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How slow a process should litigation be? Should it keeping jumping from court to
court? Litigations should not be perennial. The reason one goes to court is to
get justice, and "Justice Delayed is Justice Denied"
Unfortunately the judicial system in India is based on Evidences and facts not
conscience or morals, so it should be easier, once having the facts at hand, all
it needs is argument and hearing and quicker pronouncement of Justice. A
judicial system that cares only about evidences and facts shouldn’t worry about
taming the souls of the plaintiff and the defendant with time rather give
justice as quick as it can, this delay/denial of justice leads to increasing
"Out of Court settlements" which are cheaper and quicker thereby leading to the
loss of trust in our Judicial System.
The judiciary is part of our democracy and all its implications must be imported
into the judicial process. Once we accept the proposition that in a democratic
society the court system plays a crucial role in seeing that neither licence nor
absolutism becomes dominant, the difficult tasks of the court vividly stare us
in the face. As Chief Justice Burger has noted: "A sense
of confidence in the courts is essential to maintain the fabric of ordered
liberty for a free people and three things could destroy that confidence and do
incalculable damage to society: that people come to believe that inefficiency
and delay will drain even a just judgment of its value; that people who have
long been exploited in the smaller transactions of daily life come to believe
that courts cannot vindicate their legal rights from fraud and over-reaching;
that people come to believe the law - in the larger sense - cannot fulfill its
primary function to protect them and their families in their homes, at their
work, and on the public streets".1
Constitution which mandates that the state shall secure that the operation of
the legal system shall promote justice, on a basis of equal opportunity and
shall ensure that opportunities for securing justice are not denied to any
citizen. The Judiciary is bound to shape the processes of the law to actualize
the constitutional resolve to secure equal justice to all. A people who are
illiterate by and large, indigent in no small measure, feudal in their way of
life, and tribal and backward in large numbers, need an unconventional cadre of
jurists and judges, if equal justice under the law is to be a reality. If there
is breach, judicial power must offer effective shelter. Even if a legislation
hurting or hampering the backward sector is passed, the higher courts have to
declare the statute void, if it be contra-constitutional. In sum, the judicial
process, in its functional fulfillment, must be at once a shield and sword in
defending the have-nots when injustice afflicts them. And this must be possible
even if the humbler folk, directly aggrieved, are too weak to move the court on
their own and a socially sensitive agency advocates the cause. Securing justice
- social, economic and political to all citizens is one of the key mandates of
the Indian Constitution. This has been explicitly made so in the Article 39-A of
the Constitution that directs the State - to secure equal
justice and free legal aid for the citizens. But the experiences of last
57 years show that the State has failed squarely on addressing some very basic
issues--quick and inexpensive justice and protecting the rights of poor and the
vulnerable. The justice delivery system is on the verge of collapse with more
than 30 million cases clogging the system. There are cases that take so much of
time that even a generation is too short to get any type of redressal.
That it will take more than 300 years to clear the backlog of cases in Indian
courts is proof enough that our criminal justice system is sick, stagnant and in
urgent need of a complete overhaul. A committee was set up, a couple of years
ago, under Justice V S Malimath to examine changes and its report came,
coincidentally, at the time that justice was finally done in the
Uphaar Cinema case and just before the fourth anniversary,
Jessica Lal’s horrific murder. Both cases draw
attention, in different ways, to the glaring flaws in our justice system.
In the Uphaar case it is shocking that it took six years to establish that the
59 people died because of criminal negligence on the part of the cinema
management and the Delhi government. It was clear from day one that nobody would
have died had the cinema followed safety rules but because the wheels of Indian
justice move at the pace of our national vehicle - the bullock cart - it took
six years for justice to be done. And, if the Ansal family and the guilty
officials decide to appeal it could be many more years before justice is really
done.
In Jessica Lal’s case the situation is even more
tragic because justice may never be done. She was shot dead in a Delhi bar in
full view of several people. It was on the basis of their statements that the
police built their case against Manu Sharma and he, himself, fled the crime
scene and remained on the run for days, something he would have been unlikely to
do had he been innocent. But, as time went by, witnesses to the murder suddenly
became unable to identify him as the killer so he is already out on bail and
will probably remain free and go on to a long and successful career as a
politician.2
In a democracy, the courts belong not to the lawyers and judges but to the
`citizen', as Jerome Frank wrote. Once we accept
this democratic dimension of the Judiciary, the rule of law gains a
philosophical elevation. The highest is not above the law; the humblest is not
beneath the law. The true conception of the administration of justice is that
the lowly concern of the least person is of the highest consideration to the
state and the court.3
Justice delayed is justice denied, is an old but wise saying. Why has this delay
happened and how this delay could be tackled are the questions of hour? Who
is/are responsible to this state of affairs is also not an irrelevant question?
On doing some practical and theoretical research at this problem, I found some
reasons and their solution of this state of affairs. I would like to discuss all
the reasons one by one in order to their gravity and thereafter, would suggest
some solutions to overcome these problems.
Causes Of Delay:-
The first and the biggest problem is of the delay in disposition of cases.
Due to huge pendency, the cases take years for its final disposal, which would
normally take few months time. The arrears cause delay and delay means negating
the accessibility of justice in true terms to the common man. The very core of a
civil society and rule of law is the provision of justice, but the decision must
be delivered within a reasonable time. It is totally unfair if a suspected
criminal waits for trial for years and is ultimately found innocent. Similarly,
the victim of the crime will be also not satisfied if there is no punishment to
the criminal for so long. Only speedy justice could ensure effective maintenance
of Law and order. Quality of justice not only promotes peace in the society but
also strengthens internal security of the country. There are number of
litigations which could be avoided if Govt. officials had taken interest, for
e.g. section 80 of CPC require a prior notice of two months to Govt. by a party
who wish to sue the Govt. The purpose of this section is to give time to Govt.
to settle the matter with such party by taking proper and suitable action, and
thereby could avoid unwanted and unnecessary litigation. But the utter failure
of Govt. official in taking a quick, bold and suitable action inspite of giving
time forces a person to file case.
Strength of Judges are inadequate according to population and bunch of
cases. As of January 2005, pending cases in the Supreme Court number
30,000, in high courts over 33.79 lakh and in subordinate courts over 2.35 crore
- a totally unacceptable situation. Much of this is due to shortage of judges.
The ratio of judges to population is 10.5 to one million, the lowest in the
world. Even this low level is not reached because of the accumulation of
vacancies in the Benches -140 against the approved strength of 668 judges in
high courts and 2000 against 15000 in subordinate courts.4
The infrastructure of the lower courts is very disappointing.
Though, the Supreme Court and High Courts are having good infrastructure but
this in not the same position with lower courts. The Courts have no convenient
building or physical facilities. The executive has failed to provide necessary
infrastructure to enable judiciary and function normally. Good library,
requisite furniture, sufficient staff and reasonable space are the need of the
qualitative justice. In some courts security systems is also not good. The legal
profession is one of the most struggling profession but no social security
scheme is available for lawyers, some financial aid should be provided to Bar
associations or the new beginners by the government. The good working condition
of the lawyers would help in the excellence of service and qualitative justice
to the litigating public.
Competency of the Other Staff in Court : It should also be kept in
mind that not only Judges and Advocates be competent but also the administrative
and clerical staff. The clerical staff must be free from all type of corruption.
This is the era of computerization. The highly technical and competitive
clerical staff will also help in speedy course. We all know how much time is
taken in getting merely a copy of the judgment? It is hard that money is used to
speed up the process. The bribe giver does not wish, to get anything done
unlawfully, but merely wants to speed up the process of movement of files and
communication relating to decision. Certain sections of staff concerned do work
only after taking money.
Investigative agencies generally delay : the investigation of
crime It is generally heard that the accused gets bail as the investigating
agency failed to submit charge sheet within statutory period. The combination of
several functions, such as crime investigation, riot control, intelligence
gathering, and security of VIPs by a single police force has a devastating
effect on the criminal justice system. Nowadays, the crime investigation is not
immune from the partisan politics. The power of the government to drop criminal
charges against the accused has further abused it. The lethargic police
investigation is also a ground of slow process of law.
Remedies To
Overcome Delay (Suggestions):-
There is need to establish more courts and to increase
number of judges according to population. While the population of the
country and the number of cases has increased manifold, the judgment services
appears to be understaffed. Same is the position of the courts, where number of
courts are less in comparison to the need. As it is estimated that India has,
only about II Judges per million population, which is among the lowest ratios in
the world. Obviously, there is an urgent need to increase the number of judges
specially at the local level for giving access to the ordinary people.
It is needed to
establish a body at national level composed of Judges, Lawyers and Legal
academics, which should be charged with a duty to conduct examinations for
recruitment to Indian Judicial Service (IJS). Article 233 will have to be
amended to confer power on the president to appoint members of Indian Judicial
Services on the recommendation of National Judicial Service Commission. The
creation of Indian Judicial Service is appeared necessary to get best available
talent in the country.
Though, already
a demand of establishing large number of ordinary courts is pending, yet special
courts have its own importance. In developing countries the corruption is
growing like cancer and unless cases are taken up and decided early, the disease
will spread further. The special courts and prosecuting agencies may be
appointed to deal with cases of corruption and cyber crimes. The beginning may
be made in Delhi and other state capital where the number of cases is highest.
There is urgently need
to imporove the basic infrastructure and management of resources. Modern
technology and use of computers could also increase the efficiency of the court
system. The judiciary has also to learn management techniques through training
at all levels. Though, the Supreme Court and High Courts are having good
infrastructure but this in not the same position with lower courts. The lower
courts are the basic institution of justice and to improve the quality of the
justice dispensed with, it is necessary to improve their infrastructure by
modern technology. Lack of funds should not be allowed to enter in the way of
development of infrastructure, as external security is necessary, internal
maintenance of law and order is also necessary for the internal security,
national interest, peace and progress. In general budget certain handsome amount
could also be allocated to judiciary like defence and education or a separate
judicial budget should be placed, like railway budget. The panel of government
lawyer should also be on merits not on the basis of nearness to ministers. As
the government is the largest litigant, more transparency is required on their
part. Govt. counsel should be selected on the basis of merit, efficiency,
integrity, by some transparent manner. There should also be some permanent
vigilance provision to observe the working of the public prosecutors. Security
system in courts also needs improvement for proper confidence of people and
fearless functioning of system. Information-counter should be set up in every
court for the convenience of litigating public. .
Our criminal justice system has the urgent requirement of
Independent Investigative Agency. Delay in police investigation is also
one reason due to which cases linger on for years. It is, therefore, good to
create an independent wing of police force, fully in charge of crime
investigation, and functioning under the direct control of independent
prosecutors. That wing should be accountable to judiciary and not to particular
government of a time. The practice of torture and third degree methods, extra
judicial execution in fake encounters may be stopped also when crime
investigation machinery became accountable to judiciary. Such type of police
wing also became knowledgeable about the type and method of the evidence needed.
Hence, baseless cases, which lead acquittal, also could come down. So, there
should be co-ordination between police and prosecuting agencies. The early
disposal of case also boosts the morals of police force and will save time,
which would have been taken in producing arrestee to the court Horn time to
time.
We have inherited British legal
system, Britishers prescribed it at that time, without considering the need of
Indian society nor did they consider the practicals of the procedure. So, this
system is drawn from different sources without seeing the ground realities. Some
people today prefer to keep quiet, rather than go to the court of law. So, now
this system is more Indianised for making it fit to society. It is heard that in
ancient time justice system was very good. The disputes were settled on the spot
by delivering justice. But ancient justice proceedings were oral in general and
therefore no much record is available. Now we can take modem know-how from the
countries, which have best justice delivery system by getting acquainted with
the procedure followed there, if fit to Indian society.
The civil and criminal procedure codes and the laws of evidence have to be
substantially revised to meet the requirements of modem judicial administration.
Though most of procedural laws are effective even today but some provision needs
revision, especially the civil laws. To lessen the burden of cases, we may
introduce the concept of’ Plea-bargaining' by decriminalization of those wrongs,
which can justly be dealt with by compensatory remedies (Compensation to victim
like in tort). The institutions involved in justice delivery system such as the
police, the prosecution, the court, prison etc.-requires to be reformed in terms
of organization, procedures, resources and accountability. So that, nowhere
citizen feels uneasiness. There should be time limits prescribed for
adjudication. There should be uniform formats for the appeals and petitions to
make the procedure easy. The judgment should be in brevity and clarity. The
concept like of public interest litigation is always welcoming, which is
affordable to common men. Hence, there is a lot of scope to improve the
situation. For e.g. Section 301 Cr. P.c. should be amended to allow the victim
to appoint a lawyer of his choice in addition to public prosecutor to defend his
case. Similarly, Section 3 13 (3) of Cr. P.C. also be amended so that the
accused would be held liable for refusal to give answer or telling lie. The
victim will be allowed to cross-examine the accused to elucidate the truth.
There must be some fixed time for presentation of written statement, counter
claim and reply like the plaint, under the I imitation Act. After all procedural
law is meant to further ends of justice.
Conclusion
We can conclude from the above discussion
that we should not resort in extra-ordinary hurry-up of cases by whatever means.
As justice delayed is justice denied, similarly, the saying, justice hurried is
justice buried is equally true. Therefore, sufficient, reasonable and due
hearing of every cases with consideration of its circumstances is the necessary
requirement of natural justice and balance of convenience. In fact, the untiring
efforts put by fear and flavorless Indian Judiciary is doing commendable job of
imparting justice inspite of so many difficulties, which created faith of public
in the rule. Of law is a great achievement, which really requires deep
appreciation.
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Foot Notes:-
1.http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2003010700561000.htm&date=2003/01/07/&prd=th&
2.
http://iecolumnists.expressindia.com/full_column.php?content_id=23229
3. Supra Note 2
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Justice Delayed is Justice Denied
More Related Topics:
The author can be reached at :
miglani786@legalserviceindia.com
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