Fast Justice by Justice A.K. Shrivastava
. “law is a service-oriented professionand not a commercial undertaking. There must be a realization for every lawyer that in essence we all are rendering a service to society.”
Former attorney general Soli J Sorabji said that TOI, p.6, 8.10.13
“It is better than ten guilty escape than one innocent suffer.” Bible
Fast justice is the fundamental right of the litigants, but existing justice delivery system in India has miserably failing to give it. Arrears are continuously mounting up every day in the courts – be it the sub-ordinate courts, high courts or supreme court. The litigants are losing faith in the existing judicial system. The crooks are taking full advantage of the system. Stays and bails granted by the courts give them full freedom
The litigants throughout the country, if not underestimated, are paying not less than Rs.150 crores a day to the Firms of Advocates and the individual Advocates in the form of their fee. This estimate is my personal perception considering the volume of litigation and the level of fees charged. It is not based on any statistical datas. The riches of a section of Advocates provide an ample proof of it.
The litigants and the tax payers, in return for what they pay, have a legitimate right to demand fast and fair justice from judges and Advocates but what they are getting in return? Delay in justice, uncertain law and corruption in courts. Therefore, it is the combined duty of the judges and the Advocates to give fast and fair justice to the litigants.
Organising conferences on fast justice is not only laudable but very healthy. There is gathering of legal luminaries comprising learned Judges, Advocates and jurists on the one hand and the Government functionaries on the other at one platform which provides an opportunity for them to interact and listen to each other. We get learned views and calls for judicial reforms. On hearing the erudite speeches one may get convinced that the judicial system needs complete overhaul but the suggested overhaul never sees light of the day and even the suggestions for improvement of the existing system are not implemented. Therefore, the organisers of the conference should take follow up action and see that the thinking emerged in the conference gets implemented by all the operators invested with the obligation to give fast and fair justice to the litigants.
My views in the matter of giving fast and fair justice are very simple. If overhaul of judicial system is required it must be made but till it is made the existing system should not be thrown to dogs. Whatever be the existing system, it has to be operated well and we cannot tell the litigants that look we will give you fast and fair justice when we overhaul the system and till then you wait. How to operate well the existing system to give fast and fair justice, I have some suggestions which I humbly give here, category-wise.
SELECTION AND APPOINTMENT OF JUDGES
Selection and appointment of competent judges is sine qua non for giving fast and fair justice. A saying in Hindi “BOYA PERH BABOOL KA TO AAM KAHAN TE KHAIN” is very apt on the issue. How to do it I have my own views which I express below, court wise.
SUPREME COURT OF INDIA AND HIGH COURTS:
The existing collegiums system for selection and appointment of Supreme Court and High Court Judges has come to stay. On the practical side, it will be very difficult to have any other system. Any Judicial Commission having in it any person who is basically an Advocate or a politician, whatever office he may presently be holding, will be in violation of the judicial independence guaranteed by the Constitution of India and will be resisted by those who profess democracy and independence of the judiciary. The Advocates appear before the courts and the politicians and the executive authorities are now figuring before the courts almost every day. Thus how can they be members of the appointment and disciplinary committee for judges? The only need is that the collegiums created by judicial pronouncements have to act in the right spirit and requirement of their creation. For Supreme Court, only competent and fast working judges should be selected irrespective of their all India seniority. Considerations of state or other representations should be rejected. The principle of legitimate expectation may, for the time being, given a go by. The reason is that the Supreme Court is the highest court of the country and its judges should be role models for the judges of High Courts and subordinate courts.
High Court Judges are appointed from two sources, the District judges and the Advocates. From District Judges the selection should be on the basis of seniority subject to merit. The collegiums examine their judgements to see their merit and their Character Roles to see their conduct. The District Judges, who are in the range of selection, may manage to have very good five judgements which they may send to the High Court, when demanded. That does not reflect their real merit. The High Court, instead of giving option to these judges to send their five judgments of their choice, should ask for the judgments and interim orders given by them in a particular period at random. These judgments and specially the interim orders will only give the true assessment of their merit. From Advocates, the methodology should be that the Chief Justices should compile the list of the proposed names and ask the Registry to give list of the cases in which they are appearing. Then these cases should be directed to be listed before the judges comprising the Collegiums so that they get first hand knowledge of merit and suitability of the candidates. In the matter of appointment of High Court Judges, social philosophies may be allowed but not at the cost of quality..
SUBORDINATE COURTS: Direct selection of all subordinate judges should be through State Public Service Commission whether it is for the courts of Civil Judges or Additional District Judges. Selection of direct recruits from the Bar by High Court for the post of Additional District Judge has not given good results. When the candidates could not achieve minimum aggregate marks for qualifying the test some High Courts lowered the aggregate marks to call for interview and selected them just not to tarnish the image of the Bar that all Advocate candidates failed to pass the examination which was for them only. That has not been a healthy practice. In the matter of promotions of the members of lower judiciary to the post of Additional District Judge, the same method should be adopted as has been suggested in the matter of elevation of a District Judge to the office of High Court Judge.
All brilliant law graduates passing out from National Law Colleges are going to corporate law practice and are not coming to the adjudicatory side as the career prospects of Civil Judges are very poor and these law graduates do not want to wait for seven years to compete for direct recruitment to the post of Additional District Judges which only provides higher career prospects to the subordinate judiciary. Therefore, in order to attract these law graduates to the adjudicatory side, an All India Judicial Service should be established. That will pave way for availability of brilliant District Judges for elevation to the High Court. Selection for All India Judicial Service should be made through Union Public Service Commission.
SUPREME COURT OF INDIA AND HIGH COURTS: The judges of Supreme Court of India and High Courts occupy such a high constitutional office that telling to them how to function would be showing light to the Sun. Litigants give to them highest respect and regards and consider them higher than the mortals and below the God but at the same time they expect exemplary conduct from them. Today the litigants are getting frustrated as the justice being delivered to them is very slow. They only want early hearing and judgments within a time schedule. That is their legitimate as well as constitutional right. Computerisation and catagorization of cases in the Supreme Court cleared the arrears to a great extent. Strengthening that methodology in more modern ways should ease the position.
From what the public is reading in the judicial pronouncements of the Supreme Court and from what it is gathering from public debates regarding working of High Courts, right or wrong, it is definitely disturbed. Seeing the need of the hour, the judges should sit together to find out where the malady may be there and make a combined effort to correct the system. Under the guidance of the then Chief Justice of India, Mr.Justice J.S.Varma, the Supreme Court of India and many High Courts, in the year 1998, had adopted ‘Restatement of Values’. Has time come for the High Courts to adopt ‘Restatement of Judicial Work’? The judges have to introspect and, if find it necessary, adopt ‘Reinstatement of Judicial Work’ and create an in house mechanism to implement the same strictly. The litigants want that judges should hear them throughout the court hours and deliver judgments in time bound period. Too much wait for judgments after the close of hearings very much disturbs them. The judges should, in all fairness, give that much in return which the society is giving to them. Self correction is the golden rule. It is noble as well.
The present Government is contemplating to make law on accountability of judges, on its motion or on the demand of the Supreme Court, I do not know. However, in the past, in the year 2003, I had read somewhere that the then Chief Justice of India, Mr.Justice V.N.Khare, had asked for legislative powers to ensure accountability of judges and a bill on the subject was introduced in the Parliament in the year 2006, which ultimately lapsed. On this issue I ask one question to myself? When the Supreme Court of India, on its judicial side interpreted the word “consultation” as primacy in favour of the judiciary and by its own law created the institution of Collegiums to replace Chief Justice in the matter of selection and appointment of judges of Supreme Court and High Courts, why the Supreme Court should wait for legislature to make law on the accountability of judges and why not make the law itself and enforce it? Both, primacy concept and the institution of Collegiums are holding the field without any legal challenge.
First I take up the maladies and then I will come on remedies.
MALADIES These courts are over flooded with cases. There is shortage of staff. The cases linger on for years after years. Since public comes in direct contact with these courts, general image of the judiciary is going down every day. The litigants in Subordinate Courts are thoroughly dissatisfied and are frustrated. They get dates after dates and are fleeced by all. A majority of presiding officers sit late in the courts and then do not sit till the end of the court hours. Their lunch time is half an hour but they mostly take an hour. Thus the actual working hours get reduced and cases get adjourned by a phrase ‘no time left’ and the litigants get lost. There is no monitoring or check of this malady and it is continuing. How the presiding officers give their required quota when they do not sit in courts during the entire court hours is a million dollar question. It appears that the superintendence and control over them is lax.
There are frequent strikes in courts mostly on local issues which very much hamper the court working and lead to serious delay in justice delivery. Listing of cases gets seriously disturbed.
The procedural laws have the principles of natural justice, a mandate of the Constitution of India. But the litigants who intend to delay the proceedings fully misuse them. Replies, replications, rejoinders and requested applications are seldom filed within the time granted by the courts. Adjournments are taken as a matter of right mostly on the personal ground of the Advocates. The courts, despite the provisions contained in sections 35B and 148 and Order V Rule 1, Order VIII Rules !A and 10 and Order XVII of Civil Procedure Code enlarge time and grant adjournment to save themselves from the contempt of the Bar. Only the opposite party is the worst sufferer. These provisions in CPC are just taken as directory.
The time of the courts is wasted in awaiting the appearance of Advocates. It is very common that on call one side is represented and the other is not. It is in my personal knowledge that in one civil suit, as many as 129 dates were given in which 97 dates were waste dates as either adjournment was taken or there was strike of Advocates on those fixed dates or the court did not sit. It is very unfortunate that 17 dates were wasted due to strike of Advocates. Despite the proviso contained in Rule 1 of Order XVII CPC saying that no adjournment shall be granted more than three times to a party during hearing of the suit the defendant was granted 47 adjournments. The suit was for permanent injunction in which interim injunction was granted. The plaintiff had to be present on all the dates for fear of suit being dismissed in default and interim injunction being vacated. All the adjournments were taken by the defendant, the Government of India. See the plight and frustration of the plaintiff who remained present on all the dates with his Advocate. It took nine years for decision of that simple suit for permanent injunction in which only three witnesses were examined and that also when the High Court had directed for its expeditious disposal. This case is an example of many lacs of cases of such glaring delayed justice in civil matters. It is commonly said that the grandchildren may perhaps get decree in the case filed by their grandfather.
In criminal cases the situation is much worse. Genuine criminal cases are less and motivated ones are more. Arrests lead to bails and sureties. That takes almost half of the working hours of the criminal courts. After the charge sheet, the rigour of appearance on dates after dates fixed starts. Appearance cannot be missed for fear of cancellation of bail. The cases linger for several years, sometimes more than even ten years and the accused has to appear quarterly because as per directions, next date cannot go beyond three months even though the cause list may have to go beyond hundred cases a day when in fact the Magistrate cannot possibly dispose off more than thirty to forty cases a day. The rest sixty and odd get adjourned. All that leads to physical discomfiture and financial loss to the accused and corruption in court staff.
THE REQUIREMENT FROM THE GOVERNMENTS:
1. Increase the required number of courts.
2 . Increase the required number of staff.
3. Give better infrastructure in courts.
4. Computorisation of all courts with interconnectivity.
5. Increase court buildings with adequate parking facility, underground and or multi story.
REQUIREMENT OF BETTER ADMINISTRATIVE AND SUPERVISORY CONTROL:
Presently the control by District Judges, in my view, is lacking. But the District Judges cannot be wholly faulted. District Judge is one in a district and in some states judges under him may be more than 70. It is quite possible that he may not even know the names of all. He, in addition to the requirement of judicial functions equivalent to any other judicial officer, has to perform administrative functions and discharge the obligation of supervisory control over the judges under him. He has to ensure that the presiding officers sit in courts throughout the court hours and give the required quota of disposal. He has also to make annual inspections of all the courts under him. Considering the number of courts under him the inspections remain perfunctory and of no purpose. The surprise rounds taken by him to ensure punctuality of the officers also remain routine. Like any other person he has only 24 hours a day. For his administrative functions he has the assistance of Officer in Charges but for supervisory control over the judges under him he has no assistance. The situation as is prevailing is due to laxity in superintendence and control over the presiding officers. Such laxity leads to so many maladies prevalent in the courts. I wish to give the following scheme for the District Judges to properly exercise supervisory control over the judges under them.
Like Officer in Charge Nazarat, Officer in Charge Copying, Officer in Charge Record Room and Officer in Charge English Office to assist him in administration the District Judge should be provided with an Officer in Charge Supervision from amongst the Additional District Judges to assist him in exercising supervisory and administrative control over the officers under him. Such officer will exercise delegated power of supervision over those officers who are junior to him subject to the overall control of the District Judge. For the seniors, the District Judge will take care himself. Such officer should be entrusted with the job of taking surprise rounds of courts to ensure punctuality of the presiding officers as well as the administrative staff of the District Court. He will inspect the courts and brief the District Judge. He will enquire into the complaints against the officers and submit the reports to the District Judge within a given time frame. He will physically check the returns given by the courts and ensure that the figures of disposal tally with the actual judgments and orders given by each presiding officer. For the aforesaid duties assigned to him he should be given 50% rebate in judicial quota. I am of the definite view that with proper checks, supervision and control the work in subordinate courts will improve and fast and fair justice will be ensured.
COOPERATION OF ADVOCATES: Advocates should take a vow not to call for strike on local issues. The Advocates are neither workmen nor employees. They have to consider as to against whom they strike and whether any authority suffers. It is only the litigants, their paymasters, who suffer as the court work is paralysed and justice is delayed. I have not seen that any strike on local issues bore any fruits. The strikes of Advocates have been declared illegal by Supreme Court of India. Thus every strike is against the established law of the country. On national issues the strikes should only be notional, without affecting court work, only to make a protest to the authorities to show their solidarity. This century is for dialogue across the table. The Advocates belong to a noble profession. They should not resort to strikes, DHARNAS and violence.
The Advocates should adhere to the time schedule given by the courts to file applications, replies, rejoinders, documents and affidavits of evidence. When the litigants are paying so much to the Advocates and they are friends of the judicial system, it is the bounden duty of the Advocates to force their clients to come in time for preparation of pleadings and assist the judiciary in discharging its obligation to give fast and fair justice to litigants.
COOPERATION OF POLICE AND OTHER AUTHORITIES IN CRIMINALCASES:
1. Attendance of witnesses on the dates fixed should be ensured by the concerned police stations and the Circle Officers should monitor that laxity is not made in this regard.
2. The Identification Magistrates should attend the Court to testify on the date fixed and the Sessions Judges and the Magistrates should stick to record their testimony on that date itself unless the situation does not so warrant.
3. The doctors on medico legal side should attend the Court to testify on the date fixed and the Sessions Judges and the Magistrates should stick to record their testimony on that date itself unless the situation does not so warrant.
CIVIL PROCEDURE CODE:
1. Section 35B should be amended to quantify the costs for causing the delay by fixing certain percentage of the valuation of the suit instead of leaving the matter to the opinion of the court. Only then requests for frivolous adjournments will stop. The system has to become strict if fast justice is intended to be given.
2. Provisions of Section 148 relating to enlargement of time fixing maximum thirty days and proviso to Rule 1 of Order XVII fixing maximum three adjournments to each party should be amended to make these provisions mandatory in the same manner as the provisions of Order VIII Rule 1 giving maximum limit of time for filing of written statements have been made mandatory by the provisions of Rule 10 of that very Order.
3. Till the provisions enumerated in part 2 above are amended the High Courts should issue a circular to all the Presiding Officers to strictly adhere to these provisions and the High Courts should take strict view against those Presiding Officers who do not adhere to these provisions.
Former Judge of Delhi High Court
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