Litigation in India has not yet reached its heights in proportion to its huge population and their un-enforced rights. Citizens are put to loss on several counts including en masse violation of their rights by fellow citizens and state agencies, observes Professor Madabhushi Sridhar
The governmental irresponsibilities and their rampant negligence are the real sources of severe losses to general public. In fact, every crime should give rise to claim for civil damages under tortuous liability. The tort litigation did not take off in India, except defamation cases to some extent. Hence, the docket explosion with three crore plus cases in Indian judiciary, though highest in the world, is still not reflective of real rights-violation situation prevailing now. The figure ‘three crore’, represents people, who reposed in court system, despite inherent deficiencies and delays. Most of the people do not come to the court fearing the delay, thus, pendency can be understood as one of the important reasons for not raising claims and litigations, besides illiteracy, non empowerment, lack of consciousness, poverty and fear of retaliation.
First finger for this pendency is to be raised against the ‘State’ and its egoist officers, who have no concern for problems of people. Their irresponsible and inefficient actions causing loss, corruption at the instance of opposite party, compelling the common man to take recourse to ‘law’, which ‘takes its own course’ without reaching destiny of ‘justice’ within ‘reasonable’ time. None in the system, including the Law Minister or the Chief Justice of India (CJI) or the Chief Information Commissioner, would have enough guts to answer client’s question, “When my case would be disposed off?”
Neither the police nor prosecution act efficiently to complete the investigation while criminals manipulate with bribes to delay the process. Following a sensational crime incident, the police arrest and produce the ‘accused’ before media to telecast the live ‘confession’, to establish their prompt efficacy, and thereafter leave the case to ‘pressures’ and ‘pleasures’. By the time ‘charge’ reaches the court in much bruised manner, it lies over there in the dockets or fails in witness box or ends in ‘acquittal’ for lack of evidence.
While lawyers with good case press for trial, those with bad case use all tactics to delay. A clever lawyer is always superior to an intelligent advocate in manipulating the court system to suit his client’s vested interests, which offers attractive pecuniary benefit to many, including him. Another important factor that kills the criminal case is collusion between the investigating police and investing criminal. If the case is of murder, ‘dead’ is relieved, if it happened to be a rape case, the victim suffers another assault by uncaring or corrupt prosecutor, senseless and sensation interested media, unsympathetic relatives and others, who (including judicial officers) make routine application of law. Any other surviving victim of crime is in no better position.
Unfortunately, the court of law is at the receiving end, either for delay or acquittal, in spite of ‘confession’ by the accused. In the process, image of judiciary suffers, which has no mechanism to come out of this jargon. Besides, it suffers from its own problems like lack of infrastructure, efficiency, up-dating, heavy workload, need of complying with disposal rate and of course the common issue of honesty.
In civil cases, the State bureaucracy is the main culprit, who pits State’s money and machinery against an ordinary man in legal battle, either with its indecision or wrong decision, for deliberate, negligent or corrupt reasons. The Code of Civil Procedure, 1908 mandates two months notice to the concerned department head before a citizen sues them for a civil remedy. Notice is served so that the officer addresses the question and resolves the issue without driving the ‘victim’ to the court of law.
Notices lie on the desks with routine and common endorsement threatened suit awaited’. It happens in the rarest of the rare case that any officer responds to notice and conciliates the conflicting interests. In fact, the State behaves like a cantankerous litigant and the litigant is in reality a victim. Where does the blame game stop – with the ‘State’, ‘court’ or ‘common man’?
The current 12,000 pending cases in the Delhi High Court will be dealt with more speedily and efficiently, once the whole system is fully digitalised. Service of summons, notices and warrants would be sent through email via the Internet. Online payment of court fee and process fee will also be put in place. Moreover, to make the judicial system more efficient, evidence will also be recorded digitally. Online exhibits will be far clearer and of better quality, especially maps, photographs and counterfeited trademarks. However, shortage of judges is not the only problem in huge backlog of cases. At times, witnesses also do not appear and sometimes lawyers are busy in other cases. The main problem is funding. Ironically, some courts in Patiala House are being run in toilets. Only 0.027 per cent of GDP is spent on judicial infrastructure. However, in Delhi, the situation is better with 0.14 per cent.We need to devote at least four to five per cent of GDP to the infrastructure.
With this huge population, it is absolutely impractical to assess that the strength of 16, 685 judicial officers all over the country would be capable of resolving three crore disputes of 100 crore people. The judge-people ratio in India is far less than the poorest countries in the world.
Docket explosion in India has many causes and thus, has delayed the delivery of justice. In every session of the Parliament and in State assemblies, various legislations are passed without taking into consideration the judicial impact thereof. It is suggested that along with every piece of legislation Judicial Impact Assessment (JIA) has to be conducted, in order to see the likely workload, which may be added to the docket. And, accordingly by way of financial memoranda to the each Bill, provisions have to be made for creation of additional infrastructure and appointment of additional judges to deal therewith.
In the absence of such exercise, the existing courts have to deal with the additional workload of cases with the same infrastructure, which is already creaking. Besides, we have to simplify our Victorian vintage procedural Codes, both civil and criminal. In no case, more than one appeal should be provided in the system. Today, it is possible to reach a matter originating in the lowest court of the civil judge up to the highest level namely, the Supreme Court of India.
Thus, this four-tiered judicial hierarchy is only reflecting lack in discipline and panic in our judicial delivery system. It is culpable to permit a matter to traverse four different stages in our judicial system. Superior courts namely high courts and the Supreme Court should not exercise these extraordinary jurisdictions in ordinary manner and interference with interim orders should be avoided.
In one suit, one finds various offshoots by way of revisional excursions, making legislation a luxury for the rich and a curse for the poor. There is an imperative need to increase the number of judges and to improve the infrastructure. However, it is futile to talk about additional judges when the existing vacancies are lying vacant. To begin with, all vacancies at all levels must be filled at the earliest. After the second judges’ case, the power to appoint judges lies with the judiciary, as it has been taken away from the executive. So the collegium is responsible for the vacancies to remain unfilled. Judiciary itself should be blamed for this. Collegium system should be abolished. Judges should read briefs beforehand so that frivolous cases are not admitted and are dismissed at the outset. For this exercise, law researchers can be attached with the judges to prepare the briefs. E-governance should be introduced in the judiciary to reduce the paper work and to make the process more expeditious and more accessible. So far, judiciary has remained away from the e-projects
While not increasing number of posts can be attributed to scarcity of finances, the non-filling of vacancies ranging up to 3000 is because of lethargy and lack of reasonable estimation. In the higher judiciary, approximately 886 posts are vacant as of now. The machinery knows in advance that a particular judge is going to retire or some number of posts to be vacated, but no substitutes are appointed by that time, thus, making litigants suffer. Is State not responsible for this situation?
None understands why each and every case whether civil or criminal, takes several rounds in the route of high courts and the Apex Court at different phases and comes back to the original place for ascertaining the ‘truth’ or establishing the guilt or liability. In a criminal case, the other party exhausts all means of getting the charge quashed, the moment it is framed. A civil case is not differently destined; the other party asks higher courts to delete his name from respondents. In many cases, it is done.
The bureaucratic machinery fights a common man until the Apex Court, and they happily travel to Delhi, many a time, at the cost of public exchequer to deny the results of a favourable order, given and confirmed by courts below. Some ‘babus’ develop vested interests in litigation and enjoy vicarious pleasure in making ordinary citizen suffer the ordeal of trial.
Law can guarantee rights and procedure and create a method of approaching and achieving justice. However, dynamics involving inhuman bureaucrats, unscrupulous lawyers and ununderstanding judges deny everything. An average man feels sandwiched between delayed and denied justice on one hand and hurried and buried justice on the other.
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