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Judge's burden in Trial at Indian Courts

Written by: Adv.Vishal K Vora - LL.M. in Comparative Law - University of Florida, Levin College of Law, USA, Gujarat
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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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