I am extremely happy to listen to the discussion conducted by Mr.Arnab Goswamy of Times Now in his News Hour programme highlighting the observations made by Justice Markandeya Katju of Supreme Court on the functioning of lower judiciary. In any democratic set-up, independent and efficient judiciary is very important. We have very good systems in place in India and the only thing I feel is that we remain stagnant. Many in this country face numerous troubles with our legal system, but, yet, we don’t know as to how to correct our system. Except approaching the Magistrate Courts for Bails, approaching High Court under section 482 of Cr.P.C asking for directions, approaching High Court for anticipatory Bails, approaching High Courts under Article 226 of Constitution of India and filing Public Interest Litigations, people are not comfortable with our legal system. Many complain about the corruption and negligence in the registrar’s office attached to Court, standards in Judiciary, technicalities and the delay. Many are not interested to approach the Civil Courts especially in this country. Many tries to get their rights protected through Police by bribing them and by approaching goondas and even if it is not possible, they remain silent, but, they do not think about approaching courts. Only in rarest of rare cases and when there is no alternative option, people try to approach Civil Courts in this country. If we don’t correct our legal system, then, we can not think about reducing the crime rate in this country logically.
I really feel ashamed of that this great country could not solve the problem of delays in Courts with the entire 9% GDP rate, world looking at us, Obama praising us and with all the intelligence. Efficient, speedy, effective and independent legal system is the hall-mark of any progressing nation. We may say that the problem of delay persists even in developed countries like USA and that is the reason why they are encouraging ADR (Alternative Dispute Resolution Mechanism). Following USA or any other country is not the solution. If the USA could not find solution to the problem of delays in Courts, we should be able to find a solution. We have all the talent in this country, but, the thing is that no one is interested about the welfare of the society and systematic changes. Only few activists talk about few things like environment, political reforms, corruption etc., but, we don’t end up addressing the problem and rather we are happy with sensationalizing something. Recently media has focussed on Talwar’s case and media has spent considerable time following-up the issue. That was actually a simple case and there were many shocking instances in this country. There was no need to spend that much time on Talwar’s case, but, even then, National Media felt comfortable following-up the story. Likewise, if the entire National Media takes up the issue of delays in Courts in this country and demand for the solution for the delays in courts and the issues of corruption, then, I am sure there will be change.
I don’t respect the so-called Senior and costly advocates of this country charging 25 lac for hearing. Individually, they might have achieved so much, but, being the member of the bar and being the enlightened, they should also raise their voice in a considerable way. They might not be able to bring the change in the system, but, if they raise their voice wholeheartedly, then, I am sure that it will reach the top court and it will reach even the Union Government. We know the problems that advocates practicing in lower courts may not agree for the right reforms in the system and we have seen the agitations in the past when certain legal reforms were moved. Even when it comes to the issue of conducting a Bar Exam, there was silly and illogical resistance from the so-called lawyers and Bar Exam had to be postponed in certain parts of the country.
The legal system in this country requires correction. How to correct it is the problem. There should be a proper planning in this regard. I always felt that if the issue of legal reforms is moved by the Supreme Court or supervised, then, the Union Government will certainly co-operate with the courts. I have heard the proposal of establishment of additional Fast Track Courts and I have also heard guidelines as to how the Government should represent its cases as the Government is the big litigant in Courts and it delays the legal process most of the times. It is true that the Government should behave in a responsible manner when it is a litigant and it is true that there is also a requirement of infrastructure build-up in the legal system. But, those are not the real issues for the delays in Courts. We need to deal with the out-dated procedures and we need to bring simple reforms and it will produce great results.
I would like to say few simple things for correcting our legal system as follows:
- With the existing procedural laws, we can not reduce the delay in courts. As such, there is an urgent need to reform the procedural laws. We need to completely abolish the procedural laws like Civil Procedure Code and we need to bring-in a simple procedure in the place of Civil Procedure Code. It can very easily be done, but, it may require amendments and it needs to be passed in Parliament.
- Each High Court or a supervising committee at the National Level consisting of retired judges or the acting judges should think as to how to make the registrar’s office attached to any court really efficient and corruption free. Court papers disappear in some parts of the country and we don’t know as to how to fix the problem. We need to effectively use technology and every court in this country should be computerized. While some courts including lower courts are effective computerized, still, many courts in this country are not computerized. A litigant is to be provided the important information about his case on-line. It is very much possible and it is also not a costly exercise.
- There should be a special wing to look at the issues of corruption in the Lower Court in this country. The corruption wing should really be effective and the High Court can supervise this wing. There should be proper mechanism to receive complaints of corruption in Lower Courts while the unscrupulous complainants can be discouraged in the process.
- In some parts of the country, the legal professionals behave in a very unethical manner and they dare to threaten even the judges, threaten the litigants and they dare to threaten their colleagues from other parts of the state or the country. This goondas like professionals are not professionals at all though they could manage to get a law degree with our faulty system. This kind of professionals should be sent to jail irrespective of the uproar of the Bar Associations which are functioning as if they are the political parties of late. The High Court should be pro-active in this regard. If there exist terror like situation in any Lower Court, then, sufficient protection is to be provided to that Court and it is not costly affair and it is very much possible.
- The issue of appointment of judges of High Courts requires a re-look. I really get shocked to see some as judges and to see as to how they function in the court. I have seen a law commission report too referring to this attitude of few judges. There are good judges, but, the fact is that the standards are getting degraded day- by-day. How to correct this is very important. There should be an efficient mechanism for removal of High Court Judges and let this removed judges or suspended judges take the salary till they are found guilty of misconduct by the established procedure. Once the judge feels that he can not literally be removed, then, it is very difficult to control them and absolute power corrupts the system. This is a serious issue and it is not a fight between executive and judiciary and it is important for the judiciary to regain the lost dignity and to regain the confidence of the courts. The Supreme Court or the High Courts are respected by the public now as they give directives in sensitive cases and as they entertain and give directions to the Government in Public Interest Litigations. I am not in favour of conferring power on the judiciary to look into every aspect of executive functioning with the aid of judicial activism or with the aid of expansion of Part-III of constitution of India. Elected representatives are always supreme and if the system is faulted, we need to think as to how to correct the system. The Courts should function as per the mandate in the Constitution of India. I am literally shocked to note few directions from the High Courts interfering in sensitive and political issues and this attitude will damage the image of the judiciary. If the attitude of a High Court is not satisfactory, then, the committee of the Supreme Court should be empowered to suspend such a judge immediately and it will bring accountability in the system.
- It is also true that there can be unscrupulous legal professionals playing with the courts and misusing the court process. Many are talking about ombudsmen etc. to look at the complaints against the professionals. There is a problem with this system and there is a problem with unscrupulous and habitual litigants. These habitual litigants can black-mail the professionals and as such the profession and good professionals will get affected if the complaints against professionals are loosely entertained. The solution is simple. If a litigant is not comfortable with his lawyer, then, the litigant should be allowed to state his grievance to the judge and the judges should not insist on engaging lawyers always. The litigant should be allowed to change his counsel as per his wish and upon making such oral or written request to the Court. As per the existing system, for changing an advocate, the litigant should “get a no-objection from his lawyer’ and the advocates will not give no objection in many cases. On the same footing if an advocate feels that a litigant is not bonafide, then, upon a request to the court, he should be allowed to discharge from the case. Other contractual issues between the client and the professional can be decided in a separate proceeding. This set-up will solve many problems.
We should also seriously think about recording the court proceedings and it will enable the High Courts to effectively administer the Lower Courts, enable the Supreme Court to effectively super-wise the High Courts and enable the Chief Justice of Supreme Court to look at the proceedings conducted by other judges of Supreme Court. These recorded proceedings need not be released, but, these complete recordings can be used for effective administration. This is an important move and we need to think about it seriously. If court proceedings are recorded, then, even unscrupulous and habitual litigants also will get exposed and attitude of the professionals also will be under check and this system if implemented and used towards the objective, can be very useful.
There is a lot to tell as to how to correct our legal system. The system can be corrected with proper planning. But, the judiciary and the executive should come together for correcting this system. No one should hinder the reform process and there can be public debate as to how to correct our legal system. It is important for the citizens, for the professionals and for the country to reform our legal system.
It is not that the Supreme Court or the judges do not recognize the problems in the system. I have seen a specific observation of Supreme Court in a case where the constitution of National Company Law Tribunal was under challenge and in that case, the Supreme Court has taken note of the enormous delay in courts. So, we know the problems and there is a need to find solution and ADR is not the solution for everything. If right to legal aid is a fundamental right, then, fundamental rights of the citizens are getting affected on regular basis with our legal system and its my opinion. There are honest and efficient judges, professionals and people in the system and all respect to them.
Whenever an opportunity comes, media should focus at the delay in Courts and should pressurize the Government to bring proper reforms. But, with our federal structure and complications in the system, even the initiatives of the Good Government gets delayed or defeated by vested interest groups. Media should support the Good initiatives of the Government.
Note: the views expressed are my personal, have no intention to insult any one or the system and I have all respect to the judges. The views are expressed only in public interest.
Author:
V.D. RAO, Advocate, Madras High Court.
Email: vdrao_attorney@yahoo.co.in
