The court’s not in order
That a country is theoretically governed by a just code of law does not necessitate rule of law or justice. It can safely be said that an accessible, affordable and quick justice delivery system is the foundation of the freedom of an individual against the excesses of a state or powerful individuals within it. It is no surprise that the first charter of liberties, the Magna Carta, guarantees in Clause 40, “To no one will we sell, to no one will we refuse or delay right or justice”.
Unfortunately, however, courts across the world, whether they are domestic, civil and criminal courts or international tribunals for commercial arbitration or human rights enforcement, are plagued by inordinate delays.
The Indian legal system is no stranger to high costs, delays and lack of certainty at all levels. The Government of India has set up several panels since the Justice Rankin Committee in 1924 with the objective of sorting this out. The Justice S.R. Das Committee in 1949, the Justice J.C. Shaha Committee in 1972, the Satish Chandra Committee in 1986 and the Justice V.S. Mallimath Committee in 1990 were all formed to identify the causes of judicial delay and recommend remedial measures. The main issues indentified by these committees responsible for delays are, broadly:
w Shortage and/or lack of proper training of judges;
w Lack of motivation and sense of duty among the court staff;
w Lack of facility and use of time-saving technology on account of limited budgets in judicial forums;
w Long-winded and archaic procedures;
w Ill-equipped and overburdened investigation machinery and prosecutors;
w Incompetent and ethically compromised lawyers whose fee is generally unregulated;
w Low costs imposed by courts for delay and frivolous litigation. However, there has been no sincere effort to implement and finance the recommendations of these committees.
Some initiatives, including the 2002 Amendments to the Civil Procedure Code, have resulted in reduction of delays. Introduction of plea bargaining for petty offences by the Code of Criminal Procedure amendment has reduced the burden on the state prosecutorial service and the judiciary. Yet, in a country where there is one judge for every 10.5 million people, no amount of amendments to the procedural codes can increase the rate of disposal without compromising the quality and fairness of justice.
In India, the appointment of a district judge is done by the state government in consultation with the state’s high court. The criteria for selection merely requires a minimum of seven years of practice as a lawyer at the bar and thereafter upon clearing a written examination and oral interview by a committee of high court judges. Since this process is not regulated stringently, the written exams are not conducted regularly or publicised widely and the interview is based purely on discretion. As a result, the district courts which already have an inadequate sanctioned strength of judges, work with judges below even the sanctioned strength. Similarly, the selection of judges for the high courts and the Supreme Court is done by the collegiums of the courts — here the criteria for selection is purely discretionary and non-transparent and the gap between the vacancy arising and its being filled often runs into several years, resulting in a shortage of judges at all levels.
Appointment of a permanent and independent commission, akin to the Union Public Service Commission, to select judges, thereby replacing the present system would go a long way in ensuring timely filing of vacancies as well as create a body to evaluate and agitate for increase in the sanctioned strength of judges based on future required.
It is also not out of place to mention that the Indian judiciary is often left to learn on-the-job and little importance is given to the training of judges. It is often seen, especially in criminal courts, that judges find themselves ill at ease to pass decisive orders on account of their lack of training. This can certainly be rectified by proper use of the National Judicial Academy, making training of the selected judges as well as conduct of refresher courses compulsory by rules of self-governance stipulated by the collegium of the high courts.
Similarly, since the Advocates Act 1961 bars lawyers from advertising in any manner. This results in oligopolistic structures in the lawyers’ market, often leaving a client without any choice as to the arbitrary fee demanded by lawyers. An amendment to Advocates Act 1961, laying down stringent guidelines for charging fee and setting up structures to regulate and monitor the fee, including permitting lawyers to advertise themselves, would go a long way in reducing the expense of litigation and raising the level of competence of lawyers by exposing them to competition and accountability.
While amendment in the law to improve the efficiency and availability of judges and lawyers is necessary, there is no doubt that the Code of Civil Procedure needs to be appropriately amended, making it mandatory for judges to impose actual costs upon parties that seek frivolous adjournments or file frivolous cases. The costs can be calculated by the registry of the courts and must include, at the minimum, loss to the other party including legal fee and costs to the court including administrative time.
The setting up of small causes courts, such as in the UK, for summary disposal of petty offences, which are currently heard by civil judges, to adjudicate disputes below `1 lakh, which may include recovery amounts, bounced cheques and damage to property would benefit people since lawyers are not permitted in these forums and the matters are decided by hearing both the sides in a summary manner, without leading evidence. The mandate of no lawyers and summary procedure, which formed the Consumer Protection Act, ought to be strictly implemented. Also, with an appropriate amendment the second rung of appeal, the National Consumer Disputes Redressal Commission, ought to be removed, thereby bringing finality to the litigation sooner. Also, if pre-litigation mediation is made compulsory in family matters pertaining to siblings or spouses, it would go a long way in resolving family matters amicably and quickly.
Finally, there is no substitute for the use of technology to end delays. While several courts have made the cause lists and court orders available on the Internet, the Delhi high court is probably one of the first courts in the world that has two full-fledged e-courts. An overarching legislation to provide for time-bound introduction of e-courts around the country and appropriate budgetary allocation for the same would ensure the speedy and uniform implementation of technology to courts in India.
If the adage “justice delayed is justice denied” is used less to lament the abysmal state of the legal system and more like a legal maxim compulsory to adhere to, we may move closer to actualising the constitutional promise of justice — social, economic and political — for all.
Nandita Rao, an activist and lawyer, has been practising at the Delhi high court since 1998