Sunday, 20 February 2011

REFORMING OUR JUSTICE DELIVERY SYSTEM

Here is a letter I had written to the Chief Justice of Kerala on 18 Nov 2004, listing out the major problems in our courts and suggesting some solutions. This might as well have been written to the Chief Justice of India with equal futility. Then why did I write? Just to tell these worthies that they may be fooling the public with abandon but there are citizens who are not fooled, though, for obvious reasons, there is a lot of helplessness, frustration and disgust.

The satyagraha mentioned in the last paragraph was held on 27 Jan 2005 but it lasted only less than 30 minutes before the police came and removed me to the police station. They threatened me with a charge of public nuisance but apparantly decided not to pursue it later. I was permitted to leave the police station after almost 3 hours!

The Hon’ble Chief Justice
High Court of Kerala
Ernakulam

REFORMING OUR JUSTICE DELIVERY SYSTEM


This letter is being addressed to you in your capacity as the competent authority responsible for maintaining the health of this system. I am of course one who is affected very very badly by its present very very poor health. My aim here is to highlight certain maliciousness manifest in the system and suggest some surgical measures needed to set them right.

Contempt of Court Act – anathema to the very concept of democracy.

I quote the National Commission to Review the Working of the Constitution (NCRWC): ‘the crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.  The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance'.

In this context, of the three -the law-making, law-executing and law-interpreting- organs of the constitution, the law-making is the best, the executive, the next best and the law-interpreting, the worst. The reasons are obvious. It is only the law-making politician who actually reaches out to the people, at least on the eve of elections, and demonstrates his accountability to them. Even the administration, the only one that can fail to deliver for want of resources, is responsive to the extent that a lot of things get done in a predictable manner and within time frames that are specified. To clarify this issue of resources, consider the case of a town having 10 road junctions needing to deploy traffic police. In this case, unless 10 traffic policemen are available at a time the traffic in the town as a whole can be adversely affected. Or, consider the case of regulating a crowd. Depending on the strength of the crowd, the strength of the police force also has to be comparable to ensure that nothing untoward happens. Anything less could result in turmoil.

Coming to the judiciary, leave alone the concept of accountability it is difficult to identify even any sense of responsibility. I quote the NCRWC:  'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.
                                                                                                                                       
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Still, in spite of all these, it is only the Judiciary that has been given unmerited and unwarranted shelter under a perverse Contempt of Court Act. While repealing this Act may be in the domain of the law-maker, there are any number of cases where courts have held legislations, in whole and in parts, invalid. The Contempt of Courts Act is one which can and should be abrogated by the judiciary itself in toto.

What we need in this democratic country is a Contempt of Citizen (Prevention of) Act and we need it urgently too. Given the activist role the judiciary has taken on itself, I suggest that the legislators be directed to bring in such a legislation without further delay.

Judicial accountability and the National Judicial Commission. A former CJI is on record that 20% judges are corrupt. Another CJI moaned that there is pressure on the Hawala Bench. Yet another one expressed helplessness in tackling an instance of mass leave by high court judges. Some CJsI, after demitting office, have even gone abroad and advised foreign governments to avoid taking issues to Indian courts since the delays are preposterous. One CJI, shortly after retiring, came to Kerala and passed some comments which, had it been made by anybody else, would have landed him/her behind bars for contempt of court. Then of course there are the Mysore, Rajasthan and Delhi cases reportedly involving the judges of the high courts there. Suffice to say that the need for a National Judicial Commission to try judges has been amply established. When even the President of India has asked his office to be brought under the purview of the Lok Ayukt, it is disconcerting that the judiciary has not responded positively to this need of ensuring transparency in its functions and integrity of conduct of its members.
                                                                                                        
Judicial Accessibility.  While the law-makers have reportedly favoured the establishment of  regional benches of the apex court and additional benches of the high courts in order to mitigate the problems of justice-seekers to whatever extent such a measure would help, the judiciary does not seem to be enthusiastic about it and is even denying the need for such a measure. In the case of Kerala, though the Government of Kerala is in favour of establishing the bench at Thiruvanantha-puram, the judiciary needs to take cognizance of the fact that when litigants from Thiruvanantha-puram can come to Ernakulam, attend the court proceedings and return to their homes the same day such facilities do not exist even for litigants from Kozhikode which is located centrally in the Malabar region. Thus ground realities dictate that a bench of the High Court needs to the established at the earliest at Kozhikode. Similarly, regional benches of the apex court also need to be established in such a manner that litigants can travel overnight by train, attend the court and return the next night.

The Judicial process.

Ms Arundhathi Roy was modest in declaring that in our courts ‘the process is worse than the judgement’. (Photostat copy of a letter received from a group of aggrieved consumers along with a translation of the text is attached for your perusal. The identities have been masked because it is not considered relevant.) Some key aspects of this process, their implications and suggested remedies are given in the following paragraphs.

Listing of cases. This is one area that needs to be spruced up on a war footing. One is shocked by the number of cases listed before each judge everyday when only a meagre fraction of this number is actually heard and decided on. The percentage of cases adjourned, for whatever reasons, would easily be of the order of 80 to 90%., implying that if 100 cases are listed 160 to 180 litigants, excluding witnesses, are bound to return after having wasted their resources-time, money and energy- for no fault of theirs. This is one of the most easily solved problems because it would not be difficult to reduce the number of cases listed for a day depending on the competence of the judge and catering for a margin for lapses on the part of the litigants themselves. I would suggest that if a judge can hear only 10 cases then not more than 15 cases should be listed.
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Calling the cases listed for the day in a chronological  order will also help the litigants to track their turn without the need to remain tensely attentive throughout inside the court hall.

                                                                                                                  
Personal appearance of litigants/representatives. This is another area that can be cleaned up with a bit of diligence on the part of judicial authorities. Except in criminal cases involving large number of witnesses and especially in cases involving only documentary evidence, the need for the affected parties to appear before the court should not arise more than once or in the worst case twice. The Consumer Protection Act (CPA) when enacted in 1986 was a more effective piece of legislation than it is now after two amendments. The reason is simple. When 5 parties – the petitioner, opposite party/parties, the judge(s), the advocates for the opposing parties- are involved in a case absence/unpreparedness of any one party affects the progress of the case adversely. This problem can be overcome ONLY by reducing the statements of the parties to writing and the judges studying them independently, noting observations and seeking clarifications in writing. The affected parties may be summoned only once before deciding the judgement and may be once more when passing the orders.

Involvement of advocates. It is shockingly true that in our courts advocates for the opposing parties in any case can find rules/ precedences to support their obviously opposing stands. Ultimately, it would appear to an onlooker, that the judge can as well deliver his order by tossing a coin! Further, it is not practically possible for the litigants to hire the services of equally competent advocates. Thus the richer person tends to get undue advantage. This is quite evident even in ‘Consumer Courts’ where the complainant is often a simple, law-biding citizen of modest means and the opposite parties are establishments/organizations with much greater resources at their disposal. When the second amendment to the CPA was being contemplated there was a suggestion that opposite parties should be allowed to engage advocates only if the complainant has engaged the services of an advocate. Unfortunately it did not materialize. The reasons are anybody’s guess. But there was certainly an opposition to it from the Bars. However the logic holds good even today and it applies to regular courts as much as to ‘consumer courts’.

Citizens’charter and working hours. As with government offices delivering various services of the government, the courts also need to publish Citizens’ charters giving out the details of the qualitative and quantitative norms and cost for their services. This will include displaying the working hours of the courts, approximate number of hearings, time frame for completion of a case based on the clause on which a charge has been framed and the authority who may be approached in case there is any default in following the Charter.

Grading of advocates and establishing norms for fees. To mitigate the injustice in economically weaker litigants not getting the services of competent advocates, there is a need to grade every advocate by his/her specialization, success rate etc and fix the fees accordingly. Then it should be mandated that the economically better off litigant can only hire the services of an advocate who is in the same category as the advocate hired by the economically weaker litigant. Since these may fall within the purview of procedures it is hoped that the courts have the jurisdiction to accept and implement them.

Irrationality and unfairness of decisions. There are any number of cases where the decisions are patently devoid of reason, leave alone fairness. There is an order of the Kerala High Court in a particular case making Section 56 of the CPC applicable while passing orders under Section 27 of the Consumer Protection Act. This in effect actually excluded women as a whole from the punitive provisions of a period legislation! Or, in other words, it literally gave women a license to cheat and get away with it! And there are similar orders of the apex court which one finds difficult to believe

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have actually been passed by supposedly learned judges. For example, 'courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities' and 'there can be no interference in revision merely because the decision is erroneous in law or in fact where there is no error pertaining to jurisdiction'.  I can quote similar instances in cases which I have personally pursued in consumer disputes redressal fora / commissions and even the regular courts.

Conclusion. It would be naïve on my part to presume that our justice delivery system will improve with writing a letter of this nature. It would be my effort to pursue this with a satyagraha in front of the High Court of Kerala at Ernakulam on 31 Dec 2004 and 01 Jan 2005. I shall be approaching all civic society groups that I know of or heard of, for whatever support they can offer. I am sure that the language of this letter is modest enough to convey the grim facts that needed to be conveyed. It is just in keeping with the dignity of a law-abiding citizen who according to our Constitution holds the highest office of the land. I quote the NCRWC : 'The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality'.

I shall be grateful if the contents of this letter is disseminated amoung your companion judges.

Looking forward to a favourable response.

Regards and best wishes.

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