JUDICIAL REFORMS

“JUDICIAL REFORMS”

BY

J.L. Gupta

            Though judiciary is one institution that has performed and delivered, yet it is an indisputable fact that there are long delays in the decision of disputes. Inevitably,the credibility of the Justice Delivery system is affected. Resultantly, remedial measures are a must.

First, we have to identify the causes of the back breaking delays that imperil the Justice Delivery System.

1.     If experience is the guide, the basic cause are the laws that regulate the proceedings before the courts in Civil and Criminal cases. We have the Civil Procedure Code, 1908; Criminal Procedure Code, 1898 as modified in1973 and the Evidence Act, 1872. No doubt, amendments have been periodically made. However, these are largely ‘cosmetic.’ Today, these laws are archaic. These are the ‘speed breakers’ on the road to justice. The technicalities of the procedural laws defeat the very purpose of law. Resolution of technicalities takes time and results in delay.

2.     Then, there are too many remedies like Appeals, Reviews and Revisions. These remedies especially when resorted to during the pendency of the main case are definitely leading to delay in the final decision of the disputes.

3.     Then, even though Justice is the first promise that the Constitution makes to the people of this country, yet, in the budget it occupies a very low position. Resultantly, the third basic cause of delay is the lack of proper infrastructure. At various places, elementary facilities like Proper courtrooms; staff; uninterrupted power supply and the number of judicial officers are far short of the actual requirements.

4.     And then, our Parliament and the State legislatures continue to promulgate new legislations. These lead to new cases. However, there is no corresponding provision for any additional facilities for adjudication of disputes that arise under these laws. In the process, not only delay but also fall in quality occurs.

           

What is the remedy? Or, is it that there are no pills for the ills that afflict the system? We cannot continue to push the issue under the carpet.

1.     The situation calls for radical measures. The best remedy in my view shall be to just scrap the old codes completely. It may meet resistance. Even from the Bar. But ultimately, it is bound to defeat delays and produce quicker decisions. That should be good for all.

2.     In any case, even if we be wary of scrapping the old codes, we have to simplify all the laws of procedure. The basic tenet is that the procedure followed in every case should be just and fair. So long as a reasonable opportunity to plead, prove and present the case has been afforded, the man who has failed to avail of it without a reasonable cause should not be allowed to complain that the procedure adopted by the court or authority was unfair or unjust. This should be all the more so if the record shows that the complainant happens to be a recalcitrant litigant who was only trying to delay the decision of the dispute.

3.     Such a measure has been adopted in the cases relating to the recovery of loans etc. given by banks and other financial institutions. Initially, regular suits had to be filed. The time taken was too long. Ultimately, in 1993, ‘Recovery of Debts Due to Banks and Financial Institutions Act’ was promulgated. The purpose was ‘expeditious adjudication’in cases where the amount was not less than Rs. Ten lakhs.

In S.22, it was  inter-alia provided that-

“The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and any rules, ... shall have power to regulate their own procedure including the places at which they shall have their sittings.”

            A salutary step calculated to simplify the procedure. Initially, there were some hiccups. Ultimately, it has helped in achieving the desired objective of expediting recovery of public moneys.

The provision is not a solitary instance. There are others too. The High Courts and the Supreme Court have the power to issue Writs and other directions etc. While exercising the constitutional power,   the Courts are not bound by the strict rules embodied in the Code of Civil Procedure. Substantial questions relating to the validity of laws and orders are considered almost every day. Now, If a simple principle of natural justice can be used in cases involving claims of substantial amounts or constitutional issues, what can be the possible rationale for not following it in cases involving petty disputes which are the primary cause of a logjam in courts? None whatsoever.

But then, why did the government not do the needful? Is it that being the single largest litigant in the country, it was the beneficiary of the law’s delays?

4.     Secondly, the number of remedies must be rationalised. The intervention at the interim stage of a case must be rare.

5.     Thirdly, the government must find funds to provide adequate infra-structural facilities. Constitutionally, the Judiciary is independent. But actually, it is dependant. Illustratively, if the government sanctions additional posts of Distt. Judges, the High Court has to ask the government for sanctioning the posts of stenographers etc.. The Finance Department resists. The bottlenecks in the secretariat delay the decision. The work suffers. If adequate funds were made available, the delays could be reduced.

6.     Still more, technology like dictation software could reduce dependence on staff especially when the sole help(the stenographer provided to a judicial officer) reports sick.  Lastly, the people must be convinced that the government means to make a change. It must become an example worthy of emulation. It must act fairly. Good governance would help in reducing litigation.

Otherwise, we may make laws till there is a shortage of ‘parchment and pens’ in the world. Yet, we may not have done enough. Defences against delay must be built in the minds of people who seek intervention of courts or preside over the proceedings.  Only then, the promise of Justice made by the Constitution shall become a reality.