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I tried to compare law of
India with other countries in my
studies. I tried to understand why courts in some other countries
don't
have such a high backlog of cases as Indian Courts have. I
concentrated
in civil litigation as I don't have criminal law expertise.
I came to conclusion that Indian Civil Procedural Laws and
Evidence Laws
need to be changed. Indian procedural laws are more like civil
legal
system and requirement of judgments are like common legal system.
This
both feature combine put very heavy burden on Indian Judges. Below
are
reasons and comparisons with Indian legal system and other legal
systems.
Being a Common law country, Indian court decisions (judgments) are
more
like of common legal system. In civil legal system Court don't give lengthy and rational
decision. In civil law countries, courts only say how and what law
they
have applied to facts of case. In civil legal system, courts don't
mention previously decided cases and what was the rational of that
decision. They don't have to follow rational their higher courts
have
followed in their decision (because there would not be any
rational
discussion).
In Indian and common legal system, courts give reasons for
their decisions and their decisions are rational. In common law
counties
and in India, courts discuss rational of their decision in
judgment. In
common legal system like India courts have to take into
consideration
their higher courts decision and courts often cit previous case in
their
judgment.
Because in Civil legal system court decisions are not lengthy
and not rational, they are able to deliver more decision compare
to
common law countries like India. India cannot change its legal
system to
civil legal system (because there are many other feature of civil
legal
system that are not appropriate for Indian legal system) India
cannot
adopt short judgment feature of civil legal system.
India is Common Law country. But in India all procedural laws and
evidence laws are similar to civil law countries. In Civil legal system, court plays very important role in
evidence taking process and deciding many procedural aspects, like
we
have in India.
In Common legal system, Trial Courts do not supervise all
procedure unlike in India. Courts don?t take all evidence in
presence of
judges.
In the US courts, lawyers give application to take evidence.
Upon court approval of application to take evidence, lawyers of
both
sides arrange venue and date-time outside of court to take
deposition
and cross examination. Court steno types all evidence and provide
court's presence. Of course court entertains questions of
admissibility
and relevancy of evidence in court. But most of the evidence
taking
procedure is done outside of court at convenient place and time of
witnesses.
In UK courts, they have department for pre-arguments
procedure. Actual trial court judges do not supervise pre-argument
procedure. For supervision of pre-argument procedure they have
department with people of legal and judicial background. They also
decide admissibility and relevancy of evidence in the court.
Actual
trial courts only listens arguments and give judgment by looking
evidence not taken before it.
It saves a lot of time of actual judges. This way Judges are
getting more time for writing judgments. It can save lot of time
of the
Indian courts if we can implement such procedure in India.
My observation
In civil law countries judges don't have burden to give
rational and lengthy judgments. In common legal system judges
don't have
burden to supervise pre-arguments proceedings. India has evidence
and
procedural rule like civil legal system and judgment requirement
of
common legal system. Both features combines puts heavy burden on
Judges.
Under Indian laws, Indian courts admit video recording as
evidence. If we can provide any legal provision in civil procedure
and
evidence law to parties to take evidence (deposition, cross
examination
and reexamination) on oath out of court and on video recording by
court
clerk on court's video camera (with hallmark to prove its validity
through FSL when questioned), or at least evidence taking
procedure not
before trial judge, it can improve efficiency of Indian Judiciary.
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Judge's
burden in Trial at Indian Courts
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The
author can be reached at:
vkvora@legalserviceindia.com /
