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December 14, 1999


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E-Mail this column to a friend Arvind Lavakare

Towards Justice: through 'fast forward', not slow motion farces

According to a handbill received by post, the Mumbai Lawyers Association will, well after sunset on December 18, hold a public seminar on the theme that 'Delayed Justice Is Injustice Itself.' It will be attended, we are told, by a galaxy of 12 legal luminaries, one retired bureaucrat and one former deputy chief minister; rather appropriately, a veteran journalist who has become a veteran at writing a column a day will also figure on the seminar podium. And on the next day, the handbill further informs, a workshop of 50 persons invited from all over India will produce a recommendatory paper to be submitted to the Government of India for follow-up action.

All this could provide cannon fodder for the journalist of the column a day and photo ops for the Mumbai Lawyers Association office-bearers besides enabling them to rub shoulders with the elite of the legal world from Law Minister Ram Jethmalani downwards.

Whatever the motive of the proposed seminar, it will surely add fuel to the recent controversial war of words between Prime Minister A B Vajpayee and Chief Justice A S Anand. Even as both were present on the same platform recently to celebrate the golden jubilee of the country's Supreme Court, Vajpayee, forgetful of elementary decorum, referred to the pending 20 million cases in Indian courts, including 3.2 million in the high courts, and justified the 'derision and contempt' invited by our judicial system. Justice Anand, not one of those to take things lying down, put considerable onus of the delay on the apathy of the government to issues concerning judicial administration including shortage of judges, judicial officers and courthouses.

The truth of the matter is that the government and the judicial administration are not the only culprits; the list of the guilty must also include our legal system and our laws, aided and abetted by our lawyers and our laity.

Take the government first. On December 7 in the capital, Justice Anand pointed out that around 1,000 posts in the lower courts and 154 posts of judges in the high courts were lying vacant despite recommendations made a year ago by the chief justices of various states and the Chief Justice of India to the state and central governments. Instead of responding to that accusation, Vajpayee speaks of setting up of a National Judicial Commission for recommending judicial appointments and drawing up a code of ethics for the judiciary.

Clearly, Vajpayee has got his priorities wrong. Clearly, too, the PM and his law minister, last year's and this year's, have been indifferent about appointing the judges recommended by the Chief Justice's team. This indolence is reason enough to remind the PM, tending to be forgetful nowadays, of his own words at the golden jubilee function that 'India cannot afford justice in slow motion.'

Enter the Opposition parties. They too got their priorities perverted in the Lok Sabha last week. Instead of raising hackles over the resignation of Cabinet ministers chargesheeted in the Babri Masjid demolition case, they should have lambasted the government and the PM over the delay in the appointment of judges. But the "secular" Samajwadi Party and the Sonia Congress are so obsessed with Ayodhya that they totally forgot the Chief Justice's chargesheet of the other day against the government. Alternatively, two possible conclusions can be drawn: i. the Opposition is not bothered about the 20 million cases pending in our courts or ii. slow motion justice suits the Opposition.

Take the next accused: the judicial system. Our Chief Justice seems bothered only about the shortage of judges and courthouses. But unknown to all except those like this writer who have had to attend courts often enough to become wiser, there is also a shortage of stenographers, typists, typewriters, storage cabinets, clerks and…cloak rooms.

Five years ago, my cross-examination in a criminal case was adjourned one day because the stenographer was absent from work. A letter writer in The Indian Express informed us the other day that a very busy branch of the small causes court in Mumbai has only two stenos (who double as typists also) who are required to work for five courts, compelling even the judges to wait for them. As a result, certified copies of judgments, needed for further action, are considerably delayed. Indeed, there is at least one known case of a high court decree copy not being made available for one full year!

What is the accountability in our judicial system? None that is apparent to the public. Judgments are routinely reversed, albeit with strictures sometimes on the judge concerned. But what happens to the judge? Is he punished in any way for a job badly done? No one knows. Things have reached such a pass that one reads more and more of even high courts suspending their judgment from taking effect so as to enable the dissatisfied litigant to file his appeal to the superior court.

When the right of appeal is mandatory in our system, such judicial sentences kept under suspension are a proof of diffidence, of indifference --- very akin to the desk officer in a government office making a long noting in a file and then sending it up to the under secretary for his decision.

What are the powers of our judges? I learn that even an indent for a new typewriter in any Mumbai court needs the sanction of the prothonotary sitting in the high court!

Finally, we have our legal system and its exploitation by our lawyers and litigants. Our court fees are far too low to discourage corporate sharks from rushing to the counsels, learned or otherwise -- they have calculated, from experience, that the total opportunity cost of paying up a demand (from government or labour or anyone else) after the final court decision is attractively lower than that of paying up now.

Further, exhortations all these years to amend the antiquated colonial law of evidence have gone unheeded by government after government; thus, even a voluntary confession to the police is not admissible as evidence before a court and a witness is permitted to say one thing to the police and deny it totally in court. Next, there are far too many ladders to reach ultimate justice. A criminal case, for instance, travels up from the metropolitan magistrate to the sessions court to the high court to a two-bench high court to the Supreme Court to a revision appeal before a larger bench of the Supreme Court.

Most of the laws themselves are so loosely drafted (and so badly printed) that several interpretations are possible. And the punishment for offenders is so low that many of them are laughable --- imagine Harshad Mehta being found guilty, but fined Rs 25,000!

The lawyers --- called variously as advocates, senior advocates, counsels, attorneys and solicitors --- have become past masters at turning our laws, our legal and judicial systems into a massive bundle of impotence. As one who signed my employer's criminal complaint against one of its retired managers for violation of Section 630 of the Company's Act, 1956, by refusing to vacate a company-owned residence provided as a perquisite during employment, I was cross-examined by the opposing counsel on 11 different dates, but none of the questions even touched the fringe of the complaint's substance.

He wanted to examine my employment letter, ascertain my job description and verify the newspaper advertisement for the post held by me; he wanted to know how and why I knew the accused, whether I knew where he lived and what the area of those premises was. My "learned" counsel didn't object to all this immaterial and irrelevant questioning, believing that an objection would not help "our" case; the judge too did not object to her precious time being thus wasted, believing probably that if my counsel didn't object, she had no right or reason to do so on her own.

Further, while the law required that every court proceeding be conducted in my constant presence as the signing complainant, the accused stayed away from the court on lawful medical grounds till the cross-examination began. It was only after he expired that an out-of-court settlement was reached with his heirs and the luxurious apartment facing the sea was restored to the employer --- 5 1/2 years after the filing of the criminal complaint on in December 1989.

What then is Vajpayee talking of setting up a National Judicial Commission? If he is really serious about justice in India being delivered swift and clean, Vajpayee himself must finish the following agenda in a time-bound programme:

  • All the judicial appointments recommended by last year by Justice Anand's team must be in place in the next three months

  • A Parliamentary Committee under the legendary Fali Nariman must be in place within a week to a. amend the law relating to evidence and other laws which have been loosely drafted b. enhance low punishments stipulated in the laws c. restrict the number of appeals permitted d. work out a system of monetary fines for those judges whose decisions are overthrown on account of non-application of mind as well as for lawyers/litigants for every adjournment they seek for whatever reason. The recommendations of this committee must be debated in Parliament and converted into law by the time the courts reconvene after the summer vacation of 2000.

  • Arun Shourie's ministry of personnel and project implementation must be asked to finalise a. the staff needs of each court in the country b. the delegation of administrative/financial powers of various judicial levels c. revised structure of legal fees so as to make litigation a meaningful exercise without hurting the poor d. the physical parameters of a dignified courthouse with facilities (on payment) for typing, Xeroxing, telephoning, internet use, conferencing, and complete with a good canteen, computerized filing systems and clean cloak rooms. These recommendations must be converted into a law of Parliament by June and the needed staff of court clerks, stenos/typists and peons must be in place in two months thereafter --- either through fresh recruitment or, better still, through transfer of surplus manpower in state and central government service.

    If Vajpayee can take the above agenda to heart, he would help transform India's judicial scene in a dramatic manner the like of which no PM has ever attempted before. It's that "fast forward" mode which is the need of the hour; all else is a slow motion gimmick, like the seminar scheduled for Mumbai this coming Saturday.

    Arvind Lavakare

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