to carry out its obligations to provide trained and proper judicial personnel for presiding over the courts. The States in question can not even urge financial stringency as an excuse for; the figures reveal that these States have been making substantial gains out of the revenue earned by them by way of Court fees. It is a matter for serious consideration whether in order to prevent what appears to be virtually a breakdown in the system of judicial administration the Central Government should not, by an amendment of the Constitution, be given greater of control over some aspects of judicial administration in the States. This suggestion is made on the basis that such control exercised by the Centre would tend to prevent such deplorable conditions arising.”
Appointment of Supreme Court Judges and the problems:
“24. The meager pension to which Supreme Court Judges are entitled under the present pension rules has two consequences. It deters eminent members of the Bar from accepting judgeships. The main inducement to a member of the Bar to sacrifice his large income and accept a judgeship is, apart from the high status and dignity of the office. The consideration that he would have more leisure and greater scrutiny in the matter of income even in the matter of income even in his declining years. A judge of the Supreme Court is not entitled after retirement to plead or act in any Court or before any authority within the territory of India. He has to depend during the declining years of his life on his savings and the pension to which he is entitled as a retired judge. The meager pension has thus also the undesirable consequence of driving some of the judges who have retired to find some remunerative occupation which affects the dignity of the high judicial office they held.
25. In our view a person whom the state has deemed to fit appoint a judge of the Supreme Court and who has served in that capacity till, the age of 65 should from any point of view be assured of a pension on a scale which will at least maintain him in a reasonable degree of comfort. We have earlier suggested that a person should be appointed at an early age to the Supreme Court so that he can have tenure of office of at least ten years. Unless he has been recruited directly from the Bar he would ordinarily have, when appointed, a service of at least five years as a judge of High Court. Considering all the circumstances we are of the view that the maximum pension of a puisne judge of the supreme court should be fixed at least at Rs.2,500 and of Chief Justice at Rs.3,000 for a service of 15 years including service, if any, as a judge of High Court. The rules will, of course, have to provide for proportionately lesser pension for shorter lengths of service. Such cases should, however, be rare if the recommendations we have made are accepted.”
I have just extracted few paragraphs from the 14th Law Commission report. There are other reports too from time to time and I have seen few other reports highlighting at the root causes, but, in my opinion, we have failed in making comprehensive plan ready and the Government should prepare a comprehensive plan and it should be immediately acted upon. Comprehensive legal reforms are possible and we can definitely reduce the delay in Courts and can provide speedy and effective justice to the public. Though the issue of reforming our “Civil Procedure Code”, “Criminal Procedure Code” and “Law of Evidence” were highlighted in the 14th Law Commission Report itself, the issues were discussed later by other Commissions in the Course. If one looks at the people involved in preparing 14th Law Commission and their commitment to the cause and the wide range of consultations, we will really get shocked and will think whether we can find such committed people today to give suggestions to the Government. Wonderful work has been done and all respect to the legal luminaries of that day. They should be ideal for the today’s younger generation lawyers and I hope that the time may come in the future where we would see people like Shri M.C.Setalvad, Shri Nani Palkiwala, Shri H.M.Seervai among many, in future too. It’s a hope.
As such, it is not that the problem of delay in courts can not be addressed. It can be addressed, but, everyone in this society has become so busy with their problems and there is no time to concentrate on the system. We are used to the so-called measures directing towards some problem knowing that it can not solve the problem. I don’t know as how far this system functions like this and how far this privileged and blessed professionals opt silence over this malady. No disrespect to anyone, but, public interest is more important than anything. As an individual, I may not know the solution to the problem, but, there is solution for everything including the issue of shocking delay in courts. If we can not provide speedy, cheap and effective justice to the people, why should we pay salaries to the court staff, judges and it is are better to abolish the system itself?. There is a limit for the patience too and I am impressed with the patience being exercised by our public and the professionals over this very important issue.
No one can say that Advocates, Judges etc. has no responsibility, but, the ultimate responsibility rests with the Government as it should work for the people. If the judges not functioning, the Government should make them function.
While I strongly believe that we can certainly provide cost-effective and speedy justice to the people of this country and there is solution, I do not know the complete solution and the expert and experienced should look into the matter and the Government should take the expert service on this through committees and it is not enough to show the Law Commission and by making a reference. Effective steps to be taken at any cost. I can just make some points for consideration, in my opinion with limited experience and knowledge, as follows:
- The procedural aspects before Court requires a re-look and we need a simple procedure based on logic, reason, fairness and principles of natural justice. It is possible. Why Company Law Board is not following C.P.C and why Debt Recovery Tribunals are not following C.P.C? We can follow the same logic and we can have simple and effective procedure in the place of C.P.C. If we look at the judgments of the High Court and the Supreme Courts on C.P.C provisions those are technical and with these technicalities there will not be any end to the litigation and I can further substantial this. On the issue of Cr.P.C, I do not have much exposure and experience, but, the issue requires a serious look. Reforming Criminal Justice Administration is a bigger issue and bringing an effective reform in Criminal Justice Administration will remain as a difficult thing.
- Law of Evidence also requires re-look taking ground realities into consideration and it should be studied.
- Appointment of Judges is a serious issue today and I know that it is now being looked-into. Merit should never be compromised. The Government and judiciary should sit-together and evolve a good mechanism to bring young and talented professionals into the Judiciary. This is very important and many problems can be solved with this. If judges of High Court are not up to the standard, then, we can not even imagine supervising lower judiciary and expecting them to function well. As such, it is important to concentrate on selecting young and intelligent as judges and I know that it would be a difficult task today as many intelligent law graduates are not preferring litigation and not coming to Courts. We need to address this issue on urgent basis.
- It is important to make the judges at all levels accountable and it is important to concentrate on the corruption in lower judiciary and it has reached alarming levels as opined by many including former Chief Justice of Delhi Justice A.P.Shah.
- The issue of payment of court-fee is to be concentrated and we need to know as to the cost of maintenance of a legal system in a particular state and the revenue from the system. After deliberations, we should concentrate on payment mechanism and also reducing the court fees.
- If there is a problem with the State Governments on administering certain aspects of lower judiciary, it is better to bring a Constitutional Amendment giving powers to the Centre to address all issues pertaining to judiciary in India. This is important and people will support this move. The only alternative to this problem is the better co-operation between Centre and States and an efficient and committed Higher Judiciary in a State which can supervise the lower judiciary.
- Legal education requires a re-look. Standards in legal education are shocking today excepting the education in few prestigious law colleges and few other law schools. I would like to give one simple example. If we look at the question paper of B.L or LL.B in certain universities, you will find only essay type questions and you will not find any multiple choice questions and this serious problem though appears to be simple. We need to look at the question papers of ICWA and ICSI and we can follow the same pattern. We don’t know as to who is supervising the law education today. We don’t know as to what the Bar Council of India is doing or the Universities are doing. We don’t want problems and we want solution. However, it is great to note the move of All India Bar Council Examination and we require many more serious efforts in this direction.
- Whole system is to be computerized and the web-site should be updated well and should provide all necessary information to the public and professionals.
I have just endeavored to say that the problem in the legal system has gone deep-rooted and turning the clock-back requires meticulous planning and committed people at the right places. But, it is imperative to provide the cheap, effective and speedy reddressel mechanism to the people of India and without this reform; we can not talk about the orderly society, growth etc. issues. India can not become super power without addressing certain core issues and reforming our legal system is also one among them. We do not want an eye-wash exercise and people of India wants a solution to the problem. It is shame on the part of the people of India if we say that we can not address this problem.
Hoping that good things happen in future, hoping that the people will be interested to resolve their disputes only through mediation or courts, hoping that the legal profession will attract the best talent and hoping that we will again see committed and most respected lawyers like Shri M.C.Setalvad, Shri Nani Pakhivala, Shri H.M.Seervai etc.
Note: I have been continuously writing on the issue of legal reforms despite my personal and professional obligations and it is only with public interest and concern at our society. Each one has their own problems and goals, but, simultaneously, each citizen should also concentrate at our system.
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