With great pain from the bottom of my heart, I have been writing this article. I have got great respect for legal profession, legal professionals and Indian Court System. I have had the privilege of reading some of the land-mark cases like ‘breach of legislative privilege case’ where late Shri H.M.Seervai has argued infavour of legislative privileges over judicial intervention etc. Higher Judiciary in this country has played a significant role in protecting the democratic institutions and Human Rights. Every law student studies plethora of land-mark cases of the Supreme Court dealing with Human Rights or Fundamental Rights as guaranteed under Part-III of Constitution and as to how little distinction is maintained finally between the Fundamental Rights as enshrined in Part-III of the Constitution and Directive Principles. Everyone knows the basic concept that the Fundamental Rights can be enforced by Constitutional Courts under Article 226 and Article 32 of Constitution of India while Directive Principles can not be enforced. However, the Courts have expanded the scope of Part-III of Constitution and ‘Right to Life’ has been given a different interpretation rightly from to time to time. Concept of ‘Public Interest Litigation’ was developed and the Courts in this country have delivered land-mark judgments in public interest. There could have been some criticism about ‘judicial activism’ and judicial over-reach into executive domain, but, we can not forget the role of Higher Judiciary in this country. There was lot of discussion in the relevant judgments by the Supreme Court of India while dealing with the issue of ‘donations’ being collected by the unaided private colleges in this country. Most of our first generation leaders in this country after independence are lawyers and we can not forget their role in building the institutions and in building the nation. Public used to give lot of respect to the legal professionals in the past and it is getting slowly degraded. Court system in this country is not satisfactory and improvement is not taking place despite constant uproar. People are not happy at the way in which our court system functions at all levels now. Our court system seems to be working to the satisfaction of criminals in this country though we can not down-play the role of well established criminal law concepts which can also possibly be re-written in the near future.
We have been discussing about the issue of ‘judicial appointments’ and there is an argument in favour of ‘Judicial Standards and Accountability Bill’ on the one hand and some talk about National Judicial Commission. We have been hearing only arguments and nothing is happening. Talented lawyers are not coming into judiciary at the Higher Level especially and the Government or the Judiciary is not able to find right kind of people to get appointed to the post of High Court judge. The Government argues that there is a shortfall of talent resulting in slow judicial appointments. This country has discussed ‘Lokpal Bill’ for a long time making fool of everyone and everyone knows that nothing happens in a system which is completely rotten. While Parliament is the law-making body in its domain, little discussion is seen in Parliament on the issues concerning the people. Court system is a failure in this country, but, no one raises this question in the parliament and no concrete steps are being taken to address this problem. Even if it is taken, it is very unfortunate to say that, people speak in Parliament to expose their oratory skills and for scoring debating points. Important legislations and amendments to the existing legislation get passed in this country with little or no debate. Media in this country forces the political parties to take-up issues and in many cases, political parties ultimately end-up raising issues in-line with the so-called media expose.
I would never like to put my country down and every Indian feels very happy if India becomes a super power or most influential country in the world soon. I don’t know as to how an economy which is third largest (PPP terms), can ignore its court system or the issue of contract enforcement even if the issue is seen from a pure business point of view. How is it great even if India becomes a largest economy in the world when the rights of the common man are not protected by law? I don’t understand the logic. Yes, it is true that the common man in this country can question the State Government and the Central Government and also can raise the issues of public importance though ‘Public Interest Litigation’ under Article 226 and Article 32 of Constitution of India. With great respect to judges and judiciary, if there is a judge who can understand the concerns of the common man with right kind of perspective and sensitivity, then, the common man may be able to get some relief from Court though implementation becomes a big problem. Even if any public spirited person or lawyer is able to get some land-mark judgment from the Courts, the Government can easily file a Writ Appeal and can take the matter to the Supreme Court and also to the larger bench in some cases. Review can also be filed at each stage and, how so ever a spirited a person is, he looses the battle and interest to fight with this kind of system. Yes, there is a serious issue of judiciary stepping into the executive and legislative domain, but, a great balance is sought to be maintained in our system and a judge of High Court or the Supreme Court is supposed to know as to how to maintain this balance and the need of protecting institutions unlike what is happening in the countries like Pakistan where the judiciary can order the arrest of Prime Minister.
At the level of High Court and the Supreme Court, the judiciary may be working well comparatively though people complain of degradation of standards at Higher Judiciary also. There is an allegation that a particular lawyer or the Senior Advocate gets enough time and support before a particular judge or Court while others are not taken seriously irrespective of merits in his case. Looking at the opinions often expressed by the so-called senior advocates, I do strongly believe that all the advocates are entitled of a fair chance of hearing before every judge of the High Court or the Supreme Court. It is quite understandable as to why judges give respect to some lawyers or Senior Advocates and it can be because of the standing and the knowledge of that particular lawyer or the Senior Advocate. But, people now complain about different kind of recognition and this rule of recognition is not known to anyone or people are not intelligent enough to understand the rules of recognition in courts now-a-days. With all its issues, I do strongly believe that our Higher Judiciary is still good and if certain issues are to be corrected, corrective measures can easily be taken.
But, the problem comes with the lower judiciary. Innocent people and genuine litigants are afraid of our court system; and many say that our court is suitable only to the wrong-doers, criminals and habitual litigants. One has to wait for almost 15 to 20 years to see finality in any civil dispute as the matter can go from the lower court to Supreme Court. It is quite possible, that the related appeal can get stuck in between at times. On the criminal side, criminals can very easily get bails and there can be expert lawyers in getting bails. I am not arguing against Bails at all as it is the basic criminal law principle that a ‘person is presumed innocent until found guilty’. In a system where police can book false FIRs, no one can possibly argue for the reversal of well settled criminal law principles like ‘accused is presumed innocent until found guilty’ and ‘need of proving an offence beyond reasonable doubt’. Even on the criminal side, as law and order becomes increasingly election issue as middle class or working-class can not live in constant horror and amidst rowdy elements; the state may be forced to deal with the anti-social elements as a necessity. Now-days, than the anti-social elements or rowdies helping the political class in electioneering or campaigning, strong/educated/working middle class plays a significant role in the success or failure of any political party in elections. We may have to wait for some time to see the real change, but, I am sure that we will see a great change in Indian election system and trends very soon. Now the major problem for the clean and educated candidates to fight for elections in this country is that they do not command a great community support, may not get the required support and exposure from media; and may not be able to spend all the money required for campaigning, maintaining people for doing arrangements and buying votes. As Indian economy grows, as the literacy rate keep increasing, as the working class grows, as the caste influence takes a back-seat and as everyone accesses the technology through broadband, there will be a change in the political system also. But, to see real change, we need to wait for another 10 to 15 years.
Coming back to the issue of lower judiciary and especially civil courts in this country, the system at present works as follows:
1. Substantial amount of court fee is to be paid for filing a suit apart from legal expenses. Even if there is an exemption in paying the court fee in the Court fees act, the suit may not always get numbered easily and it has become like a great art in getting even a simple suit numbered in this country in our highly corrupt and rigid systems.
2. Our Civil Procedure Code, 1908 is very detailed. Any number of interim applications can be filed by the Plaintiff and also the Defendant. Our judges at the lower judiciary are experts as to how to handle a case and all the respect to the committed judicial officers or the judges. It has become very rare now-a-days to see committed judicial officers or the judges. With the total collapse of human principles in the society and system failing at each time, even the judicial officers may be feeling that it is not prudent to be a good guy and good guys always come last everywhere though it is the saying with reference to our ‘political system’.
3. An order on an adjourned petition can also be challenged in our system through Civil Revision Petition under Article 227 as these kinds of orders are not appealable under C.P.C.
4. An interim order passed by a Civil Court in a Civil Suit can be dragged or taken to Supreme Court. With this kind of system, only rich can get his point right as the weak can not fight with our system involving huge court and legal expenses. Rich can spend money and also can employ great law-firms and lawyers.
5. Though a Second Appeal is maintainable in Civil Cases on a ‘question of law’, according to me ‘no one cares about question of law etc.’ and Second Appeals are casually drafted, filed and entertained by the Courts also. Disposal of a Second Appeal is not always easy and it takes time.
6. If the judge wishes, condone delay applications can be entertained and allowed by ordering some minimal costs at any stage in the matter.
7. Legal professionals with actual experience with functioning of ‘Fast Track Courts’ can comment as to how our ‘Fast Track Courts’ function in this country.
8. Execution of court orders is a very big thing in this country. For getting the court orders executed, one has to manage the people concerned in the Court system and then, everyone knows as to how police functions if the execution requires police assistance.
These are very few issues about our civil court system at the lower level in this country and I am confident that I am right largely though in some parts of the country, the system may be functioning well due to very low rate of filing. Even if the lower court in some area in this country functions well, then, there is First Appellate Court, Second Appellate Court or High Court and Supreme Court is also there. So, there is nothing to worry in getting justice or delaying justice if the litigant chooses to delay justice. In legal circles, there used to be much talk about ‘art of cross-examination’ etc. In future, there may not be any need of examination and cross-examination in courts in most of the cases unless judge decides to get a particular point proved or established through examination and cross-examination. There is a need to re-write our procedural laws and I don’t know as to when and how it happens as we see discussion about a simple ‘Judicial Standards and Accountability Bill’ for a considerable time.
I don’t believe that a common man can get justice in this country through courts if he is encountered with a relatively strong opponent. I am very firm in my opinion in this regard. Its not about poor people and uneducated, it is the case even for the highly educated middle class or even the highly educated rich at times.
Only because of this system, now-days, people are afraid to come to courts and even talented law-graduates are not interested to take-up court practice. Who wants to waste their time?. If there is any dispute, then, the common man waits, discusses and thinks of ways to get his dispute settled using all options and its rare to see genuine public approaching courts with a genuine case. As far as the young law graduates are concerned, it is worth for them to work in law-firms assisting rich, corporates and it is worth to focus on Tax-law practice, IP Law practice and corporate practice. These young law graduates may find it worth to follow the court judgments on a ‘taxable item’ or ‘exempted item’ in our tax laws and may find it worth following the notifications and clarifications from the Departments from time to time. We can not find any fault with our talented young law graduates for not coming into court system especially at the lower level. Privileged law graduates and law graduates with established legacy may inevitably choose to continue their practice or may focus on a particular area of practice before the Company Law Board, Tax Tribunals, High Court and Supreme Court. Many ends up assisting big corporates in their legal departments and its easy, safe and worth for the talented lawyers as they will have their own personal life to look-after. These young people can not be expected to do sacrifice for the society and even if one expects, nobody cares now-days where money matters.
The law graduates of so-called prestigious institutions should have been a great pressure group in bringing the right kind of legal reforms and in bringing the required changes in our legal system. They do have social responsibility. While some senior advocates may be help-less, lot of so-called senior advocates can contribute so much for improving the court system in this country as they are also influential in Bar Associations etc. It is understandable if a lawyer who is not so-privileged finds excuse in discharging his responsibility towards the improvement of profession and system, but where is the justification for all the big lawyers charging huge hearing fees and with an established corporate clientale. No-one seems to be thinking about the system, too much politics and too little work towards the improvement of the system and if few are really bothered at the system, they are being marginalized.
I don’t understand as to why this Court-fee mechanism is still not reformed. Why can’t all the suits valued below 50 lac or 1 crore be totally exempted from court-fee in this country and so that the common man get his rights protected through courts rather police and anti-social elements through well-known panchayats through-out the country. This kind of court fee reform can help the legal professionals also and it will contribute to improvement of standards in legal profession automatically. There can be an argument that if the payment of court-fee is totally relaxed, then, the courts can be flooded with all kinds of false litigation. If that is the worry, then, the law can provide upto 20% of the suit amount as a penalty for filing false cases and in the absence of payment of fine, simple imprisonment can also be prescribed. In any case, such argument is also untenable as only minimal fee is paid in Consumer Courts where the consumers can ask for a very heavy compensation and can create problems for the doctors in medical negligence cases. In-spite of all the chances of misuse, we have got consumer courts functioning in this country fairly well. If we can have simple procedure of adjudication before Consumer Courts, why can’t the same procedure be prescribed to the Civil Courts also and why can’t we completely abolish the provision for ‘Second Appeal’ in civil cases as enough safe-guards are provided in ensuring right kind of justice through Civil Revision Petitions in non-appeallable orders and Civil Revision Petitions under Article 227 for ensuring that the lower courts do what is required to be done legally and avoid unwanted omissions and commissions. Why can’t there be Supreme Court benches in various parts of the country, at-least in respect to of certain category of cases and the required reference to the larger bench can go to Delhi and the jurisdiction in dealing with Constitutional Matters can be retained in the principal bench of the Supreme Court at Delhi. Why can’t we improve standards in our government law and other private law colleges in this country?. Why can’t we attract best talent to the judiciary?. Why can’t we computerize the courts in this country with real intent and intent to implement the e-governance in Courts at all levels.
This country should know first as to how much revenue government gets through receipt of Court-fees in each year. I don’t think that hundreds of crores are received by the Government through court-fees and in such a situation, greater relaxation can be given to the common man. It will improve the law and order situation and public gets confidence about protection of his rights in the society in accordance with law. If State Governments through-out the country and central government spends thousands and even lakhs of crores on a variety of issues producing no visible results, why can not some revenue be forgone from the court-fee receipts from the middle-class people or common man and why can not the government make some little more provision for justice delivery system?. This is only about one societal issue and its about court system. I do know that it is not easy to correct our court system given the politics and as to how our democratic system functions. However, nothing is impossible and if there is a will, this society can see very dramatic and useful changes in every system and especially court system.
Increasingly, even the matters of public importance are getting politicized. When the matters of public importance get heavily politicized, then, the chances of getting the required reforms in the society get reduced. Politicians are masters as to how to pick-up the loop-wholes and too much politicization and partisan approach of public interest issues, hurt the society as a whole and it can hamper the INDIA’s way in becoming super power in the world or one of the most influential countries in the world.
With our court system, there is no much problem for the rich and corporates as they have got company law boards, Tax Tribunals and they know as to how to get justice and choose ‘Alternative Dispute Resolution Mechanism (ADR)’. Instead of finding the ways to make our court system effective, it is unfortunate to note the views of many eminent lawyers and even the judges asking the public or the common man to prefer settlement of disputes and explore the alternative ways of dispute resolution like mediation and lok-adalats. If the litigants are happy to approach mediation centres and lok-adalats, then, there is no problem, but, this system can not force the common man to compromise his rights forcibly and by making suggestions that the court system is cumbersome. If this kind of argument is taken forward, then, it implies that we are in the process of disbanding our entire civil court system.
I am of the firm view that there is nothing that can not be changed in INDIA. But, unfortunate to say, useless and petty political issues occupying the public space all the time; real issues of social importance get side-lined. Many of the important legislations are getting passed without any kind of debate. We are sending big land-lords, business people, media barons to Parliament and Assembly and they may have little time to concentrate on the matters of public importance. Through exposing their intelligence in discussions, they will justify their presence in Parliament. If we don’t address certain simple systematic issues, then, I am sure that even 15% consistent GDP growth also can not make INDIA really strong and inclusive. With the growth, rich may get much richer and there will be growth in the middle-class with no savings and if the system is not suitable for the rich, they can chose to shift their residence to the developed world like U.K and America.
INDIA is in a critical phase and there is a need for progressive politics in this country and only through progressive politics, we will be in a position to find solutions to the problems like our Court System.
It is unfair on the part of the rich and privileged to neglect the society. If everyone competes for money and status, then, the privileged should remember that the same people fighting for the common man can beat everyone in the country in making money and getting status through dubious means. Its not a great rocket science always. This will lead to getting the society destroyed completely. We will be having buildings, roads, bridges, factories, MNCs, big companies, luxury cars, private jets & helicopters but, there will not be system left for the survival of poor and common man, and they will fight-back with the language known to them with the extreme distress.
If Government says that for addressing current-account deficit, oil prices are to be de-regularized as it can not say that too much usage of oil should be discouraged, there are politics on this. Inflation is a political hot-potato without addressing as to how inflation can effectively be controlled. What is wrong in saying that there is too much black-money in the society, rich are getting richer and this lack of proper regulation of our finances gradually leading to constant inflation affecting the savings and in-turn, investments in the country. People talk of environmental laws for discouraging the setting-up of manufacturing units; and if that is the case, why can’t specifics and solutions be discussed. Though our public financial institutions/Banks do a great job, with the intent of infusing greater funds into the Banks, some reform measure was brought-in in the recent past I think. This measure should have been discussed with the long-term consequences though it can very easily be understood that we need many Big Banks rather Small Banks with little capital and leading-up to a situation of complicated consortium arrangements to lend money to the corporates. But, these important measures are getting passed with minimum or little discussion in Parliament with all the due respect to the Parliamentarians and Parliament and the rights of the Parliamentarians to do whatever they want freely in the House. It seems that even if country is sold, no one will concentrate and raise their voice as such and few people joining together can do anything in our system; and many political parties and politicians are busy in their discussions and issues thinking of un-known electoral benefits. Even the communists maintain consistency in raising the issues of employees working in Public Sector Organization and Government and if they claim to be the only honest political out-fit, they should have the courage to tell the Government employees to be responsible and to work more rather giving frequent bandh calls. Nobody cares to tell the employees as to what they should do, due to politics and due to lack of consensus among political parties as to what is good for the society. If we look at the ordinary young people working in various private organizations, they get little salary in comparison to the people working in Government and Public Sector Organizations and even then, they are not complaining and thinking about their increments, changing the company for better opportunities and these people are worried about growth and closure of industry due to power-cuts and export barriers. Our system has become like this and if we don’t wake-up now, I am sure that we are heading to a serious crisis in the coming days and INDIA will suffer. Even if we forget the issues of corruption and political funding to a greater extent as everyone knows these issues, our system can be improved in many areas. Too much politics and competitive politics unconnected to what the common man thinks and societal good, is preventing the country in becoming stronger. It should be a great miracle for the entire world as to how INDIA has progressed with all these issues and still progressing.
In this article, though I have commented on few political issues, those are closed connected to the issue of many systematic reforms including reforming our Court System/legal system.
Simple procedural laws, cost-effective judiciary, speedy justice is in the interests of the legal professionals and also common man. With the kind of Bar Association or Bar Council politics, few may be raising voice here and there even opposing the well-intended reforms, but, I am sure that now we have reached a situation where the Government should implement the reforms irrespective of so-called agitations. I don’t believe in any agitations from the legal fraternity as such for the right kind of legal reforms. This system certainly requires a very major surgery as other-wise, our court system will further goes-down and becomes un-repairable.
Note: the views expressed are my personal, with all the respect to the judges, courts, legislators, Assembly, Parliament and views are expressed in public interest with my little exposure and knowledge and I may be wrong in my views also.
Author:
V.DURGA RAO, Advocate, Madras High Court.
Email: vdrao_attorney@yahoo.co.in
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