L A W  A N D  J U S T I C E

Justice on the Rocks

TO say that the Indian judicial system is in a deep crisis is to state the obvious. The scams involving some members of even the Indian higher judiciary in corruption, bribery, sex, nepotism and abuse of power has brought under focus the need for reform of the judicial system. The image of the judiciary and its credibility are low. The prohibitively expensive nature of the process of securing justice defeats the very purpose for which a system has been created. This adversely impacts the judicial system and delivery of justice to the ordinary citizen. All this suits the ruling establishment and the rich since those who have the power of force or money do not need the courts to get justice. It is the poor and the oppressed, the common people who desperately need administration of justice. It is in this context that senior lawyer and analyst Joginder Singh Toor discusses the judicial system.

Over 1.09 billion people living on an enormous area of 3,287,590 square kms, most of it under private ownership, having more than a thousand Central Acts on the statute book and an equal number of state laws, are sure to be bogged down by civil and criminal disputes.  A vast diverse multi cultural and multi lingual country requires a large and efficient   justice delivery system adequate in capacity, authority and equipment. Does India have this?

A learned former Chief Justice of India V.N.Khare points out that 1.8 crore cases are filed every year and 1.5 crore get disposed of. The difference of input and the output according to him is marginal, but there are reasons, which he validly considers are responsible for delay in disposal of cases, such as there is lack of infrastructure. The population, judge ratio in India is 13.5 judge per one million people as compared to 135 to 150 per million in advanced countries. Budget allocations for justice delivery system are low, almost meager, Rs.700 crore for 5 year plan [2002-07] out of Rs.15, 25,639 crore .non plan expenditure is, of course, reasonable adequate. There were 13,000 judges including 26 Supreme Court Judges and 640 high court Judges in December last year. One Judge on an average delivers 1,150 judgments per year and is not able to meet the increasing number of cases. There are 116 vacancies in the high courts out of total sanctioned strength of 675. The judiciary is now listed in the concurrent list regarding which the Central and the states both can make law. It has given rise to number of legislations, which in turn have increased disputes also. Earlier it was in the Union List.

The figures available with the Law Ministry show that by November 2005 there were 33,635 cases pending in the Supreme Court and 34,24,518 cases in various high courts. The number of case pending in the lower courts crosses the figure of 30 million. According to N. Vittal, former Central Vigilance Commissioner, “The average time span for a dispute to be resolved through the court system is about twenty years. Litigation has become a convenient method for avoiding prompt retribution by many people on the wrong side of law. The Bible says that the path to hell is paved with good intentions. The legal system is meant to punish the criminal and protect the law-abiding citizen. Many a time, the criminals exploit the legal process itself to escape punishment. Take for example the widespread crime of corruption. One reason why we cannot check corruption is because the corrupt, with the financial clout of their ill-gotten wealth, are able to engage the best legal brains and quibble their way through the legal system and laugh all the way to the bank.”

This is one problem plaguing the judicial system in India. Cost in terms of money spent and time consumed in running from one court to another is another. Legal system suffers from cumbersome, multifaceted and intricate laws and rule and regulations that not even lawyers sometimes understand. Superior courts often throw out judgments and   rebuke the lower rungs of judiciary for motivated or otherwise interpretation of laws. Corruption too has been hurting the system.

Delay in delivering of justice is a common experience and denial of justice is now every body's belief. Litigants often visit wayside or well-established astrologers to seek solace. Such is the desperation.   The last hope of the people is failing them.

A Committee consisting of three Judges headed by Justice D.S.Tewatia, a former judge of the Punjab and Haryana High Court examined all the previous cause lists by calculating the number of cases filed and decided, the number of judges having worked, the number of per judge working days and the number of cases disposed per judge. It concluded if all the vacancies had been filled, there would not have been a single case pending whereas, there are 2,40,000 cases pending in the Punjab and Haryana High Court alone. The oldest being from 1969 and the old cases being listed for hearing are of the year 1980 to 1985. Equally bad is the inadequacy of funds, courts lack proper courtrooms, and basic facilities, such as furniture, fans, stationary much less computers or typewriters.

Are there other reasons for multiplicity of judicial proceedings and are there other ways and means to cut them short?

Why do people at all come to courts? Some times petty disputes relating to boundaries, nuisance, encroachment, interference in possession, canal watercourses and domestic violence make people rush to courts. These can be handled at initial stage by spot inspection, demarcation, preventive actions, and conciliation by involving local public men and by effective decisive steps at administrative level. These cases form major part of lower court litigation, in which, for example, on a complaint of encroachment, report of the patwari remains part of controversy up to high court. The officers instead of going to the spot, verifying facts and solving the matter and passing effective orders, play truants.  Similarly other small cases can be decided effectively at the grass root level, by involving local people and local officers.

There is then a general trend of denying signatures on documents, so as to prolong the matter, shifting the burden of probe on the other party. In the event it is established when, a so called document expert who has never attended a university appears as an expert witness to say that signature or thumb impression, in his opinion, do not tally. Imposing heavy cost, as in foreign countries, burdening the pretending party with entire expense of litigation and by regulating expert evidence, can curb this practice.

Courts in their judgments often identify unscrupulous litigants producing false documents and witnesses making false statements, but they are not proceeded against for perjury or forgery because of procedural wrangles. In some cases the complaint has to be filed by the court that decides the case. This is generally avoided, as no presiding officer wants to become a litigant himself. The law needs amendment.

Cardinal source of increased litigation are corrupt, ignorant or mischievous government officers who deliberately pass wrong orders for consideration, or under command of the politician or for other ulterior motives. Lawmakers and law enforcers have by and large become lawbreakers. People have to rush to the high courts to redress grievance by way of writ petitions or for directions in criminal matters.  The High Courts do provide relief in genuine cases, which is quite large in number. This unwanted and un-warranted spurt of this litigation against the State and State officers is the major cause in delaying the disposal of other cases.

Gravity of situation does not end here. The High Courts pass orders, which some times are not obeyed. People have, then to file contempt petitions against the officers and contemnors to have the orders obeyed. There are more than 3,000 contempt petitions pending in the Punjab and Haryana High Court alone besides large number of such petitions disposed with on apology or undertaking given.  The government is the biggest litigants either way, facing the charges of the public and its employees or   petitioning   the courts.

A society committed to public welfare, rule of law and timely justice delivery system cannot progress if the systems do not function efficiently and properly. We cannot remain contented by providing justice though delayed. It has to identify its hindrances and deal with them. A corrective prompt intervention of law enforcing agencies, proper handling at initial stage can certainly reduce litigation significantly and effectively.

[Joginder Singh Toor is a senior lawyer at the Punjab and Haryana high Court. Jogindersingh_toor@yahoo.com]

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