PREFACE
An old and time-tested saying is that if you want to find a sound solution, you have to first identify and understand the problem. Most of the time, we search solutions for a problem without fully knowing or understanding the nature, content and dimension of the problem, and more importantly, the reasons that gave rise to the problem. The purpose of this article, therefore, is to identify and analyse some of the problems faced in justice delivery and attempt some effective solutions to such problems. Some of the solutions suggested may be tentative or general, as their purpose is only to evoke a discussion among the stakeholders to find satisfactory solutions to strengthen the justice delivery system. The figures and percentages mentioned are to be taken as broad projections as they keep on changing.
Some of my views and perceptions may not be in conformity with the views of the Supreme Court, High Courts, individual Judges, State and Central Governments, or members of the Bar or may be unwarranted assumptions. I would be too happy if some or all the deficiencies and problems perceived by me are proved to be unwarranted apprehensions. I will equally be happy if the measures that are being taken by the stakeholders have already borne fruit and yielded satisfactory solutions.
Nothing in this article is intended to cast any aspersion on, or impute any motives to, or make allegations against, any wing of the Government, section of Judges, lawyers, litigants, or others, either as a group or individually. My apologies if any part of this article is considered by anyone to be “preachy” or “unwarranted homilies”.
TABLE OF CONTENTS
I. PRESENT SCENARIO
II. PROBLEMS FACED BY THE JUDICIARY
Problem/Challenge I : Delay-Failure to Render Speedy and Effective Justice
Problem/Challenge II : Inadequate use of ADR processes and plea bargaining
Reluctance of litigants
Reluctance of Judges
Reluctance of lawyers
Reluctance of government (public) servants
Absence of compelling need to use ADR processes
Plea bargaining
Problem/Challenge III : Lack of Access to Justice
Problem/Challenge IV : Maintaining the Credibility of the Judiciary
The uncertainty of outcome
High number of acquittals
Murmurs regarding integrity of Judges
III. STANDARD PROBLEMS AND SOLUTIONS IDENTIFIED IN SEVERAL JUDICIAL CONFERENCES AND WORKSHOPS
IV. SOME FURTHER SOLUTIONS
(A) Role of High Courts
Training Judges
Training the support staff
Supporting and protecting Judges
Effective use of statistics
Effective use of information technology and case management techniques
Making ADR processes, more effective
Regulating the reporting of decisions, to improve the efficacy of precedents
Restricting deputation of Judges to non-adjudicatory functions/assignments
Liberating Judges from legal services
Relief to subordinate Judges from unwarranted pressures, protocols and remarks
Recommendations to the Government
(B) Role of the Supreme Court
(C) Role of the State
Judicial impact assessment
Transferring legal services
Simplifying procedural laws and making plea bargaining more effective
Increasing the use of ADR mechanism
Reducing State litigations
Improving inter-departmental cooperation to reduce litigations
Improving the legal system and legal education
Improving investigations and prosecutions
Plea bargaining
(C) Role of Members of the Judiciary
Improving the potential, capability and efficiency as a Judge
Maintaining the ethical standards
Shifting emphasis from “disposals” to “justice”
Maintaining consistency
Encouraging ADR processes
Courteous behaviour
(D) Role of the Bar
Render proper assistance to court
Protect the reputation of the judiciary
Encourage alternative dispute resolution processes
(F) Role of the Media
Reporting court-related matters
Media trials
V. CONCLUSION
While justice delivery at the High Court and the Supreme Court levels has been receiving attention, the problems faced by the subordinate judiciary do not attract the same attention, even though it is the backbone of the judicial system. They really are the face of the judiciary visible to the common man and weaker sections. They seldom get high profile cases (and when they do, such cases put the dealing Judges to tremendous media pressure). Nor do they deal with public interest litigations. The routine and drudgery of the subordinate courts is not of much interest to media. Unfortunately, even High Courts sometimes tend to treat their work as mere statistics. This article primarily focuses on the state of the subordinate judiciary and their problems.
PRESENT SCENARIO
Indian Judiciary presently has a sanctioned strength of around 35 Supreme Court Judges, around 1080 High Court Judges and about 22,700 lower court Judges for a population of 1340 million. This provides a Judge-population ratio of around 18 Judges per million (as against 50 to 110 Judges per million in developed countries). The sanctioned strength is seldom reached and the judiciary normally operates with a working strength hovering around 75% of the sanctioned strength. Consequently, the actual Judge-population ratio in India is only around 12 to 13 Judges per million.
The total number of cases pending in Indian courts is around 40 million — 34.5 million in trial courts, 5 million before State High Courts and 60,000 before the Supreme Court1. As the operating strength of Judges is around 20,000, the average case load per Judge is around 2000 cases.
All cases, either civil or criminal, are decided by non-jury trials, which means that in every case tried, the Judge has to render a reasoned decision on merits. Except review petitions in the Supreme Court, all cases are heard in open court. All parties are given opportunity to make submissions (oral and/or written) in support of their cases. They are also given opportunity (in cases other than appeals and miscellaneous matters) to produce evidence (oral and documentary).
In and around the time when the country attained Independence, the civil cases and criminal cases pending in courts were in equal proportion. Gradually, the proportion of criminal cases has increased. At present, out of the 34.5 million cases pending in trial courts across the country, only about 9.5 million are civil cases and remaining about 25 million are criminal cases, the ratio being 27 : 73. The ratio of civil cases and criminal cases varies around 13 : 87 (State of Bihar) and around 50 : 50 (in Andhra Pradesh, Telangana, Karnataka and Tamil Nadu).
There are two views as to why the criminal cases are far higher than civil cases : The first view assumes that in States where the ratio of criminal cases is far higher than the civil cases, the citizens are less law-abiding and have less confidence in the judicial system; and the higher ratio of criminal cases is evidence of a higher level of criminal activities and the tendency on the part of citizens to take law into their own hands. According to this view, a higher proportion of civil cases would show that citizens approach the civil courts to find solutions if they have any grievance or dispute, reposing confidence in the rule of law and the judiciary. According to this view, the steady increase in the number of criminal cases and steady decrease in the number of civil cases demonstrate (i) the rapid deterioration in moral values and loss of confidence of the common man in the rule of law and judicial system (on account of delays, uncertainty of outcome, inflexible results, high costs, etc); and (ii) the reluctance of many to approach civil courts for relief, preferring to take law into their own hands or have recourse to extrajudicial resolution process, thereby increasing crimes and consequently increasing the number of criminal cases. The second view is that the common man’s trust and faith in the judicial system remain unshaken; and that the steep increase in criminal cases and decrease in civil cases is due to (i) criminalisation, that is, conversion of several civil wrongs into criminal offences by the legislature [one example is the amendment to the Negotiable Instruments Act making dishonour of cheques a criminal offence (which was earlier a civil dispute) which increased in the criminal pendency by more than a million; and another example is marital wrongs such as domestic violence, marital cruelty and dowry harassment being made criminal offences thereby increasing the criminal cases by several lakhs]; and (ii) tribunalisation as a result of which a large number of civil litigants have been diverted to different quasi-judicial fora such as Land/Revenue Tribunals, Real Estate Tribunals, Consumer Fora.
Out of the criminal cases, the cases relating to offences triable by sessions courts constitute only around 4% to 5%, warrant cases triable by Magistrates constitute 20% to 25% and summons cases constitute the remaining 70% to 75%.
Disputes relating to immovable properties (agricultural lands, urban lands and buildings), family relations, commerce and compensation claims (motor accidents and land acquisition) constitute the bulk of civil disputes. About 80% of the civil cases go to trial and hardly about 20% of the cases get settled at pretrial stage. In contrast, in the United States of America, in spite of the Judge-population ratio being nearly eight times that of India, hardly 10% of the cases go to trial and 90% of the cases get settled at pretrial stage.
Consumer disputes, labour disputes, service disputes (relating to Government and quasi-Government employees and armed forces), tax disputes, company law disputes, insolvency and bankruptcy disputes, environment disputes, telecom disputes are all dealt with by Special Tribunals constituted by the Central Government and State Governments, and are not within the purview of the judiciary. Disputes relating to land revenue/assessment, registration of ownership, survey and division, etc. (other than title) in regard to agricultural lands are handled by the executive wing of the Government. Indiscriminate tribunalisation of justice, by transferring disputes relating to specified subjects from courts to tribunals invested with the power of adjudication and having the trappings of courts, on the premises that such tribunals will be better equipped to deal with disputes under special enactments due to the specialised knowledge and skills of the members of such tribunals, has become a matter of concern. This is because many persons manning the tribunals are found to be lacking in impartiality, judicial temperament and independence (or the specialised knowledge) to render justice, and tend to become extensions of the ministries concerned. If matters affecting economy, environment, direct and indirect taxation, companies, insolvency and bankruptcy, consumer grievances, electricity, telecommunications, armed forces, government servants, are to be dealt with by tribunals manned by persons who lack both judicial and (many a time) subject skills, the question that arises is — what is the future of courts, justice delivery and the rule of law? Unfortunately, the judiciary gets blamed for the unsatisfactory functioning of some tribunals, as the common man proceeds on the assumption that all adjudicating fora are part of the judiciary.
The Indian judiciary has been statutorily entrusted with the following legal service functions under the Legal Service Authorities Act, 1987 (“the Legal Services Act”) : (i) spreading legal awareness; (ii) providing legal aid; and (iii) implementing alternative dispute resolution processes.
The pluralistic Indian society is made up of several religions, several castes and sub-castes, several languages, several regions and several social and economic strata. Arable land is limited. The population is very large. Unemployment is high. By Indian standards, around 25% of the population, that is, nearly 300 million, are below the poverty line. By international standards, nearly 45% of Indian population is extremely poor and 30% is poor. The poorer sections, due to their social and economic backwardness, find it difficult to access justice. Differences, disputes and rivalries based on religion, caste and community are steadily on the increase thereby eroding the peace and fraternity in the country.
Most of the contested cases—civil and criminal—take anywhere between four and five years for disposal. In some category of cases, the period of pendency may go up to ten years. If appeals and further appeals are included, the pendency period for a civil case can be as much as one to two decades and a decade for criminal cases. In some States, due to huge backlog, criminal and civil appeals before the High Courts alone may take one or two decades for hearing and disposal. Indian courts have become synonymous with delay.
Traditionally, the Supreme Court enjoyed the reputation of being the only hope for the country against political nepotism, arbitrariness and injustice. But there is a feeling among the members of the Bar and the litigant public that there is considerable delay in disposal of cases by the Supreme Court. In its initial days, the special leave petitions were being decided promptly either by granting leave or by rejection (which was the result in majority of cases). Gradually, a system has developed where notice is issued and SLPs are kept in a “Trishanku” state for several years (that is, where notice is issued without either granting leave or rejection). Once notice is issued, the cases come up several times before they are rejected or leave granted (of course, in a few cases, the matter is finally heard and decided at the notice stage itself). The financial burden on litigants, particularly non-corporate litigants, in regard to the system of issuing notice and posting the matter several times without granting leave, is enormous and back-breaking. Further, once leave is granted, the matters routinely take more than a decade for final decision. When public interest litigations espousing popular causes or exposing scams come up before the Supreme Court and the Court makes populist observations or scathing remarks pulling up the establishment, the Court is very “popular”. But, unfortunately, populist or grandiose observations pointing out well-known faults and shortcomings of the executive or the legislature, do not offer any real solutions. Of late, some sections of society have expressed concerns about the delays in disposal and manner of functioning of the Supreme Court. It is felt that the Court has, more often than not, failed to rise to the occasion when dealing with certain fundamental rights. These sections of the civil society are echoing the words of an American Judge (Rose Bird):“The judiciary must not take on the coloration of whatever may be popular at the moment. We are guardians of rights and we have to tell people things they often do not like to hear.” That, however, is not the subject-matter of this article.
PROBLEMS FACED BY THE JUDICIARY
These social, economic and political factors throw several challenges to the Indian judiciary. Providing effective solutions depends upon identifying and understanding the problems and their dimensions. We may identify the following areas of problems and challenges:
|
Sl. No. |
Problem |
Challenge |
|
(i) |
Delay in disposal and its serious consequences. |
How to render speedy effective justice? |
|
(ii) |
Increasing load on courts. Increasing cost of litigation. Lack of flexibility or choices in solutions and reliefs to litigants. Increasing failure in personal and commercial relationships. Lack of effective justice. |
How to popularise alternative dispute resolution (ADR) processes, that is, conciliation, mediation and Lok Adalats?
How to popularise plea bargaining? |
|
(iii) |
Lack of access to justice to poorer and weaker sections of society. |
How to provide access to justice to the needy, downtrodden and weaker sections of the society? |
|
(iv) |
Erosion of credibility of judiciary and the gradual loss of trust and confidence of the common man in courts. |
How to enhance the credibility of judiciary as an institution and regain the trust and confidence of the general public? |
Problem/Challenge I : Delay/Failure to render speedy and effective justice
The biggest challenge is the huge backlog and the delay in disposal of cases. The pendency in High Courts and trial courts is steadily increasing. A decade ago, about 3.4 million cases were pending in the High Courts and about 24 million cases were pending in the trial courts. The pendency has risen to around 4 million cases in the High Courts and around 29 million cases in the trial courts.
The courts function under rather outdated procedural laws. The Code of Civil Procedure is a century old. Even the new Code of Criminal Procedure is more than 40 years old and it is mostly a rehash of an earlier Code of 1898. The Evidence Act is of the year 1872. These procedural laws were enacted when litigations were few, to ensure fair play to the litigants, to bring uniformity in decisions and decision-making and minimise/rectify judicial errors by providing several tiers of challenge by way of appeals, revisions and reviews. They enable filing of innumerable interlocutory applications which often results in the main matter being lost sight of. They also enable motions for adjournments which are routinely sought and given. Delay has now become an inbuilt part of the judicial process. As a result, litigation has become a prolonged, costly, clumsy, uncertain, rigid process and is no longer considered to be user-friendly, efficient or effective.
The proliferation of laws and increase in population have resulted in an enormous increase in the number of litigations. There has been inadequate (and in some cases, total absence of) assessment of “Judicial Impact”, that is, impact of new legislations on increasing the case load on the judiciary. To give an example, insertion of a provision in Negotiable Instrument Act making dishonouring of cheques a criminal offence resulted in an annual filing of about two million criminal complaints without a corresponding increase in the Judge-strength. The overloaded judicial system has to struggle with huge pendency, insufficient manpower and elaborate procedural laws. A powerful Bar and a conservative judiciary have developed a mindset tuned to think of the life-cycle of cases in terms of years and decades, rather than days and months. Negotiated settlements and adoption of alternative (non-adjudicatory) dispute resolution processes are not given the push and encouragement they deserve. The response of the executive to the demands for more Judges, more courts, and better infrastructure is considered to be lukewarm. The response of the legislature to the demand for better laws has been sluggish and insipid. The response of the judiciary for demands for better processes of selection of Judges and their training has been unsatisfactory. All these have created delay resulting in frustration and discontent among litigants. In commercial litigations, delay destroys businesses. In family disputes, delay destroys peace, harmony and health, turning litigants into nervous wrecks. In most criminal cases, the harassment, humiliation or trauma undergone by an accused during the long-drawn prosecution is more than the ultimate punishment handed out (this means that those accused who are ultimately acquitted, that is, more than 50% of those prosecuted undergo a torturous long-drawn criminal prosecution without any remedy for their ordeal). Irrespective of whether the accused suffers a punishment or not, the complainants are also not spared the harassment, frustration, humiliation and trauma during the long-drawn criminal cases.
The delays, when considered with other factors associated with litigation, in particular, the inflexibility/rigidity in decisions, technicalities in laws, high cost of litigation, make the litigants feel that justice has become elusive and illusive. Consequently, confidence in the justice delivery system and the rule of law is steadily eroded; and people with grievances, causes and complaints start thinking of solutions outside legal framework to get quick relief. The incidence of landlords engaging the services of musclemen to evict tenants and creditors and financial institutions approaching dubious agencies for quick collection of dues is alarmingly increasing. There are more and more incidences of powerful politicians, unscrupulous police officers and members of the underworld entering the arena of dispute settlement as arbiters. This does not bode well either for the society or for litigants or for the members of the Bar or for the rule of law.
Though well aware that these extra-judicial recourses are illegal and risky (and ultimately costlier than litigation), more and more persons are persuading themselves to believe that recourse to such methods will give swift, decisive and effective results. In this process, law-abiding citizens are turning into a society of lawbreakers. This is the most dangerous side effect of delay.
The injustice caused (both to complainants/victims as also to the persons accused of crimes) on account of delay in deciding criminal cases is mind-boggling. When there is delay, witnesses forget, witnesses die, witnesses are bought and turned hostile and evidence disappears. The investigating officers are transferred, retire or become unavailable. The victims and/or their families are threatened/persuaded to “give up” and face ruination. The public forget and forgive. The prosecutors and Judges get tired and exhausted. The result is that India has one of the highest rates of acquittals. The high rate of acquittals demoralises the victims, the law-abiding citizens and the police. At the same time, the offenders are emboldened to continue their life of crime. The rule of law becomes a mockery.
The position is no better on the other side. Not all accused are guilty. Many an innocent are being accused of crimes or are framed on the basis of slip-shod investigations, false accusations, political or local rivalry, and family vendetta. Though a person accused of a crime is deemed innocent till proved guilty in a court of law, an arrest or being charged with an offence takes away his freedom and livelihood, apart from destroying his reputation. His family members are shunned, becoming outcasts overnight. At any given point of time, there are about three lakh undertrials (persons held in custody awaiting trial) locked up in prisons, making up for about two-thirds of the prison population. In some States, around 80% to 85% of the prison population is made up of undertrials. Up to three thousand undertrials have been rotting in jails across the country for more than five years. There are nearly two thousand children behind bars as their mothers are undertrial prisoners. At least 50% of the undertrials in prisons will ultimately be acquitted on trial. When an undertrial who is behind bars for several years is ultimately acquitted, he/she has no remedy for the loss of precious years of his/her life, freedom and reputation. Similar is the position of those who are convicted of crimes and languishing in jails during the pendency of their appeals (hearing of which may take several years, even a decade or two in some States) who are ultimately acquitted in appeals.
Many do not consider the impact of delay on the members of the judiciary. When a Judge has 300 to 500 cases, he feels, “let me deal with each case and do justice”. But if a Judge has 2000 cases, it becomes oppressive and the Judge starts thinking of “disposing” of cases rather than doing justice. There lies the danger — a Judge thinking of cases as statistics and not as human problems requiring solutions and remedies.
When one talks of delay, most of the time what is referred or considered is the period during which a case is “pending” before a court. That is, if a suit filed is decreed after five years, the said five-year-period is considered as the period of pendency. But for a litigant, what matters is not getting a decree, but getting “relief”. This means, when delay is discussed, the focus should be on a party getting “relief” for which he/she approaches a court and not merely the time taken for getting a paper decree. The question is not how long it takes to get a “decree” in the suit, but how long does it take to a civil litigant to get “relief”. There are many who get decree, but fail to realise the benefits of the decree due to appeals or delays in execution. A person may obtain a decree in five years and defend an appeal filed by the losing party for another five years and then spend another five years in executing the decree. In such a case, the real “pendency” is not for five years, but fifteen years. Therefore, when we talk of delay, we should consider the delay, not in “disposal” of the case, but delay in getting actual relief, which really is “getting justice” as far as the litigant is concerned. A civil litigant gets justice when he gets the relief, not when he gets a decree. Criminal justice happens when the guilty is punished and actually starts undergoing the punishment.
Problem/Challenge II : Inadequate use of ADR processes and plea bargaining
A litigation ending in a contested decision invariably leads to bitterness, hostility and enmity between the parties to the litigation, and the losing party continues to nurture a grievance against the successful party. In a law-abiding society, parties are expected to accept the decisions of court with grace and equanimity. But that seldom happens. In reality, particularly in suits relating to partition among family members, disputes between neighbours, disputes between partners and disputes between spouses, the post-litigation hostility may lead to further litigations and continuing frictions. On the other hand, if there is a negotiated settlement (either by conciliation or mediation or otherwise), neither party will be a loser, as there will be no “decision”, but only a solution (settlement) acceptable to all. Therefore, it is said that a decision on contest creates two enemies, whereas a consensual solution creates two friends. Settlement of a healthy percentage of cases by a process of conciliation/mediation has the following other benefits also : (i) The pressure on courts on account of heavy pendency is eased, with the result the Court’s Board comes to manageable limits. As a result, courts can deal with cases which require adjudication, more effectively, thoroughly and expeditiously. (ii) The cost of litigation is reduced considerably as the expenses of a long litigation are avoided. There is also enormous saving of time and energy for litigants and witnesses. (iii) The average period of pendency of cases will come down drastically and it will be possible to have decisions in any litigation within a short and reasonable period.
But is it happening? The answer, unfortunately, is in the negative. Hardly 15% of cases get settled in India at pretrial stage (which include directly negotiated settlements between parties without the recourse to ADR processes) and 85% of cases go to trial. This, in spite of considerable effort put in by the judiciary to popularise non-adjudicatory ADR processes, particularly by way of court annexed mediation and Lok Adalats (an indigenous form of mediation where Judges act as mediators). The focus in these Adalats is mainly on motor accidents claims and petty or compoundable criminal cases. The court-annexed mediation centres concentrate on family disputes and commercial disputes. But what prevents their widespread use is the fact that both are available as a remedy in pending litigations and not effectively available at pre-litigation stage. [A welcome change is the amendment in 2018 to the Commercial Courts Act, 2015 by inserting a Chapter providing for pre-institution mediation and settlement.]
The various legal service authorities and mediation committees have been attempting to spread awareness in regard to ADR processes. Special workshops are held to educate judicial officers about the relevance and importance of ADR processes and the need to refer pending cases to court-annexed ADR processes. The Civil Procedure Code has made it mandatory for all courts to refer pending cases to ADR process. Government is encouraging ADR process in matters relating to essential services, pension, etc.
Programmes are also held with the cooperation of the Bar Associations to familiarise members of the Bar with ADR processes and their advantages, so as to remove their doubts about the efficacy of ADR processes, clear their apprehension that ADR will reduce their briefs and affect their livelihood.
But either the efforts are insufficient or the methods used are not very effective. If so, what are the reasons for ADR processes not attaining the required popularity and acceptance among litigants?
Reluctance of litigants
Every litigant believes that he has a very strong case. Such impression is based either on his own perception of the case, or on the assurance of success given by his counsel. He therefore feels that any settlement involves giving up a part of his right or claim by showing a concession to the other side. As a consequence, when a matter is brought to the negotiating table, many a litigant starts with an initial resistance and prejudice, led by his belief that he will get a larger relief by continuing the litigation and therefore there is no need to settle the matter by agreeing for a “lesser” relief. The awareness among litigants about the efficacy of ADR processes is sketchy. The litigants largely go by the advice of their counsel, many of whom may not be favourably inclined towards ADR processes.
Reluctance of Judges
Unless and until the society attains the maturity and wisdom to sort out its disputes through alternative dispute processes, Judges before whom cases come up play a crucial and important role in developing alternative dispute resolution processes by referring litigants to such processes exercising their power under Section 89 of the Code of Civil Procedure. Many Judges are of the view that they should concentrate only on decision-making (adjudication) and not spend their time and energy in persuading litigants to have recourse to alternative dispute resolution processes. When a Judge is himself not convinced that alternative dispute resolution process would provide an effective remedy, his effort to refer the parties to an effective ADR process would be casual, making the process under Section 89 of Code of Civil Procedure a mere formality. Less the number of referrals to mediation and Lok Adalats, lesser will be the success of the ADR process.
Reluctance of lawyers
The reluctance on the part of some sections of lawyers to settle cases by ADR methods may stem from a perception that financially it will be more advantageous for them if a case is conducted and decided on merits (with appeals and revision) as compared with a negotiated settlement. In some towns where the lawyer population is high in proportion to pending litigations, there may be a feeling of insecurity associated with ADR process.
Another factor relevant to the development of ADR process may be the steady increase in the number of lawyers. India has around 33 million cases and 1.25 million lawyers. The country, having nearly 1000 law colleges, churns out around 40,000 law graduates every year at least half of whom join the legal profession. The annual growth rate in the number of lawyers is far more than annual growth rate in the number of cases. As the number of cases per lawyer reduces by reason of growing number of lawyers, the chances of parties being encouraged to settle cases out of court, get reduced.
Some lawyers also express reluctance to persuade their clients to arrive at a negotiated settlement in view of their experience when they suggested a settlement having regard to the merits of the case—the client started doubting his lawyer’s capacity and integrity. Therefore, they genuinely feel that when they have been engaged to conduct cases, their brief is to conduct cases, and not to attempt settlement.
Reluctance of government (public) servants
Wherever a Government or a statutory authority is a party to litigation, the chances of a negotiated settlement are virtually nil. The reluctance is not on the part of the Government or the statutory body, but on the part of the officers who deal with the litigation. Where the Government or a statutory body is a litigant, the reluctance to settle by adopting ADR process stems from the self-interest of the government servant to “cover” himself against any accusations of graft and nepotism. The officers always have an apprehension that ulterior motives may be attributed to them if they settle a claim outside an adjudicatory framework, or that they may be found fault with by their official superiors or by the Audit. Of late, there is additional fear of investigations/enquiries by the State/Central vigilance authorities, CBI/Anti-corruption wings of police, Comptroller and Auditor General/Accountant Generals, media (print, electronic and social) trials, and busybody NGOs/information hunters. This results in a “pass-the-buck” syndrome. There is a tendency on the part of the officers of the governmental and statutory Authorities to shift the responsibility for dispute resolution to adjudicatory fora. A government officer will accept a decision of the court or the arbitrator to pay rupees ten million to a claimant on adjudication, but will refuse to settle a genuine claim by direct negotiations for a sum of rupees one million. This is an unfortunate reality. This reluctance has led to an enormous increase in litigation, particularly in tax and service disputes.
Absence of compelling need to use ADR processes
Yet another reason for non-development of ADR processes is the absence of any compelling need or urgency for the litigants to prefer settlements through ADR processes. The court fee payable is usually a nominal fixed amount (except in a few categories of cases, where the court fee is payable ad valorem on the claim or market value). Even where ad valorem court fee is payable, in the case of agricultural lands (which constitute the subject-matter of majority litigation in rural areas), court fee is payable not with reference to the actual market value of the property, but with reference to a nominal value based on the revenue assessment of the land. Further, the litigant incurs a major part of the expenditure when he initiates the litigation, by way of court fee and lawyer’s fee. In India, there is no concept of reimbursement of the actual cost incurred by the winning litigant, from the loser. In developed countries, when a civil dispute progresses from pretrial to trial stage, the litigation becomes prohibitively expensive and the loser has to pay enormous amount as actual costs of the successful party. Litigants in such jurisdictions think twice before proceeding to trial and make a genuine effort to settle their cases before trial. Consequently, hardly 10% to 15% of cases go to trial in developed countries. But a litigant in India, on losing a litigation, does not bear or pay the actual costs of the other side, but is asked to pay a very nominal amount as costs (in some cases, no costs are awarded at all). The absence of fear of being inflicted with heavy costs in the event of the case going to trial and ending against him, means that there is no “pressure” on the litigant to adopt ADR processes.
Plea bargaining
As a panacea for pendency, it was thought that what ADR is to civil cases pendency, plea bargaining will be for criminal cases pendency. “Plea bargaining” refers to an agreement between the prosecutor and the accused under which the accused pleads guilty to a lesser offence for a lighter sentence. In India, having regard to the provisions of plea bargaining introduced in the Code of Criminal Procedure in the year 2006, “plea bargaining” refers to the process where, on an application of an accused in a pending criminal case, the court permits the accused to work out a mutually satisfactory disposition of the case with the prosecutor (or the complainant as the case may be) and on the basis of such agreed disposition, sentences the accused for a lesser term, or releases him on probation and/or awards compensation to the victim. The object of introducing plea bargaining was : (a) to reduce the number of pending criminal cases and also cut down the period of pendency of criminal cases; (b) decongest the overcrowded prisons which were bursting at the seams, by reducing the number of undertrials lodged therein : and (c) compensate the victim wherever possible. But, for the following among other reasons, plea bargaining has proved to be a non-starter in India:
(i) As contrasted from western countries where the conviction rates hover around 90 to 95% of those prosecuted, the very low conviction rates in India (less than 50% in contested cases) encourages the accused to think that he has a better chance of being completely acquitted on trial. As a result, there is no incentive for an undertrial to opt for or seek plea bargaining.
(ii) The range of cases available for plea bargaining is limited as contrasted from western countries where plea bargaining is permitted for all types of crimes.
(iii) Criminal Procedure Code requires plea bargaining process to be set into motion by the accused himself. He is reluctant to do so because he feels that if he makes a request for plea bargaining, and if the prosecutor or the complainant does not agree for the request, or if the court does not approve of the agreed disposition, then there is a higher chance of his being convicted as the Judge may consider him as one who had virtually admitted guilt.
(iv) In western countries, the prosecuting agencies initiate the plea bargaining process. The prosecuting agencies (in particular the elected District Attorneys in USA) being keen on maintaining their record of securing a high rate of convictions, wherever they perceive that there is a chance of acquittal when the case goes to trial, they will pursue the accused with bargains, so that they can secure a conviction at least for a lesser offence. This is because, in their logic, even a lesser conviction is still a conviction obtained by the prosecutor, as contrasted from a likely acquittal. In India, law does not permit the prosecutor initiating or pursuing plea bargaining.
(v) In western countries, the trial is by jury. Once the trial commences, it continues uninterrupted till the decision. Therefore, there is a period before the commencement of trial, when the accused is under extreme pressure, to resort to plea bargaining to avoid conviction. In India, the trial is by a Judge and not by a jury. The cases meander for long, even after commencement of trial. At no stage, the accused is under pressure to seek plea bargaining. In fact, in India, the law does not want the accused to consider plea bargaining under any kind of pressure.
As a result, the introduction of plea bargaining has neither dented the huge pendency of criminal cases, nor helped undertrials to reduce the period of incarceration in prisons.
Problem/Challenge III : Lack of Access to Justice
Each unresolved grievance of weaker sections, poor and downtrodden is invariably a cry for justice involving life, liberty, food, shelter, safety or security. Poverty and ignorance are the twin barriers denying them the access to justice. Financial aid, legal awareness and easy access to justice by way of committed quality legal services, can remove these barriers and give them a level playing field to seek and secure justice.
Anyone subjected to injustices and inequalities, when not able to access effective and speedy justice, tends to take law into his own hands. As a result, several disputes which ought to have found solution in civil litigation end up as crimes.
There are also political and social ramifications of discontent arising from the inability to get justice. If the poor and weaker sections cannot go to police for fear of being ignored, harassed or being falsely implicated, and if they cannot approach courts for want of easy access, then they do not have any effective forum to ventilate their grievances. That leads to resentment, helplessness, anger and frustration, which is a dangerous mix that can erupt into sudden and serious violence. Those subjected to injustices and not having access to justice became easy prey to calls of terrorism, militancy, anarchy, insurgency and vigilantism, tearing the very fabric of democracy.
Indian judiciary, by tradition, follows the British system where the Judge is considered to be a neutral umpire who is not expected to investigate into truth, but merely considers the oral and documentary evidence placed before him, hears the arguments and then decides in favour of one who has made out a better case on law and facts. He takes no active or positive part in moulding or guiding the case nor seeking truth. Of course, in an ideal adversarial litigation where the parties are evenly matched and are represented by competent lawyers, it may be proper for the Judge to merely sit, listen and watch, being sure that truth and justice will ultimately prevail. But what happens where the dispute is between a rich and powerful on one side and a poor and downtrodden on the other? What happens when the litigation is between the helpless citizen on one side and the mighty State on the other? What happens if the fence starts eating the crop and persons in power act against the interests of the Government for personal gain and practice nepotism? What happens if the person who comes knocking at the doors of the court belongs to a weaker section — a woman, child, aged, infirm or disabled who does not have any resources to fight? What happens when a tribal who has no idea of rights and obligations, is catapulted into fighting a scheming land grabber or a ruthless loan shark or a mining baron or an insensitive and non-caring Government? Should the Judges keep quiet and watch when the interests of the poor and weak are mauled and destroyed? Should the Judge merely sit and watch when false and trumped charges are brought by the police against an innocent or when the rich and powerful cover up their misdeeds and draw red-herrings with the help of unscrupulous lawyers? Should the Judge sit and watch when sabotaging of a criminal case begins from the very stage of registering the complaint and the basic evidence is not presented by the prosecution? Is it not the duty of courts to not only do justice, but also to ensure that justice is done? Is it not a fact that a court alone can, and does, provide a level playing field for the poor/downtrodden/weaker sections to challenge or take on the rich, powerful and the mighty?
In India the Legal Services Act enjoins the Legal Services Authorities under the Act to render to every poor and disadvantaged person (falling under the enumerated weaker sections), legal service for the conduct of any case or legal proceeding before any court or tribunal [vide Section 12 read with Section 2(c) of the Act]. The Legal Service Authorities at national, State, district and taluk levels are controlled and administered by Judges (though there may be outside members). Unfortunately, those availing legal services are not satisfied with their quality either due to the fact that legal aid counsel are not competent, or due to lack of choice of counsel or due to non-friendly/unhelpful attitude of officials of Legal Service Authorities (or even due to the fact that human nature tends to consider any free service to be of inferior quality).
Problem/Challenge IV : Maintaining the Credibility of the Judiciary
It is John Marshall who said:“Power of Judiciary lies not in deciding cases, not in imposing sentences, not in punishing for contempt, but in the trust, faith and confidence of the common man.”2 The Supreme Court observed3:“The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken.” Judiciary, like any other big and great institutions, while growing, has become unwieldy, lethargic and inefficient. It is finding it difficult to keep pace with the growing expectations. As more and more Judges are appointed, there is also every likelihood of some of them lacking in integrity, impartiality and judicial temperament and some of them lacking in efficiency and wisdom. As a result, as the number of Judges grows rapidly, there are chances of erosion of credibility and trust in the institution where the highest degree of probity, independence and impartiality are expected. Loyalty, gratitude and friendship which are considered as “good qualities” in normal humans are considered as “weaknesses” of a Judge, if he allows those feelings to interfere with his judicial functions.
There are several causes leading to erosion of credibility (in addition to delay and difficulty in accessing justice, which have been discussed earlier). That bears examination.
The uncertainty of outcome
Litigants hate uncertainty. Lawyers hate uncertainty. A lawyer would like to predict the outcome of a case, with reference to the prevailing legal position as applied to the facts of the case. Citizens want to arrange or conduct their affairs in accordance with the settled position of law. If a citizen is before a court, he expects the same treatment and same relief as extended to others who are similarly situated.
The outcome of a case depends on several factors — the facts of the case, the legal position, the manner in which the case is presented, the ability and efficiency of the advocates, the care taken by the litigant to place all relevant facts on record, and the understanding capacity, personal philosophy, integrity and impartiality of the Judges. In short, there are several factors beyond the control of the litigant which lead to uncertainty regarding to the outcome. A litigant may win in the trial court, but lose in appeal. He may win in the trial court and first appellate court, but may lose in a second appeal. On the other hand, he may lose before the trial court as also in the first appellate courts but succeed in the second appeal. The hierarchy of appeals and revisions leads to reversals and further reversals. At each stage, the several factors referred above play a part. This leads to uncertainty, a lot of uncertainty in fact.
The law declared by the Supreme Court is binding on all courts in India and the legal position enunciated by the State High Courts is binding on all the courts in the respective States. To deal with the large number of cases, the Indian Supreme Court normally sits in divisions, that is, either Benches of two or three Judges. (In High Courts, the Judges normally sit either singly or in a Bench of two Judges.) If the Supreme Court sits in divisions of five, there will be hardly six or seven Benches. If it sits in divisions of two, there will be seventeen Benches. More the Benches, more will be the disposals, but also more likelihood of differing and diverging views. Work pressure, failure of parties to bring relevant binding decisions to the notice of the court, judicial indiscipline, all lead to divergence and inconsistency in judgments.
The personal philosophy of the Judges also adds to the uncertainty and inconsistency in views. Benjamin Cardozo put it aptly thus4:
There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction in thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them — inherited instincts, traditional beliefs, acquired convictions … It is often through these sub-conscious forces that Judges are kept consistent with themselves, and inconsistent with one another.
On account of their personal philosophies, some Judges are identified as acquitting Judges and some as convicting Judges; some as liberal and relief-oriented and some as strict and conservative, negative and rule-minded; and some as pro-labour and others as pro-management Judges. The result is that many similar cases end up with different results with different Judges. This leads to parties and lawyers being involved in Bench-hunting. Uncertainty and lack of uniformity in decisions is therefore a serious problem.
High number of acquittals
Sometime back, an eminent lawyer said in anguish : In India, many major crimes are not reported. If reported, seldom registered. Even if registered, instead of the true perpetrator being identified and apprehended, many an innocent is framed. Even if the true perpetrator is identified, he is many a time not charged and even if charged, not properly prosecuted. Even if prosecuted, not convicted. Even if convicted, not adequately punished. At each crucial stage — reporting the crime, registering the FIR, investigation, charging, and trial the system has enough loopholes to allow criminals to walk free.
The large number of acquittals in criminal cases is mainly due to three reasons. The first is the criminal procedure which is tailored to give effect to the doctrine that “Let hundred guilty go unpunished but not one innocent should be wrongly punished”, is constantly misused by those who are guilty. The second is the lacunae in investigation (by the police) and in prosecution (by the prosecuting agency). It is widely believed that the sabotaging of criminal cases due to corruption, inefficiency or political pressure is common; that recording of complaints/first information is delayed or many a time not even registered; that material documents are fabricated, tampered, interpolated; that cognizable offences are converted into non-cognizable offences and non-cognizable offences are converted into cognizable offences; that search and seizures are tailor-made and many times involve planting of material; and that third-degree methods are used to extract false confessions. The third is delay. When there is delay, witnesses forget, witnesses die, witnesses are threatened/bought, with the result, witnesses are not available or made to turn hostile. As a result, several contested criminal trials result in the acquittal of the accused by giving benefit of doubt, that is, guilt has not been proved beyond reasonable doubt. Emboldened by the lack of convictions, slowly and steadily, more and more commit crimes as they believe that they can get away with the crime, creating a crime-ridden society. Unfortunately, the blame for the high percentage of acquittals is placed at the doorsteps of the judiciary thereby affecting its credibility.
Murmurs regarding integrity of Judges
There are growing murmurs about lack of integrity among Judges. There are different perceptions on the question whether corruption in judiciary should be discussed and how it should be dealt with. One view is that instances of corruption should be considered as mere aberrations and there should be no open debate as that tends to erode the confidence of the public in the judiciary as well as the credibility of the institution. It is pointed out that the trust and faith in the judiciary can be maintained only if the judiciary is seen as a noble, virtuous and an honest institution; and that random dishonesty and corruption is disproportionately magnified by constant talk and debate about corruption in the judiciary, leading to loss of faith in the judiciary thereby eroding its credibility. The other view is that the corruption in the judiciary is to be openly discussed and widely published so as to send a warning signal/message to erring Judges and to instil confidence in the system. Proponents of this view argue that corruption should be exposed and dealt with publicly instead of sweeping it under the carpet. Transparency, they point out, is the key. Sunlight, they argue, is the disinfectant, There are others who take the middle path and argue that while there is no need for unwarranted publicity and debate in regard to corruption, there is need for firm and swift internal action whenever corruption raises its head. As the standard of probity expected of Judges is high and as the expectations from the judiciary are also high, it is argued that the damage to the institution on account of unnecessary adverse publicity is irreparable; and that therefore there should be more internal debate within the judiciary for devising ways and means to eradicate corruption and take firm and prompt action in regard to complaints of corruption.
There is also considerable disinformation about the extent of corruption in the judiciary. There is a widespread impression that some lawyers, when they lose cases, unkindly attribute the defeat/failure to the inefficiency of the Judge and sometimes, much worse, lack of integrity on the part of the Judge, rather than admitting that the inherent weakness of the case or their inefficiency in conducting the case was the cause for the loss. It is said that some unscrupulous court officials and touts operating in courts make money by spreading false rumours regarding corruption. Their modus operandi targets liberal Judges known for their high percentage (80% to 90%) of acquittals. An unscrupulous element (say a court official or a tout) who knows about the acquittal reputation of the Judge will contact the accused (and/or his relatives) in a case pending on the Judge’s file and by assuring/holding out that he can influence the outcome, collects money in the name of the Judge. When the innocent and honest Judge renders his decision, if it is an acquittal, the tout will claim that the favourable decision was the result of payment of a bribe to the Judge. In a small percentage of cases where the Judge convicts the accused, the tout will return the money saying that the deal did not go through for some reason. Thus, irrespective of the result, the Judge gets the false tag of being corrupt.
Sometimes Judges themselves may unwittingly be responsible for creating a wrong perception about the extent of corruption in the system. Some Judges, just to accentuate their honesty, go around sporting “knowing looks” and long faces, and make grave comments implying corruption in the judiciary. Unfortunately, as there will always be some lacking in honesty and integrity, the public which sees lot of corruption, tends to believe that there is more dishonesty than what may really exist. This affects the credibility of the entire body of Judges.
STANDARD PROBLEMS AND SOLUTIONS IDENTIFIED IN SEVERAL JUDICIAL CONFERENCES AND WORKSHOPS
Discussions and debates among Judges in various law conferences have repeatedly identified the following causes for the delay and present condition of judiciary : (i) inadequate number of Judges; (ii) lack of adequate infrastructure and facilities; (iii) lack of efficient secretarial and clerical assistance; (iv) incompetence of court staff; (v) lack of cooperation from members of the Bar; (vi) shortage of Public Prosecutors; (vii) incompetent or shoddy investigations by investigating agencies; (viii) delay in service of summons/notices to accused/defendants/respondents by process servers and police; (ix) burdening of Judges with extra-judicial work (like Legal Services) which divert their focus and time from judicial work; (x) outdated and impractical procedural law provisions; and (xi) increase in frivolous and engineered litigations.
Such conferences and workshops have also come out with the following standard solutions to strengthen the justice delivery system:
(i) Adopting modern case management techniques.
(ii) Revamping of Registries by engaging the services of efficiency experts and by appointing professional managers.
(iii) Effectively using information technology in courts.
(iv) Subjecting the losing party to higher costs (that is reimbursement of the actual cost incurred by the successful party) as a deterrent.
(v) Persuading members of the Bar to make an effort to be brief in pleadings, evidence and arguments by better preparation and research (that is, shortening pleadings, evidence and arguments).
(vi) Grouping and classification of cases with common issues, for quick disposal.
(vii) Discouraging unnecessary leave and absence by Judges and court staff.
(viii) Improving the efficiency of the Registry by strict supervision and by proper training to the court staff.
(ix) Increasing the number of Judges so as to maintain a healthy Judge-population ratio.
(x) Improving the infrastructure for courts; and providing technology aids and better secretarial assistance to Judges.
(xi) Improving the investigation procedures and prosecution processes, including the use of scientific and technological tools, by providing intensive training to police and prosecution personnel.
(xii) Building awareness among litigants and prospective litigants about alternative dispute resolution processes and encouraging out-of-court settlements;
(xiii) Proving periodical training to Judges and staff to increase efficiency and efficacy.
(xiv) Conducting special drives to dispose of “short” cases which are high in number, like motor accident claim cases, land acquisition compensation cases, cheque-bouncing complaints, petty cases and summons cases.
I have not listed several micro-level solutions/suggestions put forth in such conferences/workshops for expediting the hearing and disposal of cases, for improving the recording of evidence and hearing of arguments, for curbing frivolous litigations, for discouraging adjournments and for improving the infrastructure of courts. They have been sufficiently discussed, taken note of and are being constantly implemented.
In spite of judiciary identifying several problems and implementing the solutions listed above, the public perception is that there is no marked improvement in the functioning of the judiciary. This is primarily due to two reasons. The first is that what is being done by the Judges and judiciary is apparently not enough. The second is that solutions to several of the problems are not in the hands of the judiciary, but in the hands of other stakeholders — the State (both Central and State Governments), the Bar and the media and they have not been providing solutions to those problems. Sometimes even the society (litigant public) is responsible for aggravating the problems.
SOME FURTHER SOLUTIONS
Justice delivery system can be said to function satisfactorily when it renders speedy, fair and efficient justice at a reasonable and affordable cost, ensuring the rule of law, securing human rights and helps in achieving good governance. To achieve that goal, it is not sufficient to merely improve the performance of Judges, but a parallel effort should be made : (i) to have better laws — either by enacting good laws, by amending existing laws to make them better and by repealing bad laws; (ii) to improve the processes of registering complaints, investigating of crimes and prosecuting of offenders : (iii) to ensure that the legal profession remains a service-oriented noble profession and does not become a business; and (iv) to improve the quality of legal education. When these areas remain unattended or not attended sufficiently, they also affect the credibility of the judiciary.
Therefore, it is necessary to identify the problems that can be addressed by the judiciary itself (that is, by the Supreme Court and the High Courts at institutional level and by each Judge individually) and the problems that can be addressed by the other stakeholders, that is, the State, the Bar and media, in serving the society. Let us now consider what can be done by each of these stakeholders.
What the High Courts can do?
1. Train the Judges to increase their potential — capability and efficiency.
2. Train the court officers, secretarial assistants, back-office staff and sub-staff, so that they can function as efficient support staff.
3. Support Judges in their work and protect them from unwarranted criticism, media pressure and political interference. This may incidentally require the High Court not to routinely initiate action on the complaints against Judges, in particular anonymous or unsubstantiated complaints.
4. Regulate and streamline the reporting of decisions so that the courts are not deluged with divergent or inconsistent views. All and sundry decisions should not be marked for reporting.
5. Avoid, or at least reduce drastically, deputing or posting Judges to non-judicial/non-adjudicatory work.
6. Liberate Judges from Legal Services, in particular, organising and conducting legal awareness programmes and Lok Adalats.
7. Periodically assess the performance of Judges and offer them guidance and counselling and redress their grievances.
8. Recommend and follow up with the Government, measures for institutional reforms, adequate infrastructure, and facilities for courts.
What the Supreme Court can do?
1. Evolve and implement a better system for appointing Chief Justices and for approving the recommendations for appointing High Court Judges to improve the functioning of the High Courts and subordinate judiciary.
What the State can do?
1. Make judicial impact assessment whenever new laws are made. Periodically assess and provide additional courts (either permanently or temporarily) with adequate infrastructure and staff, in consultation with the High Court.
2. Entrust the legal services (that is, providing legal aid, spreading legal literacy/awareness, and conducting non-adjudicatory alternative dispute resolution processes) to the Executive Wing of the Government for implementation, in consultation with the High Court/other stake holders, by appropriate amendment to the Legal Services Authorities Act, 1976.
3. Constantly strive to simplify procedural laws to expedite hearing and disposal of cases and to improve and bring in clarity in substantive laws by repealing/amending outdated/draconian/unworkable laws.
4. Improve Legal Education and provide for compulsory apprenticeship to members of the Bar.
5. Establish a Judicial Management Cadre to manage the administration of judiciary at all levels.
6. Establish a Research and Training Centre for improving legislative drafting, conducting Judicial Impact Assessment, and training Law Officers of the Government.
7. Improve the functioning of investigating agencies (Police) and prosecuting agencies (Directorate of Prosecution) to ensure proper and timely investigation and prosecution.
8. Take steps to discourage/prohibit trial by media which may strain the independence and impartiality of Judges (without infringing upon the freedom of the media).
What the Judges can do?
1. Improve their judicial skills and administrative (management) skills.
2. Maintain ethical standards and values in judicial life.
3. Keep in mind the constitutional values and goals and make a sincere attempt to render justice, rather than being obsessed with statistics and mechanically “disposing of” cases.
4. Encourage ADR process and meaningfully participate in ADR processes.
5. Use technology and apply and adopt case management principles.
What the Bar can do?
1. Render proper assistance to courts.
2. Protect the reputation of the judiciary.
3. Encourage ADR processes.
4. Maintain the ethics of the Bar.
What the media can do?
1. Responsible reporting of matters relating to courts.
2. Not to resort to media trials.
Nothing is new about these suggestions. They have been considered and implemented in one form or the other at different points of time. But there has been no concerted, continuous, consistent, conscious effort to implement reforms and changes in a scientific or professional manner. Let me refer to some of these solutions in greater detail.
Role of High Courts
Training Judges
Judicial Academies have been established for training Judges in almost all the States. The National Judicial Academy conducts special workshops for High Court Judges and members of District Judiciary. Newly appointed trial Judges at entry level are given extensive initial training for about a year or more by the State Judicial Academies. Further, periodical refresher interactive courses are conducted for the new Judges and in-service Judges. The Judges are also taught case management and case flow management techniques and use of information technology to enhance the efficiency of justice delivery system and to quicken the process of adjudication.
But the training is found to be inadequate in many States. Further, in view of large number of vacancies, many a time, newly appointed judicial officers are posted without undergoing the full course of training. The quality and period of training differ from State to State. Many Judicial Academies do not have qualified, experienced and committed faculty. Bad or wrong training is worse than no training. The training of new Judges should be properly structured and should be of adequate duration. A regular syllabus should be prepared and followed. Ideally, the faculty should be a blend of retired Judges, distinguished advocates with trial experience and academics. Posting serving judicial officers for short periods on ad hoc basis should be avoided.
Training the support staff
Judges are not able to work at the optimum level of efficiency for lack of secretarial support and administrative assistance from the support staff. Judges require assistance of competent support staff with integrity to function effectively and efficiently. To illustrate, an inefficient or inexperienced steno-typist can slowdown the disposals of a Judge by either recording the evidence slowly or incorrectly, or by not transcribing the dictated orders/judgments promptly and accurately, requiring considerable time and effort for the Judge to edit and redraft; a court clerk, by not maintaining the order-sheets and records properly or by failing to organise the work of the court efficiently, creates confusion and commits mistakes, thereby affecting the efficiency of the court; and the pending clerk can delay the progress and disposal of cases by failing to maintain the case records properly and securely, or by failing to place the relevant papers in the file, or by failing to issue summons, notices and reminders as and when necessary. It is not an exaggeration to say that with efficient staff to assist them, Judges can double their productivity. There have been repeated complaints from Judges about lack of adequate support staff or lack of efficient support staff with experience. Prompt filling up of vacancies, giving initial training and thereafter periodical refresher training to court staff and ensuring regular supervision of their work, will go a long way to improve the functioning of the courts.
Supporting and protecting Judges
Normally, the losing side is dissatisfied with the decision. Further, if a Judge is firm and refuses unwarranted requests for adjournment, he incurs the displeasure of the lawyers. Parties are interested in getting interim reliefs and lawyers expect Judges to be liberal in granting interim orders/bails. Judges who are firm and strict in granting interim orders/bails become unpopular. This leads to some unsuccessful litigants, and sometimes even a section of the Bar, indulging in anonymous complaints and sometimes even signed representations. While serious complaints supported by material certainly require action, any tendency on the part of the High Court, Administrative/Portfolio Judges and Vigilance Departments of High Courts acting on the basis of anonymous/frivolous/motivated complaints, should be curbed. The High Courts should ensure that vigilance section acts fairly and properly without harassing Judges and at the same time ensure action on genuine complaints. Instances are not wanting where disgruntled elements have unjustly heaped complaints on judicial officers who are on the verge of promotion, thereby denying or delaying their promotions. The High Courts should protect Judges from malicious attacks, false propaganda, etc. to save Judges from trauma, anxiety and depression and safeguard their independence. The following observations of the Supreme Court5 are relevant:
‘14. … An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for the rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Id, 381-82, para 14.
The Chief Justice and each Judge of the High Court should always remember that while the constitution protects the independence of the judiciary as an institution, it is their (Judges of the High Courts) duty to protect the independence of each member of the subordinate judiciary. There is a general complaint that fearing criticism either from the media or from the higher courts, several subordinate courts play it safe in criminal cases by opting for convictions at the final stage and refusal of bail at interim stage even when the cases deserve acquittals and grant of bail. If the subordinate Judges should hear and dispose of cases fearlessly and protect the rule of law, the High Courts should fiercely protect the independence of the subordinate Judges and ensure that they are not subjected to unwarranted attacks by losing parties or the media.
Effective use of statistics
Collection and analysis of data in a scientific manner is necessary for improving justice delivery. Mere collection of general data mechanically will not assist in improving the justice delivery. Let me give an example (with assumed figures).
(a) The data collected by a High Court, relating to the number of filings and the number of disposals during a year with the opening and closing figures for the purpose of ascertaining the disposals/work done during the year is as under:
[Illustrative]
|
Calendar Year |
Pendency at the beginning of year |
Filings during the year |
Disposals during the year |
Pendency at the end of the year |
|
2016 |
5,00,000 |
1,00,000 |
1,20,000 |
4,80,000 |
|
2017 |
4,80,000 |
1,25,000 |
1,45,000 |
4,60,000 |
|
2018 |
4,60,000 |
1,40,000 |
1,60,000 |
4,40,000 |
If the above data should alone form the basis for assessing the work done by the High Court, it would show that the High Court has been effectively and consistently reducing its pendency year after year, as the number of disposals every year is more than the number of filings.
(b) But if the data is more detailed with reference to different cases (as noted below, for the year 2016) and the analysis is more scientific, the figures paint a different picture and show a totally different position.
[Illustrative]
|
Category |
Average time required for disposal |
Opening balance |
Filings in the year |
Disposals in the year |
Closing balance | ||
|
|
|
Number of cases |
Time required (Hours) |
|
|
Number of cases |
Time required (Hours) |
|
(1) Writ petitions |
1 hr |
2,60,000 |
2,60,000 |
56,000 |
76,000 |
2,40,000 |
2,40,000 |
|
(2) Writ appeal |
1 hr |
50,000 |
50,000 |
10,000 |
15,000 |
45,000 |
45,000 |
|
(3) Criminal and other petitions |
½ hr |
1,00,000 |
50,000 |
20,000 |
27,300 |
92,700 |
46,350 |
|
(4) Criminal appeals |
8 hrs |
40,000 |
3,20,000 |
4000 |
1000 |
43,000 |
3,44,000 |
|
(5) First appeals (civil) |
10 hrs |
26,000 |
2,60,000 |
6000 |
400 |
31,600 |
3,16,000 |
|
(6) Second appeals (civil) |
3 hrs |
24,000 |
72,000 |
4,000 |
300 |
27,700 |
83,100 |
| Total |
5,00,000 |
10,12,000 (Hours) |
1,00,000 |
1,20,000 |
4,80,000 |
10,74,450 (Hours) |
|
[NOTE : This is on the assumption that normally a criminal appeal would require eight times the time required for a writ petition and a first appeal would require ten times the time required for a writ petition, a second appeal would require three times the time required for a writ petition/writ appeal.]
(c) The detailed figures show that more number short-duration cases (WPs, WPs and cri/other petitions) have been disposed of than the number of filings and very few long-duration cases (criminal appeals, first appeals and second appeals) have been disposed of during the year. As a result, even though the total pendency came down from 5,00,000 to 4,80,000, the actual pendency has increased enormously if the time required for disposal is considered. The 5,00,000 cases at the beginning of the year required 10,12,000 Judge hours for disposal, whereas the 4,80,000 cases pending at the end of the year would require 10,74,450 Judge hours. It would be seen that in terms of time required for disposal, there is a substantial increase in the pendency and not a reduction in the pendency. If the calculations are similarly made for the subsequent years also, it will show a similar position.
Therefore, for any type of planning and case management, care should be taken to use the correct scientific statistical methods and reliance should not be placed on broad general figures regarding pendency, which may show a false picture. Unless detailed scientific statistics are collected, the result would be a misleading position about pendency, per-Judge disposals and consequential planning for improving the functioning of the court concerned. Several courts, in fact, face a serious problem where the concentration on disposals is with reference to the writ matters and civil and criminal petitions resulting in a huge backlog of criminal and civil appeals which take considerably longer period for disposals. Appropriate planning is required to ensure that sufficient number of appeals are also disposed. Failure to give adequate attention to appeals requiring long periods for hearing and disposal has resulted in the criminal appeals pending nearly two decades, while writ petitions are disposed of in a couple of years, in some of the High Courts.
Effective use of information technology and case management techniques
Information Technology has helped in making the judicial administration more efficient and transparent, apart from reducing corruption in the Court Registries. Judges and lawyers of older generations would recall the days of chaos, delays and irregularities in issuing certified copies, listing cases, tracing files, etc. before computerisation. Information Technology has also brought about marked changes on the judicial side, in recording evidence, in maintaining judicial records and in accessing case laws. Status of cases in the Supreme Court and High Courts and several subordinate courts is now web-hosted. But there is a common feeling among lawyers and litigants that the case information systems is not user-friendly but is cumbersome. There is need for an effort to make case information more easily accessible, and make it available in all courts, so that lawyers can keep track of cases at the click of a button and litigants can easily ascertain the status of their cases without visiting the lawyer’s office or court.
The next stage will be to move towards converting all courts into e-courts, at least partially, so that filing, maintenance of records, recording of evidence and hearing arguments, are all computerised. All pretrial hearings should be by videoconferencing. In identified categories of cases, recording of evidence and hearing of arguments can also be through videoconferencing. These measures can speed up the hearings, reduce congestion in courts, apart from cutting down travel time and expenses of litigants and lawyers. However, care should be taken to ensure that computerisation of courts does not act as a barrier to less advantaged sections of society from accessing the justice delivery system. The Bar should also be consulted to ensure that the computerisation does not become a burden to them. The Covid-19 Pandemic has shown that the judiciary is facing hiccups in readily adapting to required changes at short notice. The impediments to physical hearing due to the pandemic should be converted into opportunities to provide the required stimulus to adopt changes relating to use of information technology, in particular, by regular use of e-filing and hearings through videoconferencing.
The Judicial Academies, both National and at State levels, have been training Judges in adopting case management techniques and information technology for expediting hearing and early disposals. Parliament has enacted the Commercial Courts Act, 2015, mandating the holding of case management hearing in regard to commercial disputes. There is, therefore, a need to effectively implement the provisions for holding case management hearings, as merely making a provision will not give the desired results. There is also a need to provide for effective case management in all courts and for all types of cases by providing appropriate modes of case management systems.
Making ADR processes, more effective
Success of mediations and Lok Adalats depends upon the commitment and interest shown by the respective High Courts and the commitment and expertise of the mediators/Lok Adalat members. Institutionalisation of mediation, as also continuous education of lawyers, litigants and Judges by ADR awareness programmes, can assist in increasing the use of ADR processes.
Regulating the reporting of decisions, to improve the efficacy of precedents
The rationes decidendi of the superior courts (Supreme Court and the respective High Court) are binding precedents and the lower courts are required to decide cases in accordance with the law laid down or interpreted in the binding decisions. In regard to the decisions of the Supreme Court, Article 141 of the Constitution contains a mandate that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The Supreme and High Courts sit in divisions and each Bench of the Supreme Court is also the Supreme Court and each Bench of the High Court is also the High Court. This sometimes gives rise to divergence in views when a later decision does not notice or overlooks an earlier decision on the point and proceeds to decide the issue in a manner inconsistent with the earlier decision. In fact, such divergent decisions are so many that they have given rise to their own jurisprudence in the law of precedents laying down principles as to which decision should prevail and be followed in the event of divergence. As the number of Judges increases and the workload increases, there will be more and more chances of different Benches laying down the law differently, creating enormous problems for the lower courts which have to follow the decisions. The courts waste valuable judicial time trying to harmonise divergent views or deciding which decision should be followed. As a result, many a case which can be decided by spending an hour or two, has taken days for being decided.
Further, many decisions which are reported are not worthy of reporting, either because they do not lay down any law or put forth any new view, or because they are decided basically on facts and do not constitute precedents. But there is no system of effectively curtailing or restricting the binding nature of such decisions which do not constitute precedents. The only solution is development of a system whereby a committee preferably of Judges and academics selects the cases which can be considered as precedents, so that a large number of cases which are decided purely on facts or which do not lay down any law are not considered as precedents. [Note: This issue has been dealt with in more detail in the article “Precedents — boon or bane?”6 in this book]. Unless the much-needed screening/filtering of reported decisions is done, the existing system of reporting all and sundry cases will put an unnecessary strain on the lower judiciary apart from making decision-making more complicated and time-consuming.
Restricting deputation of Judges to non-adjudicatory functions/assignments
The consequences of indiscriminate use of Judges for non-adjudicatory functions are neither recognised nor considered by High Courts. A large number of Judges — particularly senior Judges, are made to work on deputation — as Law Officers in Law Department, as Registrars of Tribunals, as Secretaries of Legal Services Authorities, as Directors of Mediation Centres, etc. Further, large number of Judges are posted as Registrars and Deputy Registrars in High Courts and City Civil Courts. In many States, an alarming number ranging between 15% and 40% of the judicial officers in the cadre of District and Sessions Judges work on deputation. Each District Judge spends a good part of his/her judicial career on deputation. This is not a healthy trend. Deputations to posts which do not involve adjudicatory work blunts the judicial skills and disturbs the judicial temperament and impartiality developed over a period of time; and when they are posted back to preside over courts after long deputations, it is possible that many of them would require a long period to regain their efficiency, productivity and sometimes, even ethical standards. Deputations of Judges to non-judicial posts should be drastically cut down. There is no point in deputing judicial officers to work in the Law Department to give advice to Government, thereby converting Judges to legal advisors.
Even within the judiciary, there is no point in appointing senior judicial officers to do purely administrative work as Registrar (Administration), Registrar (Statistics), Registrar (Recruitment), Registrar (Vigilance) and Private Secretary to Chief Justice. The Supreme Court and each High Court waste enormous judicial talent by posting half-a-dozen to a dozen Judges at any given point of time to perform non-judicial work in their Registries. Judges are experts in decision-making and not in administration. Judges should adjudicate and discharge judicial functions. Administration and management should be entrusted to persons qualified and experienced in management and administration. That will free large number of Judges for judicial work thereby increasing productivity on the judicial side and improve the administration.
Liberating Judges from legal services
Judges are specialists in adjudication. They are required to maintain judicial aloofness. They are required to maintain “distance” from lawyers, litigants and politicians and members of the executive. But when they function as chairpersons and secretaries of Legal Services Authorities/Committees at High Court, District Courts and Taluk levels, they are required to frequently organise legal awareness/legal literacy programmes and Lok Adalats. No legal literacy/legal awareness programme can be conducted without the effective cooperation and assistance of either the members of the Bar or the district administration (which includes police) or the local elected representatives. Depending upon the nature of the legal literacy programmes, it becomes necessary for Judges to work in close association with the members of the Bar/officials of the district administration/elected representatives. Similarly, for holding Lok Adalats, Judges will have to work in close association with the members of the Bar, officers of insurance companies, banks and government officials.
Many a time, Judges are put to embarrassment when the persons with whom they will have to work in legal services are litigants before them (or much worse, are the accused standing trial before them). Further, if Judges are obliged to take the assistance from elected representatives, district administration, members of the Bar, officers of insurance companies and financial institutions, there is a great risk of integrity, impartiality and independence of some of these Judges being compromised. There is every likelihood of some of these persons unscrupulously seeking favourable treatment from the Judges. Larger or grander the legal awareness programmes, larger the “obligation” incurred by the organising Judges towards officials of district administration, elected representatives and the Bar.
Further, organising every legal literacy or legal awareness or mega Lok Adalat programme requires considerable preparation and organisation. On the dates of the function (particularly when High Court Judges attend these functions) and the preceding days, the court work virtually stops, and no judicial work, or studying of files or dictation of orders/judgments is possible for the organising Judges. High Court Judges are also required to frequently travel to attend these functions and they also lose the benefit of valuable weekends which have to be dedicated to reading/preparing judgments.
It is no doubt true that the Legal Services Authorities Act entrusts legal services to the judiciary. When that Act was enacted, no assessment was done of the time required for the said work related to implementation of the objects of that Act and no provision was made for additional manpower required to handle the work exclusively. Ideally, all legal services-related activities including awareness events/workshops should be organised by the executive (Department of Law and Justice). If it is felt that judiciary should handle the legal services, then such work could be entrusted to non-judicial officers under the supervision of the judiciary.
It is necessary to refer to another likely collateral fallout. Normally, in relation to their judicial functions, Judges are neither entrusted with any funds for expenditure, nor required to submit accounts. With the entrustment of duties relating to legal services, huge amounts running into crores of rupees which are required to be spent for providing infrastructure for legal services and for organising legal service events are placed at the disposal of Judges. Judges should be freed from such financial responsibilities and attendant distractions in regard to matters strictly not related to the judiciary.
A time has come for revisiting the legal services Act to shift legal services from judiciary. Judges should not be required to organise events or functions connected with legal services. Sooner the Judges are liberated from legal services, better will be the productivity of the judiciary and maintenance of judicial independence, aloofness and integrity.
Relief to subordinate Judges from unwarranted pressures, protocols and remarks
The High Courts should relieve the subordinate Judges from the tremendous pressure and tension caused by the following:
(a) Fixing of unrealistic quotas by the High Court, which requires the subordinate Judges to decide minimum number of cases and earn minimum number of units every month.
(b) Indiscriminate directions by the Supreme Court and by the High Courts to dispose of cases expeditiously, either by fixing time-limits for disposal, or by directing that hearings be held day to day.
(c) Making disparaging, derogatory or objectionable remarks and observations against subordinate Judges in their decisions.
Fixing of quotas, many a time, is unrealistic, impractical and statistics oriented. Those administering the courts should evolve other methods to develop work culture among Judges leading to expeditious and just decisions. While monitoring the work of the Judges, setting goals and minimum limits by the High Courts is inevitable, an effort should be made to ensure that Judges can function freely and fairly.
The Supreme Court and High Courts, while disposing of appeals routinely, issue directions for time-bound disposals by the lower courts by considering only the needs of the case before them. They do not take note of the fact that there may be several older matters or there may be several more urgent matters requiring the attention of the Judge. The pressure on account of such directions comes in the way of Judges doing justice to deserving cases by making their own assessment of the comparative urgency of the cases. An observation about the need for early disposal, rather than a direction for time-bound disposal, would be more appropriate and enables the Judge to render better justice.
A subordinate Judge is defenceless against unwarranted remarks made by the High Court in its appellate or revisional jurisdiction made without giving an opportunity. The Supreme Court has repeatedly observed that higher courts should not pass objectionable remarks against a lower court Judge merely because the higher court finds the decision of the lower court to be erroneous or because it does not agree with the reasoning of the lower court. It demoralises the subordinate Judge.
The following words of caution of the Supreme Court7 should always be remembered by the Judges of the High Courts:
15. … The role of High Court is also of a friend, philosopher and guide of judiciary subordinate to it. … The power to control is not to be exercised solely by wielding a teacher’s cane; the members of subordinate judiciary look up to the High Court for the power to control to be exercised with parent-like care and affection. … The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. … Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court — a situation not very happy from the point of view of the functioning of the judicial system. … And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralising effect not only on him but also on his colleagues.”8
Judges should also be freed from legal services, protocol duties and other non-judicial work so that they can have more time to attend to their judicial functions and spend time with their families. The tradition (written or unwritten) that local (subordinate) Judges should be in attendance when Judges of the Supreme Court or the High Court Judges visit any places within their jurisdiction should be discontinued. The practice of Supreme Court Judges and High Court Judges being addressed as “My Lord” and “Your Lordship” by judicial officers outside the Court should be discontinued. A sense of equality and fraternity— that all Judges belong to the judicial fraternity and are equal (except in the jurisdiction they exercise) — should be nurtured. No Judge should give cause for anyone to remark that feudalism has left the country, but not the judiciary. Each Judge should at all times remember that their independence and power are meant solely to serve the public by rendering justice. Judicial humility and judicial aloofness should be cultivated and practised by every Judge.
Redressing the grievances of Judges
While there are grievance redressal mechanisms for lawyers, for litigants and for judicial staff, Judges themselves do not have any realistic and effective mechanism for redressal of their grievances. The High Courts should put in place an effective grievance redressal mechanism for the Judges.
The Principal District and Session Judge and the Administrative Judge (known as Portfolio Judge in some States) should not only supervise the work of Judges in the respective districts, but should also function as guides and mentors when necessary. If the Judges err, they should be guided and counselled by the High Court Judges or the Principal District and Sessions Judges, as the case may be. There should be a periodical review of the work of Judges and counselling to optimise their functioning and to ensure that Judges work peacefully and free from pressures, fears, influences.
Recommendations to the Government
It is necessary for the High Courts to regularly assess, plan and execute the institutional reforms required for improving the performance of the judiciary, to assess and plan for additional infrastructural requirements keeping in view the expected increase in the Judge strength and workload, and also to seek upgradation of the working conditions of and facilities for Judges to enable them to optimise their functioning. Having done so, they will have to make necessary recommendations to the Government periodically and pursue the same so that it can obtain the sanctions, finances and consents required for implementing the above. The High Courts should take timely steps to recruit Judges at all levels to avoid vacancies and consequential disruption of work. There is no doubt that these are already being done. But the emphasis above is that they should be done regularly, efficiently and effectively.
Role of the Supreme Court
One may wonder what the Supreme Court has to do with the administration and functioning of the 18,000 subordinate Judges. The answer is simple. The Supreme Court appoints (to be exact, it selects and the President appoints) the Chief Justices of all High Courts and approves the appointment of Judges of the High Court. The Chief Justice of a High Court runs the administration of that High Court. The High Court selects all subordinate Judges and supervises their functioning. Though the Full Court of the High Court may take the ultimate decisions, it is the Chief Justice of the High Court who controls the High Court, initiates all processes and actions on behalf of the High Court and runs the day-to-day administration of the High Court through its Registry.
If a High Court is fortunate to have a Chief Justice who is independent, decisive, committed and sound in administration and supervision, the entire judiciary in the State will run smoothly and efficiently; the appointments of Judges (both to the High Court and the subordinate courts) will be made in time; promotions will be processed and made in time; disciplinary actions will be initiated and completed in time; and grievances of the Judges will be considered and remedied in time. Such a Chief Justice will also take the required initiatives and initiate prompt follow-up for providing and upgrading infrastructure, improving the functioning of the courts and bringing excellence in justice delivery, encouraging alternative dispute resolutions, and building bridges with the Bar. As a result, all Judges in the State will function (or at least make an effort to function) with commitment, integrity, independence and impartiality.
On the other hand, what happens when an inefficient person or a person who does not evince interest in the proper functioning of the courts is appointed as the Chief Justice of a High Court? Or what happens when someone who does not have the inclination and commitment required to run the High Court efficiently and effectively is appointed as the Chief Justice? (as it happens sometimes when someone with hardly a few months of service left is appointed as Chief Justice or if someone who is expecting elevation to the Supreme Court feels that his tenure as Chief Justice is going to be short and he should not rock the boat till he is elevated). As Chief Justices are always brought from outside the State, and the work culture, traditions, language, and State laws of their parent High Court will be different, they normally require a minimum of six months to familiarise themselves with the new High Court and understand and appreciate the problems and issues peculiar to that High Court and the hundreds of subordinate courts (in some States more than a thousand). The position is no different even in respect of smaller High Courts where the Judge strength may be small but may have special problems totally alien to an outside Chief Justice. If a High Court is unfortunate to have several “short duration” Chief Justices or “uninterested” Chief Justices and that situation continues for two to more years, the functioning of courts in that State will gradually deteriorate; appointments/recruitments will not be made; annual confidential records will not be written and promotions held up; disciplinary actions will be delayed or not taken; annual inspections will not be held; and there will be no conferences and workshops for the Judges nor brainstorming or training sessions for improving the functioning of the Judges. The High Courts with such Chief Justices will function virtually as headless institutions and “good” courts turn into “non-functional” courts.
It is well known that if the functioning of a company is to be improved, great effort is put in to identify and appoint a CEO with an understanding that he/she would steer and guide the company for a period sufficient to bring in changes/improvements in functioning. Everyone has understood and recognised the need for minimum tenures for persons who are required to head, manage and lead complex institutions or bodies, be it the Defence Chiefs, Cabinet/Chief Secretaries or Director Generals of Police. But when it comes to Chief Justices of State High Courts, we find that it is normal to appoint them with a tenure of hardly a few months (sometimes as short as a month or less). How will such short tenure Chief Justices guide and steer the High Courts? How will those courts thrive and be credible institutions?
Therefore, there is a need for evolving and implementing a sound system of appointing Chief Justices and approving the recommendations for appointing as High Court Judges. The following solutions have been doing the rounds for a long time : (i) Reverting to the old system of appointing the Chief Justice from the same court (which is also perceived as having several disadvantages). (ii) Providing minimum reasonable tenure for High Court Chief Justices to enable them to initiate and implement strategies and systems to improve the functioning of the courts in their respective States. (iii) Transferring the Judges identified for appointment as Chief Justices to the respective High Court at least six months in advance so that they can familiarise themselves with local conditions. (iv) providing training in administration and leadership. (v) Increasing the age of retirement of Judges appointed as Chief Justices of High Courts to 65 years (same as Supreme Court Judges) and devise a method to choose those with administrative capacity as Chief Justices of High Courts and appoint those interested exclusively in judicial work to the Supreme Court. There may also be other ways. What is emphasised is the need for change and improvement in the process of appointment of Chief Justices so as to preserve their independence and increase their contribution to the State judiciary.
Role of the State
Judicial impact assessment
As the quantum of litigation increases, there is a need for a corresponding increase in the number of Judges to decide them. Apart from the general periodical increase in litigation, whenever the Government criminalises wrongs by declaring certain wrongs to be offences/crimes, there is marked spurt in the number of criminal cases resulting from such newly created offences. The two classic examples (referred to earlier) are dishonour of cheques being made offences by amending the Negotiable Instrument Act and certain acts/omissions relating to marital relationships being made offences of domestic violence, cruelty and dowry harassment under the Protection of Women from Domestic Violence Act, 2005, the Penal Code (Section 498-A) and the Dowry Prohibition Act, 1961 (Section 4).
All developed countries and several developing countries have systems in place for judicial impact assessment, that is, assessing the probable increase in workload on account of enactment of a new law or a new provision in an existing law and providing for adequate increase in Judges’ strength and infrastructure to meet the spurt in the litigation as a result of such new law/provision. Such assessment and consequential provision for increase in Judges’ strength is lacking in India. At all events, there is no effort to identify the increase in workload and provide for increase in the Judges’ strength.
By way of illustration, reference may be made to some legislations which have converted the Supreme Court of India into court of first appeal, that is, final court of fact. In no other common law country, the highest court is asked to function as a court of fact. However, time and again, Parliament, in its wisdom, provided for first appeals directly to the Supreme Court, as for example, the Terrorists and Disruptive Activities (Prevention) Act, 1987 and the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. As a result, when the Supreme Court, as the first appellate court, takes up such appeal, each of these appeals can take several months for hearing and disposal (Bombay blast case is an example which was heard by a Supreme Court Bench for several months). Making provision for first appeals to the Supreme Court and converting it into a court of fact should be avoided.
Transferring legal services
India has provided for legal services to disadvantaged groups, not only to defend themselves, but also to initiate legal actions to safeguard their rights. Different countries have adopted different systems of legal aid to the accused who cannot afford legal representation. No other developed or developing country has entrusted legal services to the judiciary. It is not appropriate for Judges to function as chairpersons and secretaries of Legal Service Authorities and legal service committees and carry out executive and administrative functions. The pressure of their judicial work does not permit them to dedicate the attention and time required for nurturing legal services. The legal service work is also a distraction for their judicial work. I have dealt with aspects relating to legal services in detail while considering the role of the High Court. As pointed out therein, there is an urgent need for the State to amend the Legal Services Authorities Act to entrust the implementation of legal services to the executive and relieve the judiciary from such burden.
US model or Brazilian model for rendering legal services by way of legal representation is worthy of consideration. In USA the public defender’s office, a government funded agency, provides legal representation to indigent accused; and on being appointed by the court to represent an accused, the public defender’s office assigns a lawyer to defend the accused. The Brazilian public defender’s office extending legal service to the indigent is independent of all three branches of the Government.
Simplifying procedural laws and making plea bargaining more effective
Parliament has made efforts to amend the procedural laws to reduce delays and to expedite trials. In civil cases, examination-in-chief of witnesses is now permitted by way of affidavits. Recording of cross-examination by Advocate-Commissioners is permitted and is being now used regularly. The Civil Procedure Code is amended making it mandatory to refer all cases to ADR process. The Criminal Procedure Code is amended to provide for plea bargaining. The Evidence Act is amended to permit electronic records as evidence. However, many archaic procedural provisions still remain. Even amendments relating to use of ADR in suits (Section 89 CPC) and plea bargaining (Sections 265-A to 265-L CrPC) have failed to yield the expected results due to ineffective nature of the provisons.
Statutory amendments are necessary to effectively implement the recommendations of Law Commissions and Criminal Justice Reforms Committees to strengthen the investigation and prosecution processes. Any alternative to the present plea-bargaining procedure which will protect the innocent but punish the guilty and achieve a conviction rate of 80% to 90%, will act as a strong deterrent to crime. Any reform of criminal justice system should also take note of the fact that many a time, the accused himself is a victim of framing by trumped up charges. While strengthening the existing system, the basic safeguards that are available to an accused should not be weakened nor should there be interference with fair trial or human rights. The goal of the reforms should be to achieve and maintain a fine balance among the interests of the society, interests of the victim and the interests of the accused.
The tendency to criminalise activities by converting infractions into crimes without proper research, debate and consultations should be avoided. It is also a matter of concern that whenever there is a strong media outcry and public outrage over some shocking incident, laws are made or amended in haste as a knee-jerk reaction without proper study, forgetting the well known adage “Hard cases make bad Law”. Isolated or singular acts of gruesome perversity or stray instances of serious economic offences by a few individuals should not be the benchmark for providing harsher punishment or bringing in harsher measures. Instead, an attempt should be made to deal with the root causes to prevent such incidents.
Increasing the use of ADR mechanism
The biggest litigant in the country is the State. Unless the State encourages the use of ADR processes for settlement of its disputes/cases, ADR cannot achieve its deserved success. Having regard to the hesitation of government servants to use ADR process to settle government disputes, the State should come out with some modified version of mediation with which its officers will be comfortable and feel safe. “Med- Arb” is a solution worth trying. In Med-Arb, the Tribunal starts as Mediator(s) and in the event of failure of mediation, proceeds to hear and render a binding decision (award).
A significant legislative intervention which is likely to boost mediation is the amendment to the Commercial Courts Act, 2015, by Act 28 of 2018. The said Act (Chapter III-A, Section 12-A) now mandates pre-institution mediation in regard to commercial disputes. The said Act also amends the provision relating to costs in the Code of Civil Procedure requiring the courts to award actual costs to the successful litigant in commercial disputes. These twin steps, in the long run, with further appropriate amendments, will improve dispute resolutions in commercial matters effectively and expeditiously.
Section 12-A of the Commercial Courts Act, while mandating pre-institution mediation, has exempted cases which do not contemplate any urgent interim relief under the said Act, from pre-institution mediation. This is likely to dilute the very purpose of providing for pre-institution mediation. To make Chapter III-A more effective, such exemption has to be deleted by suitable amendment and a provision similar to Section 9 of the Arbitration and Conciliation Act, 1996 may have to be introduced to provide urgent interim relief where pre-institution mediation has been invoked.
Reducing State litigations
The State is the largest litigant in the country. If it becomes a responsible litigant, that is, litigating only where it is necessary, the burden on courts would be reduced tremendously. The Supreme Court and High Courts have repeatedly pointed out that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. The Supreme Court9 recommended and suggested as follows:
“5. It is a matter of concern that such frivolous and unjust litigations by Governments and statutory authorities are on the increase. Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and high-handed manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.
10. Unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision-making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision-making to courts and tribunals.
11. … Vexatious and unnecessary litigations have been clogging the wheels of justice for too long, making it difficult for courts and tribunals to provide easy and speedy access to justice to bona fide and needy litigants.10
Improving inter-departmental cooperation to reduce litigations
Lack of cooperation among the several departments of the Governments and as between Central Government and the State Governments, or State Governments inter se, affects effective justice delivery. The Supreme Court11 pointed out:
19. … All departments should function in the interest of the public and for public good. Merely because a particular department or an authority functions under a particular statute, it does not follow that they should or could ignore the provisions of other statutes. Interdepartmental cooperation and coordination is vital for the smooth and successful functioning of the Government. But unfortunately there is thriving interdepartmental rivalries and a mutual non-caring attitude towards the functioning of other departments and enforcement of other statutes. Non-cooperation between the Revenue Department and the Forest Department, the Revenue Department and the Mines and Minerals Department, the Forest Department and the Mines and Minerals Department, are too well known. Unless immediate and serious steps are taken for improving the coordination, cooperation and understanding among various departments, offenders will escape, violators will walk away, national resources will be swindled, and public interest will suffer.12
Improving the legal system and legal education
Several years ago, Prof. N.R. Madhava Menon had suggested13 the following steps to improve the legal system:
(i) Segregate professional legal education from the rest and identify professional law schools to be given autonomy and infrastructural support towards giving a fair chance to show competitive excellence of world quality. Entrust legal education regulation to an independent Regulator.
(ii) Reintroduce compulsory apprenticeship and pre-admission professional entrance examination for all those seeking entry to the Bar. Make continuing education mandatory for all advocates every five years.
(iii) Reorganise legal aid services under an independent authority with equal participation of lawyers, Judges and consumers of justice.
(iv) Establish independent Mediation and Arbitration Councils on the model of the Bar Council and initiate separate licensing system with disciplinary bodies for mediators and arbitrators.
(v) Develop an all-India Prosecutorial Service with specialised training programmes for at least one year to all prosecutors. Instal rigorous performance standards and weed out inefficient or corrupt. Reward performance.
(vi) Establish an all-India Judicial Service and impart specialised training for at least one year on a prescribed curriculum. Introduce transparency in performance assessment. Fast track promotions be introduced to reward merit and hard work.
(vii) Establish Advanced Legal Research Centres with specific mandate for policy development, legislative drafting, judicial impact assessment, proposals for institutional reform and criteria for performance assessment of legal and judicial institutions/personnel.
(viii) Establish a separate Department of Criminal Justice at Central and State levels under a high-powered Board representing judiciary, police, prosecution and Home Department, accountable to the legislature and having control over all Forensic Science Laboratories.
(ix) Create a well-trained and qualified managerial cadre to manage the judiciary at all levels. Create a database on judicial statistics and make judicial planning and budgeting evidence-based.
A concerted effort should be made by the executive, legislature and the judiciary with the aid of the Bar to implement these reformative measures.
Improving investigations and prosecutions
Nearly 80% of the litigation in India is criminal cases. Investigation and prosecution are in the hands of the executive. The investigating agencies and prosecuting agencies have a crucial role to play in expediting disposal of criminal cases. At present, for want of proper investigation and prosecution, a large number of the criminal cases end in acquittal. Non-appointment of adequate number of prosecutors, non-availability of the investigating officers in several cases due to their transfers, non-procurement of the witnesses leading to repeated adjournments contribute to the delays in deciding criminal cases. Large number of acquittals for want of proper investigation and prosecution and the delay in disposal of criminal cases due to non-availability of prosecutors, investigating officers and witnesses, unfortunately affect the credibility of the judiciary.
Therefore, there is an urgent need for the investigation and prosecution wings of the Government to be adequately staffed, properly trained and strengthened and strictly disciplined, so that their performance levels will increase. In countries like Japan, even 2% to 3% acquittals are not tolerated; and in countries like USA, even 10% acquittals are not tolerated, whereas, in India, as noticed above, acquittals exceed 50%. Strengthening of the judiciary will be meaningless unless there is a corresponding strengthening of the investigating agencies and prosecuting agencies.
Plea bargaining
There should be a joint effort by the Government and judiciary to popularise and increase the use of plea-bargaining provisions, while ensuring that:
(i) to make appropriate amendments relating to plea bargaining to make an effective instrument of change in regard to criminal pendency and no prejudice is caused to the accused in the event of the request for plea bargaining being rejected;
(ii) the Judges are adequately trained and sensitised to effectively deal with applications for plea bargaining and ensure that the accused enters into a plea bargain after fully knowing advantages, disadvantages and consequences of plea bargaining; and there is no coercion or pressure by either the investigating agencies or the prosecution.
Role of Members of the Judiciary
Improving the potential, capability and efficiency as a Judge
A Judge has to develop five judicial skills to discharge his functions efficiently. They are : (i) thorough knowledge of the procedural laws; (ii) basic knowledge of legal principals and substantive laws; (iii) skill of conducting a proper hearing, in particular, in recording evidence and hearing arguments; (iv) skill of marshalling the facts to deduce findings of fact and apply the law appropriately to reach proper conclusions and decision and put the facts, reasons and conclusions in the form of a cogent judgment/order; and (v) skill of disposing of interlocutory applications and dealing with requests for adjournments to ensure that they do not impede the progress of the case. A Judge also requires five administrative skills to be effective, that is, (i) time management; (ii) board management; (iii) staff management; (iv) Bar management; and (v) self-management.14
Maintaining the ethical standards
Improving the ethical standards of Judges is a subject which requires a separate article. The ethical standards required of Judges (integrity, judicial aloofness, independence, judicial humility and impartiality) are set out in detail in the said article “How to be a Good Judge — Advice to New Judges”14 and are not therefore repeated here. In addition, each Judge should remember the ethical standards required of him, as set out in “Bangalore Principles of Judicial Conduct, 2002”15. The Supreme Court has briefly described what a Judge should be and what is expected of him in its decision in R.C. Chandel16:
“29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar’s wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.”17
Shifting emphasis from “disposals” to “justice”
Every Judge should imbibe the constitutional goals and values embodied in the Preamble, Fundamental Rights, Directive Principles and Fundamental Duties, as also Charter of Human Rights, and keep them in view while rendering justice. The rights of weaker sections — socially backward, economically backward, physically weak and infirm, women, children, physically and mentally challenged have to be protected. The goal of every Judge should be to render justice fairly and equitably in accordance with law. Any tendency to lay emphasis on “disposals” and not on “justice” should be avoided. When minimum limits (or disposal quotas) are fixed by the respective High Court, the effort and endeavour of a Judge should be to maximise the number of cases decided, and not to decide only the minimum prescribed. Every Judge should remember that reaching the “quota” or “target” of disposals fixed by the High Court is not “passing with distinction”, but is equivalent to scrapping through with the minimum pass marks. The tendency to adjusting the work schedule to decide the minimum quota should be replaced by a commitment to decide as many cases as possible.
Maintaining consistency
Consistency is the hallmark of Judges. Settled legal positions should not be changed merely because a Judge prefers an alternative view. Every Judge (whose decision would be a binding precedent) should, before attempting to change a well-settled legal proposition or principle, think of the effect of such change on the transactions entered till then on the basis of the settled legal position. If a Judge is not consistent with himself or with the other Judges, it leads to uncertainty and confusion. As citizens arrange their affairs in accordance with the settled legal positions, frequent changes therein affect the credibility of judiciary. Even subordinate Judges, whose decisions are not binding precedents, need to maintain consistency in their decision-making. If they lack consistency in their decision-making, they lay themselves open for comments on their integrity.
Encouraging ADR processes
Each Judge should encourage ADR processes. This can be done by giving effect to Section 89 of the Code of Civil Procedure (as explained by the Supreme Court in Afcons18) by making appropriate references to ADR processes and explaining to the litigant the relevance and advantages of settlements through ADR processes.
Use of technology and case management principles
Every Judge should use technology in the day-to-day functioning of his/her court by steadily converting the court into paperless e-courts. Every Judge should also apply and adopt case management/case flow management principles and techniques for enhancing the quality and increasing the quantity of decisions, for providing access to justice and for expediting the disposal of cases.
Normally, a contested civil case may take anywhere between 3 to 5 years for disposal. The Judges are transferred periodically and it is quite normal for a case to be dealt with by 4 to 5 Judges at different stages. If a Judge has 1000 to 2000 (or more cases) on his file, it is not practical for him to read all the files. If 50 to 60 cases are listed per day before a Judge, it is not possible for the Judge to read all of them. The result is most of the trial Judges are not aware of the facts and the issues involved when the trial of a case commences. Ordinarily, if a case is conducted day-to-day continuously and if the Judge is acquainted with the facts and issues, the evidence and arguments can be concluded in a day or two. But if the case is adjourned from time to time and the trial is conducted piecemeal before different Judges, the same trial may take anything between a year or two and the total Judge hours spent on the case would increase manifold. This is one of the primary reasons for delay in disposal of cases. This is where case management can play an important role. Though case management is statutorily made compulsory only in regard to commercial disputes, Judges should combine a hearing under Order 10, Order 14 and Order 15 into a “Case Management Hearing” even in cases other than commercial disputes. Once the pleadings are completed, at the first hearing, courts should endeavour to hold a Case Management Hearing in cases other than commercial disputes also to (i) examine the parties under Order 10 CPC; (ii) identify and frame issues; (iii) identify the appropriate ADR process and refer the parties to explore the possibilities of a negotiated settlement; (iv) identify cases which can be decided by a short trial and fix those cases for fast track disposal; (v) sort out pretrial processes like requests for interrogatories, disclosure and production of documents and find out whether the case can be disposed of on pleading send documents, by hearing arguments; (vi) fix the calendar for trial. Such a case management meeting would enable the Judge to efficiently allocate his time for old (long) cases and fresh (short) cases. [This list is indicative and not exhaustive like Order 15-A Rule 6 CPC.] Case management and continuous hearings are the keys to cut down delay and expedite cases. The success of case management and consequential cutting down of delay depends on the earnestness, seriousness and commitment shown by the Judges.
Courteous behaviour
The Judges should be courteous to the members of the Bar, the litigants, witnesses and the staff. This will ensure better cooperation and productivity.
Role of the Bar
Lawyers are an integral part of justice delivery system. Justice delivery can be effectively achieved only if there is mutual respect and cooperation between Judges and the members of the Bar. The role of the Bar and its cooperation are crucial to any attempt to strengthen the justice delivery system. Let us refer to some of these crucial areas.
Render proper assistance to court
Though Judges are supposed to control the progress and conduct of cases, more often than not, it is the lawyers who control the progress of a case — by the length of their pleadings, by the quantum of oral and documentary evidence placed, by the time taken for addressing arguments and by the number of interlocutory applications filed and the adjournments sought. The complaint is that in many cases, they file unnecessary applications, seek unnecessary adjournments, examine unnecessary witnesses, burden the record with unnecessary documents, indulge in unnecessary cross-examination and lengthy meandering arguments. The general perception (which in many cases may be erroneous or unwarranted) is that lawyers are more inclined towards trial and decision than towards negotiated settlements, as adjudications (with appeals and revisions thrown in) are more remunerative than negotiated settlements. Some lawyers, it is said, on instructions from clients interested in dragging on the proceedings, adopt dilatory tactics as part of their brief. As a result, each Judge is required to spend much more time than what is actually required in regard to each case, thereby reducing the productivity of the court and increasing the longevity of the cases. Lawyers should be trained to make a conscious effort to keep the pleadings, evidence and arguments brief, so that there can be more effective and speedier decisions, so that speedy relief can be provided to litigant public.
Protect the reputation of the judiciary
Only if the judiciary enjoys the faith of the public and has credibility as an institution, lawyers can assure the litigant of relief in just causes and thrive as a profession. If the people lose faith in the judiciary, avoid courts and look around for other remedies, what future does the profession of law hold?
Whenever a case is weak or without merit and is consequently lost, the lawyer should have the courage to tell the truth to the client. But if, instead, just to save himself from blame, he tells the client that a case is lost because the Judge is incompetent or may be lacking in integrity, he will be bringing down the credibility and reputation of the judiciary. A client may never come back to courts even when he has a genuine cause or grievance if he is given the impression that the Judges are incompetent or lacking in integrity. Next time he has a grievance or problem, he may choose to go to the local mafia (or even to police) for getting relief, rather than approaching a court. The survival of the rule of law depends upon the confidence reposed by members of the public, in courts, Judges and judiciary as an institution.
There is nothing wrong in lawyers expressing an honest opinion about decisions of Judges or criticising the flaws in judgments. In fact, appeals and revisions are meant for that purpose. In regard to important decisions of the High Courts and the Supreme Court, Law Journals and the media (print/electronic) can certainly be used for discussing, analysing and criticising the decisions. What is destructive and what should be avoided by any member of the Bar is making unwarranted derogatory comments about Judges in the corridors of the court and much worse, in print or social media, when they lose cases.
If any lawyer learns that his client is attempting to influence a Judge, he should firmly dissuade his client from doing so. At the same time, if a lawyer reliably learns that a particular Judge is lacking in integrity, he is duty-bound to immediately bring it to the notice of the High Court or its Vigilance Cell, so that appropriate action can be taken against the erring Judge.
Encourage alternative dispute resolution processes
There is no need for every difference or dispute to be converted into a court litigation. There is also no need for every litigation to go to trial and fought till final judgment. Different cases require different treatments. Lawyers are already choosing the forum suitable for obtaining redressal — it may be a suit in a civil court, or a complaint before the criminal court or before the consumer forum, or a petition before the High Court, or an application before a tribunal. They should also choose appropriate alternative dispute resolution processes like conciliation, mediation or Lok Adalat for securing quick and satisfactory relief to the litigant. The client (litigant) will consent to using an alternative dispute resolution process only if there is proper positive advice from his counsel. If the counsel expresses doubts about the effectiveness of alternative dispute resolution processes, the litigant would naturally ignore them and think of only court adjudication for securing the relief. The Bar owes a duty to the client to identify cases which deserve conciliation or mediation and settle them by such process. Once the Bar understands the need and efficacy of ADR process and realises that it will provide easier and quicker remedies to the litigants and extends its cooperation to the fullest extent, ADR process will become a meaningful tool for effective settlements.
Maintaining ethical standards
The fundamental motto of lawyers is (and it is hoped, continues to be) : Law is a noble profession and not a trade or business. What does this mean? This means that it involves rendering service to the needy and persons in distress. It means that the primary object of the profession of law is to render service, earning being secondary. This means that a litigant should be considered as a vulnerable person in distress needing relief and not to be viewed as a source of income. This means that a lawyer should not solicit work, nor advertise services. Is this still a good and sound rule in these changing times?
Like the field of medicine where general medical practitioners have been replaced by multi-speciality hospitals and Corporate Medical Specialists Chambers, individual litigators are being replaced by corporate law firms with a completely different style of functioning. The system of traditional lawyers maintaining professional detachment and at the same time advising the clients as a friend and mentor, is on the way out. Law practice is no longer restricted to giving advice, drafting conveyances and wills, and representing clients in adjudicatory litigation. The corporate law firms provide exhaustive service packages to a client, by providing ‘a’ to ‘z’ solutions for all law-related issues. From the stage of formation of a company, all work involving any law or regulation, including generation of funds and finances by public issues or private placements, negotiations for settling the terms of securing loans, advising on all law and regulatory issues, filing statutory returns and submissions, ensuring clients’ safety and security in all their dealing and contracts, settlement of conflicts, resolution of all issues and disputes before courts, tribunals and authorities relating to labour, taxes and claims, defence in complaints of violations and offences, become part of the package of services offered by corporate law firms. The corporate law firms are run as businesses with regular CEOs, business managers and technical experts, employing lawyers, experts and paralegals. Billing by the hour, Power Point presentations to prospective clients, distribution of brochures containing profiles of lawyers and services are becoming standard practices. Solicitation for work by way of business lunches and dinners, get-to-know parties and workshops are accepted norms. Law firms are no longer a group of service-oriented lawyers. The poor and downtrodden do not fit in to the business models of Corporate Law firms. The number of lawyers committed to the cause of social justice, ready to fight for the poor and downtrodden is fast dwindling. As a corporate law firm is not an enrolled advocate, the law firms proceed on the basis that the Rules, Regulations and restrictions applicable to the members of the Bar do not apply to them.
With the advent of technology, globalisation, multi-national corporations and large business houses and industries, evolution of lawyers into corporate law firms is inevitable, and in fact necessary, to offer the required width of services. As individual lawyers and corporate law firms operate at different levels and in different fields with different priorities and principles, there may be a need to evolve two sets of norms and standards — one for individual advocates and the other for corporate law firms and their member-lawyers. The standard of ethics prescribed by the Bar Council which applies to the individual advocate may have to be supplemented by a set of rules for corporate lawyering.
The Bar Council of India Rules has a chapter (Chapter ii of Part VI) laying down the Standards of Professional Conduct and Etiquette. The Rules require every advocate to conduct himself in a manner befitting his status as an officer of the court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity, may still be improper for an advocate. They have crystallised and formulated the duties owed by a lawyer as : (i) duty to the court; (ii) duty to the client; (iii) duty to the opponent; (iv) duty to colleagues.
Lord Birkett, an outstanding Advocate, Judge and Parliamentarian, added one more significant duty to the aforesaid well-recognised duties owed by lawyers19:
The Advocate has a duty to his client, a duty to the Court, and a duty to the State. But above all, he has a duty to himself to remain a man of integrity. No profession calls for higher standards of honour and uprightness, and no profession, perhaps, offers greater temptations to forsake them. But whatever gifts an Advocate may possess, howsoever dazzling his skills are, without the supreme qualification of an inner integrity, he is worth nothing.
Yet another duty owed by lawyers—a duty to the society—is discernible from Mahatma Gandhi’s advice to lawyers20:
Almost everywhere I have found that in the practice of their profession, lawyers are consciously or unconsciously led into untruth for the sake of their clients. An eminent English lawyer has gone so far as to say that it may even be the duty of a lawyer to defend a client whom he knows to be guilty. There I disagree. The duty of a lawyer is always to place before the Judges, and to help them to arrive at the truth, never to prove the guilty as innocent. It is up to you to maintain the dignity of your profession. If you fail in your duty what shall become of the other professions? You, young man, claiming as you have just done to be the fathers of tomorrow, should be the salt of the nation. If the salt loses its savour, wherewith shall it be salted?
Lawyers may feel that Lord Birkett and Mahatma Gandhi set the bar too high and these standards are impractical to maintain. But it is those high standards that make law a noble profession. The advice merely is that a lawyer should not identify himself with his client. It means that the duty of the lawyer is not to win at any cost, not to suppress or distort the truth or attempt to prove the guilty as innocent, but to put forth the case of his client fully and properly to the best advantage of his client.
The American experience has shown that when there are a large number of “business minded” lawyers, there will be a tendency to “manufacture” or “preserve” litigation. The theory of “survival of the fittest” (best and most capable) will be converted into “survival of the most unscrupulous” who are willing to identify themselves with the client and win by whatever means. Many will be tempted to deliver success to their clients by fabrication of documents, threatening/buying witnesses, corrupting investigators, prosecutors and Judges. Some may start exploiting the cases and become stakeholders in the litigation (of which litigations relating to accident claims and real estate are prime examples). Solicitation, aggressive marketing, champerty, will become tools of legal profession converting a noble profession into a business. The American way of lawyering, which converts ethical lawyers into mercenaries and businessmen, is not suited to Indian conditions and way of life.
There are complaints and heartburn about practising lawyers who are related to Judges (that is, children, spouses, siblings and sons/daughters-in-law of Judges) misusing their relationship/proximity to Judges. There are endless anecdotes about the mercurial rise of such “related lawyers” in the profession (with corresponding rise in income) during the tenure of the “related Judge”, coming to an abrupt end with the retirement of the “related Judge”. The “related lawyer” should make sacrifices and ensure that there is no blot on the Judges and judiciary. But there were and are a large number of Judges’ children who refuse to practise or take briefs in the court where their parents are Judges or remain so self-effacing that neither the litigants nor the Brother Judges ever knew about the relationship of the lawyer to the Judge.
The following advice given by Socrates to Judges:‘Hear courteously, speak wisely, consider soberly and decide impartially’ can be usefully adopted as the following advice to lawyers : Behave courteously; prepare properly and thoroughly; proceed wisely, precisely and expeditiously; and charge reasonably.
Role of media
An independent judiciary and an independent media are the two pillars of democracy which serve and protect the public. A vigorous, vigilant and free media, is an effective check against corruption and nepotism. No institution including the media can survive or thrive unless it has strong ethical standards to build its credibility with the public. Media therefore owes a duty (i) to ensure accuracy in reporting always remembering that its duty to inform the public does not include a right to misinform; (ii) to give every individual who is reported upon adversely, a fair chance to present his side; (iii) to protect the rights of victims to privacy and reputation; and (iv) to protect the rights of accused, to a fair trial.
Reporting court-related matters
The general feeling among the members of the judiciary is that print and electronic media give a distorted version when reporting about courts, cases and the process of justice. The media tends to sensationalise the coverage and reporting of cases. Many decisions of the courts are reported in a misleading manner. Casual remarks made by the Judges during the hearing are reported as conclusive findings of the court. Questions put by a court to elicit the truth, or to ascertain the correct factual or legal position, are construed as indications of the decision to follow. Neither the facts of the case, nor the deliberations in the court, nor the ratio decidendi of the case, are properly presented. No doubt, the public is not interested in the routine, in the mundane and the unexciting. But that does not mean that the media should vet the appetite of the public for the sensational, the lurid, the obscene, shocking and revolting.
Many a time the shortcomings in the investigation, the clumsiness in the prosecution, the weaknesses of the witnesses, the legal principles, which play a pivotal role in decision-making in criminal cases, are ignored and the Judge is blamed for the outcome of the case, particularly if it involves acquittal in a sensational case where the media has already decided upon the guilt based on invalid inferences, inadmissible evidence, baseless presumptions and unwarranted assumptions. Many a time, based on a single acquittal by a court, media has painted the entire judiciary as spineless, ineffective or lacking in courage or probity. Again, when such an “unliked” decision is reversed by the High Court, the media has exclaimed that the credibility of the judiciary has been restored. The media cannot treat the reputation and credibility of the judiciary to be so fragile that one perceived wrong judgment would invite condemnation of the entire judiciary and reversal thereof by an appellate court as restoration of its credibility. The courts have to decide a case on the evidence adduced before it and not on the sentiments expressed by the media. Unless the media acts with more responsibility, prudence and better understanding of the judicial functioning and desists from yielding to the temptation of sensationalising court-related news, the rule of law and public interest will suffer.
An independent judiciary and an independent vigilant media are two pillars of democracy, which nourish and cherish the freedom of expression. Neither the judiciary, nor the media, can survive or thrive unless it has strong ethical standards to build its credibility with the public. Joseph Pulitzer’s advice to the media is ever relevant:… commercialism has a legitimate place in a newspaper, namely, in its business office. But commercialism, which is proper in the business office, becomes a degradation and a danger when it invades the editorial rooms. Once the publisher comes to regard the press as exclusively a commercial business, that is the end of its moral power. Without high ethical ideals, a newspaper is not only stripped of its splendid possibilities for public service, but may become a positive danger to the community.21 These apply with equal force, to the electronic media also.
Media trials
Media trials, apart from destroying the reputation of the person accused of a crime, seriously interfere with a fair trial in a court, which also is a fundamental right of the accused. It puts the Judge who is trying the case, as also the prosecutor, under tremendous pressure, which may, in an unfortunate case, lead to injustice. The media has to ensure accuracy in reporting; to give individuals who were affected by a news report, a fair chance to present their side; to protect the right to privacy of victims; and to protect the right of an accused, to a fair trial. The media has certain limitations. The information they get from their sources is often one-sided or motivated. It may not get a complete or accurate picture. Due to time constraints (as each wants to be the first to break the news), many a time unverified material, rumours masquerading as feed from “reliable sources”, false/misleading/incomplete information form the basis for media accusations and media trials. This may affect the rights and reputation of the person accused by the media, interfere with the investigation and trial and sometimes even influence the outcome. The Supreme Court, while recognising the importance and significance of the role of the media, has also pointed out the need for restrictions to ensure that trial by media will neither hamper fair investigation by the investigating agencies, nor prejudice the right of the accused to defend himself without hindrance. It needs to be emphasised that the legal presumption that an accused is deemed to be innocent until proven guilty, should not be destroyed through media trials, more so, during the investigation or prosecution. Media does not have the right to destroy or interfere with the right to reputation, right to privacy and right to fair trial of the person subjected to media trial. Premature publication during the progress of investigation may also enable the perpetrators, abettors to destroy evidence, threaten witnesses or abscond.
The Supreme Court has also referred to the impact of media (both print and electronic) coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high profile court cases, the media is often accused of provoking an atmosphere of public hysteria of a lynch mob, which not only makes a fair trial nearly impossible but means that regardless of the result of the trial, in public perception, the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny22. Notwithstanding its wide ambit, freedom of expression is not an absolute right, but is subject to imposition of reasonable restrictions in areas where it clashes with the individual’s right to privacy and fundamental right to reputation. The freedom of expression has to correlate with the right to a fair trial and in appropriate cases, the freedom of expression may have to yield to the right to fair trial23. The media cannot condemn someone as guilty, when the matter is still under investigation or when the court is seized of the matter.
The dangers of unrestricted and unregulated freedom of the media was highlighted by the Supreme Court24 as under:
297. There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom….
298. Despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.
***
301. Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic the rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution…. It is essential for the maintenance of dignity of courts and is one of the cardinal principles of the rule of law in a free democratic country, that the criticism or even the reporting particularly, in sub judice matters must be subjected to checks and balances so as not to interfere with the administration of justice.25
While investigative journalism to uncover wrongdoings and crimes is a meaningful crusade for the media, the media should also recognise its corresponding responsibility to act within well-defined legal limits; and that the media, howsoever bona fide its intentions are, cannot act as the Judge, jury, prosecutor and investigator, in regard to any matter pending before a court or under investigation. While reporting on crimes, investigations and accused, the media has to keep in mind that the reputation and credibility of a person, once lost as a result of a sustained media campaign/focus, can never be regained and if ultimately the investigation or the trial in a court proves that the accused was not guilty, the damage and loss to the person accused can never be undone. In a system where more number of cases end in acquittal than in conviction, several persons subjected to media trial become victims themselves without remedy as, in addition to the loss occasioned by a wrongful prosecution, they are prematurely branded as “guilty” by the Media. In the minds of the public, the impact of the media accusation and media trial is strong and long-lasting and even after acquittal, their innocence is suspect on account of the ingrained prejudice created by the media trial. While the media should expose crime and wrongdoing, it cannot don the role of a vigilante and portray allegations as facts and charges as findings of guilt.
CONCLUSION
What do people expect from Judges, by way of “justice delivery”? They expect a civil justice system which is positive, reliable, fair, balanced and consistent. They expect a criminal justice system which punishes the guilty, deters potential offenders, saves the innocent and protects the public and their interest. They expect a system which keeps tab on the pulse of the society and keeps pace with the changing times. They expect a change of the colonial era feudalistic mindset so as to serve a developing democracy with a burgeoning market economy by wielding proactive judicial tools to render justice to all sections of the society. They expect the higher judiciary to take a responsible activist role and take note of the ground realities, as also the difficulties, weaknesses and limitations of political regimes and handle public interest litigation in a responsible manner for the greater good. They expect alternative modes of dispute resolution to provide reliefs economically and expeditiously giving them the choice of tailor-made solutions to meet their requirements. In short, they expect easy access to justice and a speedy, efficient and economical justice delivery to fulfil their hopes and aspirations.
All stakeholders — the Judges, the High Courts, the Government, the Bar and the media, should discharge their obligations sincerely so that the justice delivery is strengthened and becomes meaningful so that the rule of law becomes vibrant.
† Former Judge, Supreme Court of India. Author of Anomalies in Law & Justice (EBC, 2021)
*The article has been published with kind permission of SCC Online cited as (2022) 8 SCC J-1
1 The figures are as in September 2020, being the figures given to Parliament.
2 Quoted in Rajesh Kumar Singh v. High Court of Judicature of M.P., (2007) 14 SCC 126.
3 K. Veeraswami v. Union of India, (1991) 3 SCC 655.
4 The Nature of the Judicial Process — Lecture I (Yale University Press, 1921).
5 Ishwar Chand Jain v. High Court of Punjab and Haryana, (1988) 3 SCC 370 [reiterated in Krishna Prasad Verma v. State of Bihar, (2019) 10 SCC 640].
6 An earlier version of this article published in (2015) 8 SCC J-1.
7 “K”, A Judicial Officer, In re, (2001) 3 SCC 54.
8 “K”, A Judicial Officer, In, re, (2001) 3 SCC 54, pp. 65-66, para 15.
9 Urban Improvement Trust v. Mohan Lal, (2010) 1 SCC 512, paras 5, 10 & 11.
10 Urban Improvement Trust v. Mohan Lal, (2010) 1 SCC 512, pp. 514 & 516.
11 Elizabeth Jacob v. District Collector, (2008) 15 SCC 166.
12 Id, 175-76, para 19.
13 N.R. Madhava Menon, “ Building a world class legal system : Roles and Responsibilities”.
14 These are dealt with in detail in R.V. Raveendran, “ How to be a Good Judge — Advice to new Judges”, (2012) 9 SCC J-5.
15 The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002.
16 R.C. Chandel v. High Court of M.P., (2012) 8 SCC 58 at p. 70.
17 Id, 70, para 29.
18 Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
19 H. Montgomery Hyde, Norman Birkett — The life of Lord Birkett of Ulverston (Quit).
20 M.K. Gandhi, The Law and the Lawyer.
21 Joseph Pulitzer, “ Planning a School of Journalism — The Basic Concept in 1904”, The North American Review, USA, Vol. 178, No. 570 (May 1904) p. 659.
22 R.K. Anand v. Delhi High Court, (2009) 8 SCC 106.
23 Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603 and Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
24 Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.
25 Id, 110-11, paras 297-98 & 301.
Hi, I have a case going on in Lucknow HC for 2 years for which I have meager hope of getting justice, I have been stuck for 2 years and my father has been put wrongfully in jail, I have all the proof for his alibi, and innocence but still nobody will hear us. He’s been an undertrial for 2 years without even a frame of his charge being done because we have asked the district court for some papers to prove our innocence but the court won’t give an order on that (let me remind you it’s been 2 years) My father is 61 years old.
I am unable to look for a good lawyer in Lucknow as nobody will help us because we are 2 girls (me and my sister) fighting for our father, we lost our mother in COVID last year and had to do all her rites alone because our father was not allowed to come.
Can someone please help us, with some suggestions on how to approach the judicial system in Delhi for help? How can I find a good lawyer who can genuinely help me.
A good lawyer who can genuinely help you? That’s a tough rider. I suggest you take a lottery ticket and pray that you hit the jackpot. At least your father can buy some comforts while in jail.
Sorry, for those apparently harsh words. But that is the sordid state of our justice delivery system. I can only pray for you, sisters, and your father.