Justice Delayed Is Justice Denied Argumentative
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There are countless and innumerable arrears in High courts and Supreme Court, and one crore and more in lower courts pending disposal. It is beyond dispute that credibility in courts to administer justice is almost shaken. The impending causes of the backlog of cases are in built arising out of wastage of time at several stages of the legal procedure at different levels of the hierarchal system. This can be overcome to a larger extent “Through a conscionable campaign of the judges by the judges for the judges”. One of the suggestions and effective measures for the disposal of pending cases is to increase the judge-strength when the case docket becomes over loaded and the increase in judge-strength must be at an appropriate time so that the increased strength can cope up with the overloaded cases. To put an end to the huge pendency of cases at all levels it is desirable to appoint more judges, adhoc judges and retired judges and also drafting senior advocates who express their willingness to accept the said appointment by the National Judicial Commission.
The superannuation of the judges said must necessarily be upto the age of 70 years only. The other alternative suggestion is to constitute a judicial reforms committee to produce a simple procedure code without complexities and to eradicate time consuming practices of long, lengthy and prolonged arguments, on intricate points about court fees, bar of limitation, defects in pleadings and in services of notices. Further recommendation is to restrict oral and verbal oration to an extent of 30 minutes in addition to the written argument. Lawyers must prepare the briefs, which shall be short, precise, limited with facts and purely on the basis of question of law, and thereafter the judges must and should necessarily do home-work and come to court well prepared. Many channels of appeals, reviews and revisions provided at present are to be curtailed, as there is a prolonged and continued litigation pending years and years together.
There is no doubt at all that in Indian Judicial system, legal proceedings are more and more than law proper, thereby both the judges and lawyers would lose interest to complete the case at the earliest. To cut down such legal proceedings particularly the civil Procedure Code should necessarily be amended and simplification of the legal procedure, which is now in vague mainly on these two procedural codes, should be introduced. The backlog of cases in almost all courts in India from lower to higher courts has assumed serious problem with regards to regular suits and petitions remaining indisposed for years and years. Now there is very large wide big gap between new cases arising and old cases to be disposed of and accumulation of cases goes on growing without any limitations?
Therefore the suggestion is that time for oral argument should necessarily be restrained, restricted and limited, and clubbed with the written memorandum of arguments to be submitted before the beginning of the oral arguments to the court. The cause is not merely, inadequacy of the number of judges needed but that of inadequacy of methods and procedure adopted in disposing and resolving of the disputes. It is very clear from American experience that the increase of strength in number of judges has done comparatively little to solve the problem of arrears. According to Parkinson’s Law ” The more judges the more inefficiency creeps into the whole legal system”.
A retired judge of The High Court of Calcutta described that the state of affairs and the vexatious litigation in courts has become central point of the judiciary. In fact all courts in India are flooded with millions and millions of cases and thereby the bad litigants drive out the good litigants. Moreover adjournments are sought on very many number of occasions without any just cause or necessity on false, frivolous and untenable grounds including the non availability of lawyers though infact they are available at the next door of the courts. On important occasions ” Mutual adjournments” can be arranged on payment of fees to the opposite advocate stating that there is no objection for such a reasonable plea for adjournment of a case. Under order 17 rule1 of the code of Civil Procedure, punctuality and preparedness on the part of the lawyers and judges are essentially required for the speedy delivery justice system. Little wonder judiciary may fall under its weight, unless appropriate steps are taken by way of preventing vexatious litigation. The next suggestion for the speedy disposal of the cases is by appointing fully qualified advocates as law officers.
The complicated and cumbersome legal procedure laid down in civil procedure code, criminal procedure code and the evidence Act are not only causing harassment to the litigant public which is time consuming. The Bar Associations formed in High Courts, Supreme Court and District Courts on political grounds have added further misery to the litigants by keeping cases in pendency. The other reasons for the delay of the cases is that the advocates wait for a suitable good bench to be constituted before filing their cases as it is rumoured that some courts are guided and directed even by political considerations. The panel of Advocates nominated and appointed by the Government on political considerations is at the root cause of very many problems in the courts. The entire call work i.e. service of notice, calling of witnesses, filing of documents and all other technical matters can as well be looked and checked into by the court officers and then only, the cases posted before the judge either for trial or for hearing.
Delay in disposal is also due to the tortuous and cumbersome procedures. Judge’s time is consumed to see more such things like jurisdictions, cause of action, limitation, provision of law and sufficiency of notice than the actual wrong and the redressal needed. This looking for the wood than the tree erodes credibility of judgment and drives away litigants. Stays are granted and adjournments galore are arranged to the bewilderment of the litigants and appeals and revisions galore further erode the certainty and reliability of court decisions. If court decisions are subject to change, no credibility remains in the eyes of laymen coming to court for redressal of their grievances. To reduce the harassments to the litigants, a high power committee of judges, jurists and administrators should be appointed to prepare and produce the simple codes of procedures i.e. Civil, Criminal and Evidence Act and other acts.
The necessity therefore is not just to increase judge strength to cope with backlog of cases in courts. The necessity is to increase it in time. By the time the proposal gets through and sanction is obtained, the situation has already worsened so that even the sanctioned increase fails to cope up with the backlog, which has increased meanwhile. The solution is to appoint a permanent committee for each High Court with Chief Justice of high Court as Chairman, two senior judges and law minister as members with the powers to investigate the need for increase of judges in each court, sanction the same and appoint them from the panel of reserved judges approved by the Government of India. The committee should also have power to requisition the services of retired judges for short periods if no judges are available from the reserve. The state of justice is due to the cataclysmic decline in Judicial norms and ethics and also the deterioration in the intellectual and moral caliber of judges even according to reports of the law commission.
One more reason and cause for delay in disposal of the pending cases is that the judges are being drafted and released for other work in connection with commissions, committee, enquiries and all other extra- judicial work. The other reason for delay is that number of vacancies in all High Courts and Supreme Court remained unfilled for years and years together but in fact even according to the annual report of the Ministry of law and justice Government of India that the vacancies arising will be known much earlier for the retirement of the judges even according to the date of births and service conditions and therefore the vacancies must be initiated, processed for appointment even months before their retirement. If for any reason the initiation and process for appointment of judges to fill their vacancies takes any length of time retired judges, as Adhoc judges should fill up the vacancy till new incumbents are recruited. This suggestion was found a place in the 1991 congress election manifesto. For the courts to function effectively and speedily for the disposal of pending cases, the full strength of High Courts and Supreme court of India are absolutely necessary.
“The non filling of the posts of Judges in the High Courts and Supreme Court of India” is a major reason for pendency of cases according to the Chief Justice of India Hon’ble Sri Justice Dr A.S.Anand. The number of judges was not proportionate to the growing population and litigations in India, the Chief Justice said while dedicating to the country a building of the Gwalior bench of the Madhya Pradesh High Court here yesterday. In the U.S there were 140 judges for a population of 10 lakhs in the U.K. 100 and on Canada 80 whereas in India the number of judges per 10 lakhs population is less than 11. He called upon all those associated with the judicial system to ensure speedy justice to the people.
There is heavy workload of the Supreme Court and High Courts, which should invariably be lightened by following and incorporating the French Institution of the Council of the Constitution. Similarly the Indian Council of the constitution should consist of eminent experts in Constitutional and also in Civil laws to be appointed by the president with the powers to scrutinize all legislative proposals of the parliament and State legislatures and no bill or legislation must be moved or passed without incorporating the specific suggestions, alterations and amendments made by the council. All such laws so vetted if passed must be accepted by courts as valid laws and neither the Supreme Court nor the High courts shall be competent to question the validity of the legislation.
” It is ironical in this modern jet age, when everything is moving at an accelerated speed, dispensation of justice is moving at a snails pace. The number of pending cases in courts are staggering and shocking and unless the Criminal Justice System improves, common man cannot feel secure and safe”.
Law Minister Arun Jaitley’s proposal to create a parallel mechanism for legal conciliation to reduce the growing pressure on Indian courts is welcome. There is a long tradition in India of settling disputes through mediation, still in practice in parts of rural India.
Litigants are well aware of the higher transaction costs, and wastage of precious time, in persisting with disputes in courts. A reasonable conciliation mechanism is, therefore, bound to go a long way in easing some of the pressure caused by the current back log of cases in courts.
There are close to 40 million cases pending in courts in India today (if we include quasi-judicial forums). The credibility of the judicial system suffers when, on an average, disputes take 20 years to get sorted out. There are an estimated 280,000 undertrials who have been waiting in jail longer than the maximum mandatory sentences for which they are being tried.
The average conviction rate is a mere 5%. The problem is an old one. And it is not as if attempts at dispensing speedy justice have not been made in the past. Special courts, tribunals and lok adalats have been set up to encourage conciliation and mediation. Fast track courts have also proved a success in many states.
However, problem is so enormous that no incremental effort seems to make any substantive difference. The Law Commission in its report on manpower planning in 1987 placed the judge-population ratio in India at 10.05 judges per million people as against 50.09 in the UK, 57.07 in Australia, 75.02 in Canada and 107 in the US.
Therefore, the proposed move to institutionalise a conciliation mechanism on a wider scale must be given a hard look. To begin with, Jaitley could set up a special Committee of retired judges to look at the biggest litigant of all–the government. The Central and state governments are responsible for the vast majority of appeals in the High Courts and Supreme Court.
It is not uncommon for the state to go on appeal even in trivial cases where a government employee has won the case in a lower court. If this can be dealt with in a focused way, that itself will make a significant difference to the dispensation of justice in the country.