Reforms to Remove Delays of Law

Image Credit: Youth Ki Awaz
The desirability of judicial reform and solving the problems of delays and the clearance of pendencies is receiving consideration. The following suggestions are made in this connection. Subordinate Judiciary In case foremost attention is paid to the judiciary at lower level, and most of the litigants go satisfied there, a lot of appellate work can be saved. Those are the courts of the common man and almost 80% of the litigation in the country is confined there. Best of talents should be attracted to man those courts, and for this better salary structure and promotional avenues have to be opened. There is no gainsaying that stagnation and frustration are the worst breeders of inefficiency and corruption. There should be a single running scale of the judiciary below and up to the District Judge level of Rs. 4500-7000. Practising lawyers of at least five years' standing should be taken in the service (instead of seven years prescribed for District Judges in Constitution), and two years' next should be spent by them as trainees as judgment writers with High Court Judges or senior most District Judges on the same pattern as existing in American Courts. By the time they are due for appointment, they have enough background of five years' practice and two years strenuous training. No induction at this level of judiciary thereafter from lawyers should take place. At least 50% of the posts in High Courts should be filled up from this judicial service, the selection being on merit basis. A start of basic salary of Rs. 4500/- would certainly attract the best talent at that age. A judicial officer having mastery of law, can eliminate delays, and also not be brow-beaten by an aggressive litigant or a domineering lawyer. Free furnished houses and conveyance should be provided. Civil Cases Evidence In civil cases evidence should be led by way of affidavits in i the same manner as done in writs, company matters, proceedings under the Arbitration Act and the Income-tax Act. Discretion should be left to the court to permit cross-examination of witnesses in exceptional cases. For oral examination of the witnesses, if felt necessary, young lawyers should be appointed as Commissioners so that entire evidence in the case gets finished within a week or so. Motor Accident cases should also be decided on affidavits. Practice of serving interrogatories and obtaining clearcut replies should be encouraged and insisted. This would cut short considerable oral evidence and narrow down the fields of controversy. Compulsory Arbitration Compulsory arbitration at the instance of court should be introduced and discretion should be left to the presiding Judge whether in the circumstances of the case and the unwarranted recalcitrant attitude of one party or the other necessitates such arbitration. Retired Judges, senior members of the bar, office bearers of mercantile and professional associations, educationists etc. should be appointed as arbitrators making it obligatory to give awards within four months after deciding the disputes on affidavits. It is only in exceptional cases that extension of two months should be allowed. Law of arbitration has its basis in desirability of expeditious disposal of disputes. This system has acquired a distorted image these days. It has been found that the retired Judges when appointed as arbitrators, allow the arbitration proceedings to continue for years and charge fees on daily basis, with the result that the parties who know well the vast powers of the arbitrators have to groan silently and bear everything to their ruin. Awards should be delivered within four months of the reference, and the fee should be fixed by the court itself which should be in lump sum. Courts should be competent to call for reasons which prevailed with the arbitrators in case of non-speaking awards. Apart from compulsory arbitration, Conciliation Boards constituted of retired Judges etc. can be created to whom the parties can be referred, and they after bearing the parties and going through the documents and affidavits, can submit reports to the Courts. On consideration of the reports the court may give decision in the case unless some further affidavits or documents are required to be submitted by the parties. Cross-Examinations and Arguments Cross-examination of a witness should not normally exceed one hour unless for exceptional reasons the Court permits further time. Similarly length of arguments should be curtailed, and a party should not take more than four hours for addressing arguments in a case unless otherwise permitted by the Court in exceptional cases. This time should be gradually reduced to half an hour as is the practice in American Courts. This will be possible gradually when the lawyers develop the practice of concising all they have to say as precisely as possible. Parties should be permitted to submit written arguments to supplement what they have to argue in the Court if they feel necessary. Judgments Similarly judgments should be precise and to the point. Most of the litigants are interested in their cases being decided. They are not concerned with the acumen and store house of the knowledge of the Judges. The attitude of immortalisation in law reports and desire to lay down law for posterity should be given up by the Judges at the altar of social demands for making the wheels of justice move. Humility must permeate Judges and personal ego should have no place. Appeals There should be only one appeal against first court's judgment and thereafter one revision only be permitted on substantive question of law. In criminal cases once revision is availed of, there should be no recourse to inherent powers by the High Court. A malpractice which has cropped up on criminal side is that when concurrent revisional jurisdiction is available with the Sessions Judge and the High Court, parties who want to delay the matters first file revision before the Sessions Judge and then invoke the inherent power of the High Court against the decision given by the Sessions Judge. This should stop. Limitation It has become quite common to scoff at the law of limitation which has nurtured through ages and is termed as one of peace and repose. In fact this has now been introduced on the criminal side as well. Somehow a view has come to develop that in writ jurisdiction, no limitation operates. Writ is an extraordinary remedy and is meant for speedy injunct or relief from the court so that the delays inherent in suits do not defeat the rights of the parties. This object is ignored when claims which are otherwise barred under Limitation Act for suits are allowed to be agitated by way of writs and this defeats those provisions and also the basic concept in writs that they are meant for expeditious relief. A peculiar instance has been noticed of a dismissal from service of the year 1967, being assailed by writ in 1985 and still the matter was admitted. Suit u/o 37, C.P.C In suits brought under Order 37, C.P.C. the old procedure of service of summons for judgment at the first stage should be revived. However, the summons must in bold letters and red colour duly underlined convey to the defendant that he must seek leave to defend within ten days of service, and on his failure to do so, the suit would be decreed. A suitable appellate authority against decisions of Labour Courts, Industrial Tribunals and the Regional Provident Funds Commissioners should be set up presided over by a retired Judge of High Court. Rent Cases Matters under the Rent Control Act should be decided by affidavits and summarily. It cannot be ignored that in case there are hard-pressed tenants, there are corresponding hard-pressed landlords as well-Distinction needs to be drawn between a single house owner landlord and a landlord having a number of properties. The former needs to be given protection. Too liberalised grant of permission for leave to defend is only resulting in abuse. These delays are forcing people to indulge in extras-judicial methods, such as giving pugrees to tenants to vacate, engaging ruffians to terrorise tenants etc. Where these loop-holes need to be plugged is that in case a landlord has got vacated a premises for his personal bona fide requirements, and he later lets out the property within five years, he should be punishable with imprisonment for five years for playing fraud on court. In case he has any compulsions to let out within five years, then it should be with the permission of the Rent Controller and after notice to the earlier tenant. Breach should justify handing over of the possession to the evicted tenant. Those who abuse good healthy provisions, should be made punishable when they abuse them and not that those good provisions made ineffective by indiscriminate grant of permission for leave to defend. The grant of eviction of a tenant from residential premises on the ground that he has acquired another residential premises, should be extended to commercial premises also, unless the acquisition is for expansion of business. Matrimonial Case In matrimonial matters, in view of the limited time available with courts because of heavy pendencies, Marriage Reconciliation Bureau to which psychiatrists, social reformers, doctors, educationists etc. are associated, can be constituted. These should be persons who have done deep study of matrimonial and social problems. Couples can be referred to them, and they in turn with the expertise and experience gained from dealing with a large number of cases, assess and opine how far the disputes and differences are reconciliable, and if not, whether divorce should be recommended, and further on what terms. They should be empowered to recommend to the court in what manner and in whose custody the children may be kept. These are too intimate human affairs of far reaching consequences to individuals and society, as to be entirely left for social and factual appraisement of an over-busy Judge who happens for a limited time only to preside over a matrimonial court. Of course, I am not recommending the abdication of the power altogether of a Judge of making the ultimate decision. However, a detailed report from the Bureau can be of immense value to the Judge in arriving at his decision in correct perspective. Marriage Reconciliation Bureau, therefore, can go a long way in assessing the problems besetting couples and thus help the court in arriving at proper decisions. In this age of specialisation when the science and psychology has taken long leaps ahead, it will not be conducive to leave this vital aspect of human affairs to the dry and technical legal quibbles of legal practitioners with some of whom the success or failure of a case is a matter of professional achievement. Income-tax References The practice of income-tax references should be discontinued. Instead an appeal or revision should be made permissible before the High Court against any order of the Income-tax Tribunal on question of law. The practice of reference is time consuming, expensive and often meaningless. Special Tribunals The constitution of specialised tribunals should be encouraged and to the extent matters are within the domain of the tribunal's jurisdiction, the Courts should not interfere unless any constitutional violation is involved. Decree and Documents Under the Code of Civil Procedure when appeal is against a decree, a lot of time is spent in obtaining certified copy of the decree. Appellate courts seldom look into decrees. They are relevant only for executions. Filing of copies of decrees in appeals should be dispensed with. In fact the stenographers of the courts should supply copies of judgments to the litigants when the judgments are pronounced, and the party should be made entitled to file appeal on the basis of those copies. Similarly photo copies of registered documents or of certified copies of any public record or judicial proceedings should be permitted to be led in evidence. Such photo copies can be of certified copies themselves. Court-fee Much lopsided compassion and sympathy has started to be displayed in the matter of charging of court-fee. It is to be noted in this regard that so far as the common man is concerned, whose claims are small, the payment of court-fee hardly matters. With regard to agricultural land, court-fee of ten times the land revenue is paid. It is in big suits involving fairly well-off people and bodies, that larger court-fees have to be paid. Unlike the Income-tax Act, where the higher slab of income results in larger tax, the law of court-fee operates just the other way. The bigger the suit and more well-off is the party, the rate at which he is required to pay court-fee gets more and more reduced as the pecuniary value of the suit goes up. The law thus favours rich man, and if the abolition of court-fee is going to favour anybody it is these rich men, bodies or institutions. In fact it is their lobby which unconsciously is playing for abolition of court-fee. One imminent result of abolition of court-fee would be that there would be plethora of litigation and fanciful claims set up by all and sundry, and the courts would be flooded with more and more cases. Let a serious thought be given to the implications of this before any hasty or idealistic ivory tower approach is adopted. Non payment of court-fee would also encourage prospective defendants to litigate and not enter into settlements as they would like to speculate in litigation without any fear of heavy costs. The law already permits filing of suits by poor as indigent persons without payment of court-fee. Computers Computer facility should be available with the courts in which all data about decisions of courts on law points should be fed so that even cases which are not reported in law reports, get computarised, and the court while deciding cases can know if any and what decisions exist on particular law points. Criminal Trial In criminal cases evidence of formal witnesses should be by way of affidavits and the prosecution should be made competent to tender witnesses just for cross-examination. Reports of postmortem and hand-writing experts should be allowed to be exhibited in examination-in-chief of expert witnesses. The present practice is that the entire reports are verbatim again brought into the evidence. The same is time consuming and mere repetition as expert witnesses just read them out to the stenographer typing the evidence. Criminal Cases Another peculiar feature of our criminal administration of justice is that the accused is allowed to sit pretty and watch the prosecution to unfold its case. All sorts of sundry questions in cross-examination are put in order to fish out weaknesses or infirmities in different possibilities. The result is that when prosecution evidence is closed, the accused has then the opportunity to find out where the lacunae and infirmities exist in the same, and then come forth with a suitable defence which fits in with those infirmities. The courts are not allowed to examine an accused except to the extent the evidence has been led against him. The court's power should be made wider. In fact before a trial starts in serious offences, the same court or some other should be entitled to examine the accused in camera and nobody else should be present in court, as to what his case is with regard to the prosecution case as disclosed to him in the statements under Section 161, Cr. P.C., and other documents supplied to him. That statement should be sealed and kept in safe custody not to be opened till after the entire prosecution evidence and defence evidence are recorded. It would then bring out whether the defence set up during the trial is consistent with the one which had been disclosed in the sealed statement and has not been opportunistic after-thought. Of course, this would not obliterate the necessity of the prosecution evidence standing on its legs It would only eliminate scope for falsity of defence. There is an urgent need to set right what Palkhiwala observed. "Our legal system has made life too easy for criminals and too difficult for law abiding citizens." Dilatory Tactics In appropriate cases where the court finds that one of the parties is indulging in dilatory and vexatious tactics it should be entitled to close the case and decide the matter appropriately against the party, if need be. Service The practice of enjoining the plaintiff or petitioner at the first instance to get the service of the opposite side effected as prevalent in cases under the Companies Act, should be introduced in suits and other civil proceedings. The service aspect should be thereafter left over to the administrative side of the court, and it should be ensured that services of local parties do not take more than two months. Outstation parties should be served by registered post and the courts receiving summons from out-station courts should ensure service within two months. Pleadings It seems that with the prolongation of cases in our courts, the law of pleadings has no less been a casualty. Prolix, vexatious, repetitive and unnecessarily lengthy pleadings and writ petitions are moved, with the result that not only the grain is lost in chaff, but such ostensibly heavy matters are some times shirked by courts from handling. The occasional display of tendency in this regard to impress the client with voluminous pleadings should be discouraged, and the registry of the court should be made competent to direct deletion of repetitive, vexatious, argumentative and such like matters. Interlocutory Applications It has been found that often in the maze of interlocutory applications, the progress of the main ease itself is overlooked, and it gets relegated into background. The courts must ensure that it is the main case which must get speedy disposal, and all incidental applications should be summarily dealt with without recourse to long arguments and delays. Executions So far as executions, the matter of course, orders of issue of warrants of attachment or possession in terms of the decree should be dealt with by Special Officers in the registry, having enough legal background. Only such cases should be laid before the court which require special directions. Writ Jurisdiction Writ jurisdiction as it has emanated from Great Britain and is prevalent there, is considered to be an extraordinary jurisdiction. The yearly institution there seldom exceeds 50 in number. However, in each of the High Courts in India, daily or at least weekly institution comes to that number. The extraordinary remedy has thus been/converted into a most ordinary remedy and is being much abused. Let no impression be created that governance of the country is being gradually passing on to the courts. A self-imposed restraint would alone prevent the ultimate curtailment of this jurisdiction by amendment of Constitution or otherwise. In criminal cases, an appeal or a revision by a private party against acquittal should be heard by the appellate court on merits as done in State appeals. In case the appellate court finds strong grounds in accordance with law to interfere with the acquittal and pass an order of conviction, it should be able to do so. The present practice of setting aside the acquittal and sending the case back for re-trial does not serve any purpose except examination of the same witnesses again and providing unhealthy scope for exertion of undesired influences on them. The high image of judiciary is now being fast eroded by huge pendencies in our courts and long delays. Rather it is sometimes said that only those can afford to approach the courts who have arms of silver which have no dearth of money in spending, and legs of steel which do not tire of coming again and again to courts. Already extrajudicial methods are being adopted in settling disputes outside. Pugree system to get tenants vacated, engagement of gangsters, an honest creditor giving up half of his claim at the demands of unscrupulous debtor, and industrialists adopting tactics to deprive the rights of labourers and the latter too ignoring their duty to the industry, wide-spread corruption etc. are some of the instances. It has now come to be often said that judiciary is wonderful as long as one does not have any litigation in life. Prompt steps are required to curb these unfortunate trends. Already because of huge pendencies and long delays, the judicial system is crumbling. If adequate radical steps are not taken in time, we can allow the matters to drift at peril of the judicial system. Mahatma Gandhi had once said, that wherever courts went, lies increased. We need to have introspection about this. Does our administration of justice necessitate giving twist to facts and suppressing truth? One college professor once said that he had no desire to take a false stand, but his counsel plainly told him that he could not succeed without the same. Not unoften people are heard saying, 'well you are not standing in the court, and, therefore, come out with the truth'. Is it all complimentary to the high stature of judiciary and the administration of justice?

Author Name: Hon'ble Justice D R Khanna