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Common Cause and Lokniti Programme of the Centre for the Study of Developing Societies (CSDS), launched India’s first Status of Policing in India Report (SPIR 2018) at the India Habitat Centre on May 9.

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WHERE JUSTICE REMAINS ELUSIVE

*Indira Unninayar

Overview – the crucial need to change the Indian justice system

It is high time we in India give ourselves a system that genuinely promotes rather than actively hinders the dispensation of justice. For, India is grappling with an unprecedented loss of public faith in its judiciary.

Our present justice system is ridden with a multitude of problems -outdated laws and antiquated systems, maze of procedural complexities, a strongly ‘adversarial’ character and the aberration of judges appointing judges. It is cloaked in a colonial mindset where the litigant is looked down upon and talked down to. It is mired in opacity and lacks a true and effective communication system. It is devoid of any accurate record of what is argued in courts.

We need to shed the system of all this and more, after a complete review and overhaul. Yet, it is possible to introduce some fundamental and much needed changes with a few small steps in the right direction.

The right to justice is a guaranteed right; yet justice is rare. The ad hoc approach prevents strategic, systemic solutions

The right to justice is a guaranteed right under the Constitution of India: it is part of its Preamble, the basic structure of the Constitution. It has been repeatedly interpreted and upheld under Article 21, the right to protection of life and personal liberty and under Article 14, the right to equal treatment before the law. Court hearings are meant to be public hearings, and their processes simple, transparent and accessible.

Yet, securing justice is a huge and unequal struggle and is sadly the rare exception rather than the rule. Today there are over 3.2crore cases pending in Indian courts. This figure does not include cases before tribunals and other bodies that were created to handle and expeditiously dispose of cases requiring specialized treatment; it also does not include the many disputes that are kept out of courts for reasons of unaffordability or inaccessibility.

One of the biggest reasons attributed to the failure in addressing mounting backlogs of cases is the absence of will to solve the problem. It is said that “a problem well-defined is a problem halfsolved”, but such problem-definition and strategic insight, readily available in Law Commission reports, have been resolutely ignored for the past 60 years. This absence of strategy is reflected in the ad hoc piecemeal approach to solutions that are often half-baked with little thought behind them. These include the selective adoption of ‘Information Technology’, the increase in court infrastructure without its proper management, and the knee-jerk ‘filling of vacancies’ under risk of censure by the Supreme Court.

The judiciary has been given extremely low importance by the Indian Government with a meagre budget-allocation of 0.2% of our Gross National Product. This is far lower than corresponding allocations of 1.2% in Singapore, 4.3% in the U.K. and 1.4% in the U.S., and is woefully inadequate to attract and retain talent or institute and conduct much needed training, refresher, management and leadership programmes. Neglected and outdated, it can best be described as ‘obsolescent’ in its current form.

In the present context, the biggest reason for DELAY is attributed to the inadequate number of judges/courts. However, that is only part of the problem. Indeed, the other major contributors are theway in which cases are managed, the way they are heard or NOT heard, the quality of ‘listening’ and the ‘attitude’ of participants, all of which result in huge inefficiencies. Another significant contributor is the complete absence of proper judicial records and the total lack of transparency and accountability in the system.

These inefficiencies and multiple problems have, bit by bit by bit, eroded public confidence in the judiciary

A brief description of some typical situations in an Indian court of law gives a glimpse of the present system, and provides an understanding of the nature and magnitude of the problem and its deeply entrenched status.

a. Uncertainty that the case will be taken up on the appointed day, resulting in a colossal waste of time & resources, with communication remaining a non-starter

To begin with, there is huge uncertainty about whether your case, even if scheduled for a specified day, will actually be taken up at all.

In the lower courts, you are unsure whether the judge is going to be in or not and, if y---es, when. So, at least one hour may be spent in trying to determine whether the judge is on leave for the day. Even so, you are unsure whether your case is going to be on the list or not. The ‘cause list’ or ‘case list’ is put up on a board outside the court room at the last minute, not on the previous day, and until then you cannot be sure whether your matter will feature on it or not. You are also not sure whether the lawyer representing the opposite side will turn up, whether he/she will seek yet another adjournment, and whether the judge will be willing to hear your case. In other words, you do not know whether your case will be ‘taken up’ even if you have travelled thousands of miles to be in court on the appointed day. On the other hand, if you reach even a few minutes after your case is called out, there is a fair chance that a prolonged adjournment might have been given without assigning any reason. That date, even if inconvenient, becomes impossible to move, as the opposite party is no longer available for such change. Such ‘giving of dates’ might happen despite the general convention of waiting for both parties prior to such adjournments. At the same time, there are occasions when you end up waiting indefinitely, sometimes for the entire day, for the opposite party to put in an appearance. And if the opposite party deliberately stays away from the court, the case is simply not taken up!

It also does not help that the Supreme Court rarely fixes dates for matters; dates are generally finalized only a week in advance. Before that, even if a date is indicated in your ‘case-status’ on the website, it may be altered repeatedly for months together. You just have to wait upon the convenience of the court for the day that your matter may be finally taken up and heard.

There could be up to 100-200 cases listed on a 5 or 5 ½ hour working day in the lower courts. About 70 odd cases may be listed in the Supreme Court and the High Courts. A vast majority of these - about 80-90 percent- are adjourned, as there is no effective hearing at all. The waste is colossal: around 400 man-days per court in the lower courts (100 cases per day x 2 parties x 2 lawyers) or 200 man-days per court in the higher courts (50 cases per day x 2 parties x 2 lawyers), assuming a minimum of 2 parties with 2 lawyers in each adjourned case. There are 18,000 odd courts in this country and most operate in this manner. Lakhs of litigants rush to the courts, absenting themselves from work, incurring expenditure on travel, refreshment and accommodation, to wait for hours on end and return without even a hearing! They have to pay their lawyers for their time whether the case is taken up or not. Each day, case files have to be carried back and forth from the courts, under-trial accused have to be summoned from jails in criminal cases, and there is an artificial rush and frenzy everywhere. The next date given is typically 1 month to 3 months or even 6 months later.

Cases are listed 30-40 times or more, even though eventually they are only ‘heard’ properly on 3-6 occasions. There is a case that is known to have been listed 129 times! Cases should be listed just 5-6 or even 10 times and given effective hearings on at least 90% of the dates, instead of it being the other way round. That would allow for more meaningful hearings on most of the dates instead of the situation being the very opposite.

b. Waste of precious resources

A hapless judge, burdened with 70-200 files, cannot possibly be adequately prepared to apply his/her judicial mind in an effective and focused manner to all the cases listed for the day. At the same time, due to frequent adjournments, lawyers and litigants are compelled to prepare for the same matter over and over again, or, worse still, come unprepared to the court. The waste of national human resources is of mountainous proportion. Litigants and lawyers end up waiting indefinitely, often for the better part of their day with talent being spent on ‘taking dates’. Judges waste their judicial mind and time in ‘giving dates’ instead of actively hearing the parties and understanding their cases. A huge workforce is kept idle for most of the day and made to waste precious productive hours. This workforce of thousands of judges and lakhs of lawyers could be far more gainfully employed in a more efficient and effective system.

c. The system actively benefits those who gain from the delay; further preventing any possibility of true communication/ understanding

The law expressly prohibits adjournments for the asking, but you can seek and get adjournments for the most absurd of reasons. More often than not, reasons for adjournments are neither asked for nor provided, and it is the opposition to such adjournments that is questioned. Parties can also file frivolous miscellaneous applications and block the progress of the main case with ease, as these applications are first taken up, heard and disposed of before the main case is allowed to proceed. Such applications are not even checked for their relevance, and the opposite parties are made to file their replies and suffer endless adjournments until their disposal. Protests to such irrelevant and unreasonable applications and adjournments are frowned upon given the prevailing ‘date-taking culture’.

Thus, from a little dispute/ seed of a problem, the system supports the creation of a huge tree with several branches of sub-disputes and cross-disputes. Ultimately, the root of the problem remains unaddressed. Instead, there are numerous fresh disputes, which too are dealt with in a very peripheral manner, and the problem lingers. It now assumes multi-dimensional form and gets considerably magnified. The original dispute is lost in these layers/ branches of new disputes and becomes infructuous after long delays. The net result is that the party who has come to court in search of justice is worn out and exhausted, and is primarily focused on finishing off its never-ending legal battle. It would rather give up than wait interminably, as there is neither any end in sight nor is there any hope for justice.

Our Government, a party in over 60% of the pending cases, is a major contributor to delays. The taxpayer has to bear the cost of these delays and pay for expensive government lawyers.

Government disputes linger due to dilatory tactics such as silence or incorrect responses by the Government. Despite the National Litigation Policy mandating the Government to be a responsible litigant, it still resorts to these ‘safer’ ploys of silence and erroneous replies. Cases with the Government as party go on for years with little logic or accountability.

d. Absence of authoritative records and collection of correct information; with little control over duration of cases

It is hard to believe that even after 60 years of independence, we have a judicial system that does not create or compile complete and correct records of court proceedings.

A lawyer might have argued for anywhere between five minutes to half an hour or even several hours in a matter, but all that may be recorded in the court’s order is “Heard. List for date _____”.There is no verbatim recording of arguments or what takes place in court. The stenographer only records what the judge dictates or asks him/her to ‘take down’.

Thus there is NO transcribed record of oral submissions or averments or statements made in court even though judicial decisions rely heavily upon them. Even during trials, statements of witnesses are NOT recorded verbatim, but are considerably edited by the opposing lawyer or the judge.

In general, it is entirely left to the discretion of the judge to record what according to him/her took place or was said in the court. Much of justice is filtered out at this stage itself.

As far as court orders are concerned, they are either dictated by the judge in open court or are ‘reserved’ to be recorded later in the privacy of chambers, again, entirely at the discretion of the judge. There are known instances where such orders do not reflect what transpired in court.

As a result of all this, there is an absence of reliable or authentic court records of arguments/ submissions/statements. There is no record of what parties plead on different occasions, and they are able to change their stands on different dates with impunity. Parties therefore are forced to argue on changing grounds and to deal with shifting stands over different dates.

Trials are not very different. Questions are painfully lengthy and worded in clumsy double negatives. These questions are put to witnesses in the form of absurd suggestions rather than straight forward questions. They aim to conceal and confound rather than reveal and understand. Questions and answers cannot flow smoothly, as there are lengthy pauses to paraphrase and dictate them (often incorrectly) to the stenographer. This disrupts the flow and recording of information, quite apart from prolonging the proceedings. Witnesses are not treated well and are subjected to ‘routine’ questions such as “I put it to you that all that you say is concocted and false”! They have to wait endlessly to be cross-examined and are asked to return several times to give their statements.

Matters trundle on with little control over their progress; judges have to rely on their memories and terse court orders to recollect the status of cases before them and what they are listed for. If judges get transferred in between, something that happens quite frequently, entire cases have to be re-argued all over again for the benefit of the new judge. If for some reason, a matter/case falls off the radar of the system, it could be taken up when it is suddenly re-discovered, with little explanation or remorse.

e. Ambiguity and errors in court orders & judgments

Quite often, brief court orders dictated in haste are incorrect or capable of being interpreted in more ways than one. As a result, applications have to be filed for correction/rectification, which further delays matters.

Judges may also alter contents of records at their discretion, and litigants have no choice but to accept those as the ‘true’ record.

Judgments that are meant to conclude matters seldom do so. They are generally too long and verbose containing obiter dicta or observations and comments on matters that are not in question, instead of limiting themselves to findings of fact, legal principles involved, ratios and final orders/ directions. They are hard to comprehend even after wading through scores of pages, as they ramble considerably and mostly contain little more than expressions of feelings/opinions and arduous narrations of the parties’ submissions recorded in a jumbled manner. They are also poorly edited thereby providing considerable scope for further dispute. They differ vastly from the judgments of yesteryears that are easy to read and understand, as they are precise, lucid and to the point.

Some judges force/incorrectly record ‘consent orders’ making a party accept terms that are adverse to its interests, merely to ‘dispose of’ cases and avoid hearing and deciding matters that are ‘inconvenient’ or ‘controversial’. This also inflates their ‘disposal rates’ and projects them in a favourable light. Examples abound in matters relating to the rights of hawkers and rickshaw-pullers, matters relating to State bodies such as the Municipal Corporation of Delhi, Delhi Police and the Central Board of Secondary Education and even matters relating to domestic violence and child custody. There are also judges who refuse to apply the law or circumvent it, and exercise discretion to nurture their ‘biases’. They pass ‘anti-poor’ ‘anti-justice’ ‘anti-women’ or ‘anti-men’ judgments instead of using their wide-ranging powers under their writ jurisdiction to render justice. They even fail to invoke basic legal provisions to right wrongs and provide succour to the needy.

f. Little accountability of lawyers and litigants

The Indian system supports ‘lawyering’ rather than the ‘rendition of justice’. Opposing parties are encouraged to prolong their matters rather than identify clear-cut issues and bring their disputes to a speedy end. Lawyers, who generally charge per hearing, have little interest in aiding closure of their cases. They encourage their parties to file meaningless applications seeking reliefs that they do not require, either to prolong the case or to put up a false front. Parties then become victims to these added cases/applications. Instead, a preliminary consultation with the court to identify clear-cut issues would help avoid such mindless activity.

The conduct of lawyers, litigants and judges is not recorded. Hence, lawyers and litigants get away with bullying and threatening the opposite parties, even to the extent of shoving and grabbing them by their collar in open court. Judges prefer not to get involved, even though they are in charge of court proceedings. On one such occasion in a district court in Bangalore, a judge claimed he had ‘looked the other way’ at the very moment that a lawyer had assaulted the opposing litigant. The litigant was representing himself and therefore had no lawyer to stand up for him. The judge in turn, insisted he had not witnessed the incident although it had taken place under his very nose and refused to take action against the assaulting lawyer.

Although the law insists upon the truth, lying on oath and in the courts is quite common and goes unpunished. Lawyers and litigants are seldom convicted for perjury, or for forgery when false documents are filed or for making incorrect or misleading statements ‘at the bar’.

g. Environment of fear, servility & absence of accountability or recourse– the biggest hurdles to communication and justice

The culture prevailing in the courts is one of servility and deference, despite the fact that the Bar Council Rules expressly prohibit this. In fact, the Rules require lawyers to submit grievances with respect to serious complaints against judicial officers to proper authorities (Part VI, Rules Governing Advocates - Chapter II, Section I – Duty to the Court, Rules 1-4).

However, the legacy of the colonial culture of ‘talking down’ to people continues. Thus, within the court, the judge assumes unto himself (or herself) the unquestionable right to decide whether to hear a party, whether to interrupt, or to stop hearing it altogether.

The atmosphere prevailing is one of palpable fear. The judge must not be upset. You must speak ‘properly’, with liberal use of ‘Janaab’, ‘Your Honour, ‘May it please your Lordship’, and similar obsequious expressions. Violence in speech is commonplace. Courtesy and dignity in address are rare. You are told to “shut up”, if the judge is displeased. The court staff tells you not to turn your back on the judge, and generally browbeats you into an attitude of deference and submission. Lawyers and litigants physically bow before the judge while entering and leaving courtrooms!

You are threatened with ‘contempt proceedings’ for ‘lowering the dignity of the court’, if you make bold to question wrongful conduct of the judge. Last year, a Delhi High Court judge in gross violation of The Mental Health Act, sent an argumentative litigant to a mental health institution for 15 days. The pretext used was that he was ‘vexatious’, ‘disrespectful’ and ‘over-smart’, and was found to be audio-recording court proceedings in his case. His right to argue on behalf of third parties has thereafter been suspended.

On the other hand, judges feel free to say what they please: for instance, in a recent matter relating to the correction of date of birth in a CBSE certificate, a Supreme Court judge said - “Oh so what, you can have 20 different dates of birth!”, knowing that there would be no formal record of his saying so. Even though the matter was meritorious, he refused to listen as he had already ‘made up his mind’. Another Supreme Court judge admonished the opposing counsel:”Keep quiet, don’t tell me how to handle my work”, when he was entertaining an application by the DDA seeking to “correct” its one year old affidavit, an application that ought to have been dismissed with stiff costs and censure. About a year ago, a judge of the Punjab & Haryana High Court told assisting counsel to “Shut …down” and then wrongly dismissed the case in anger, without giving a fair hearing to the aggrieved party. This happened in a family matter where any form of assistance ought to have been welcome.

Such incidents of discourteous address and abrupt dismissal of cases are not uncommon, even at the cost of justice. This is so despite the fact that High Court judges must undergo evaluation on parameters such as ‘judicial potential’ to determine their suitability for such appointment. And ‘judicial potential’ includes inter alia maturity, poise/equanimity of temperament, patience and fairness. It is these judges of the High Courts who are thereafter ‘elevated’ onward to the Supreme Court of India. There is little consequence to judges even if they pass grossly unlawful or wrong orders. In fact, several orders and judgments reflect serious breakdown in logic, as there is little connection between facts, legal reasoning and conclusions and there are vital ‘missing links’ in drawing these connections. There is thus little accountability in laying down laws as binding precedents. But there is no recourse, no grievance redress system and no accountability for the routine denial of justice in courts. The problem of avoidable adjournments and needless delays is also widely acknowledged, but little is done to rectify it.

The pervasive attitude of servility extends to the labeling of documents, which, in turn, places further hurdles in the quest for justice. I am told that in the Bangalore High Court, one cannot file annexures labelled “I”, “O”, or “U”, because no-one should appear to address himself/herself as ‘I’ before a judge or utter the exclamation ‘O’ or address the judge as ‘You’, even if actually referring to the annexures. Such ‘symbols of subservience’, nay, ‘superstructure of subservience’, constitute the biggest block to communication in the courts.

Somewhere along the line, the fact that a judge is a ‘public servant’ in the service of the people has been lost sight of. Unquestioning acceptance of the dictum that the ‘judge is always right’ or that ‘the judge knows best’ is regarded as behaving with ‘decorum’, while questioning such conduct is seen as ‘disrespectful’ and ‘obstructing the administration of justice’ and ‘undermining the dignity and decorum’ of courts.

h. Over-dependence on expensive senior lawyers & relegation of the harried litigant to the bottom of the scheme of things

Hearings are often perfunctory, lasting barely a couple of minutes. This is particularly true of Supreme Court hearings on Mondays and Fridays, when courts rush through new matters to decide whether to hear them or not. The atmosphere is akin to that of a railway platform where everyone is rushing to catch a crowded express train rather than that of a forum that resolves disputes and renders justice.

Often, the court ends up hearing a matter argued by a ‘known face’ for several hours at the cost of the remaining 59 odd cases. This is especially true of the Supreme Court and some High Courts. It is for this reason that well-to-do litigants engage senior lawyers with ‘face value’ paying exorbitant fees, often running into lakhs of rupees. This gets them the audience and hearing that they may otherwise be denied; an audience and hearing that is supposed to be equally guaranteed to every litigant under Article 14 of the Constitution of India.

i. The roles of the judge, the lawyer and litigant; how communication is a non-starter and the very purpose of the proceedings stands defeated The judge is meant to be the agent of justice and the lawyer the agent of the litigant. Even though it is the litigant’s grievance that is the ‘cause of action’, that important fact is often forgotten and the party is virtually a ‘nobody’ in the proceedings. Litigants/parties must stand silently outside the court and wait till their cases are called out. Within the court, they must not speak unless spoken to, for the judge might not like it. Parties are seldom heard in person.

There is little true communication between the participants and as a consequence, a deafening silence prevails amidst an impression of frenetic activity– the litigant/party is muzzled and kept from explaining the dispute to the court; the court does not understand it, and justice remains a stranger to the entire proceedings.

k. Litigants are expected to exhibit unending patience

Litigants, placed at the lowest rung of the ‘hierarchy’ in courts, are told to exhibit unending patience and to wait interminably for justice. They are made to face the wrath and impatience of overworked judges, the glaring lies of lawyers and the sacrifice of their rights before their very eyes. Despite frequent and serious violations of their fundamental rights to equality and timely justice, they are told that they must quietly turn a blind eye to what goes on. They must behave with impeccable ‘decorum’ and protect and uphold a sagging public confidence in the justice system.

Unfortunately, however, many have begun to lose patience, and have started taking recourse to dangerous steps of retributive violence to get ‘instant justice’.

The way forward in the immediate future

It is undeniable that the present system must undergo complete and thorough review, requiring sustained effort with tireless will and dogged determination. It is also true that all this requires a longterm perspective, and time.

Along the path of a ‘justice-oriented’ strategy, however, are a few small steps that could be taken sooner than later. Each of these is a progressive move towards the desired goal of ‘justice’. Each promotes transparency, truth, brevity, dignity, certainty and effective communication in court proceedings. And each can be put in place right away, as they are low cost solutions that can be implemented with little effort.

These steps comprise video-recording of court proceedings, rationalizing of cause-lists, allocation of broad time-slots for each case, mindful listening and speech, adherence to templates for passing orders and judgments and commencement of each case with a broad time-frame/time-plan. These would facilitate effective hearings and instill a culture of adhering to broad time-plans for each case; inculcate civility/courtesy and allow proper understanding and effective management of every case.

These initiatives would instantly enhance ‘communication’, create ‘accurate records’ and render ‘better quality justice’ in the courts.

• Video recording of court proceedings is an innovation whose time has come; it would provide authentic and complete records of court proceedings in this country for the first time. Most democracies keep audio records of their court proceedings and several have already gone further and adopted video-recording. Video records if stored on non-rewritable compact discs (CDs) are difficult to tamper with, and costs could be recovered in a very short time by charging just Rs. 100 per litigant every year. Video-recording will also improve the accountability of all participants.

 Preparation of cause-lists in a realistic and responsible manner - Only 10-15 cases should be listed on a court day and no effort should be spared to ensure that all or most of them are heard meaningfully. The time saved by fewer listings would make way for greater clearance of ‘pending’ cases. Lawyers would not lose out on their earnings, as more litigants would have access to courts.

 Provisional allocation of time-slots to each listed case and their disclosure in the cause list - This would streamline court hearings and bring about a measure of uniformity in the treatment of similar cases.

• Preparation of time-plan for each case – Some cases might require just two listings, while others might require a larger number. An indicative time-plan prepared after a preliminary hearing of the case followed up with a consultation with the parties and the lawyers would help manage its progress in overall terms. This would help identify real issues early on and prevent subsequent attempts to prolong the matter.

• Special training and orientation programmes for patient listening with courtesy, dignity and kindness – this in itself would encourage truth to prevail over falsehood and foster justice in the true sense of the term.

• Writing judgments following a broad template that ensures coverage of necessary ingredients and facilitates greater understanding- Brief facts, Material submissions of each party in brief, Issues, Legal Reasoning, Citations relied upon, Orders/Directions, Ratios on each where applicable. All in numbered paragraphs, with clear headings and sub-headings.

· Writing orders following a broad template that ensures greater understanding– Interim vs final order, reasons for order, duration of order with reasons, what the matter is listed for on the next date, next date of hearing (date, day, number of weeks later).

The adoption of these small steps would lead to significantly better communication in the courts and improve the quality of justice through effective, efficient and fair proceedings.

It could prove to be the ‘tipping point’ for the Indian justice system, as it would revive the hope and expectation of justice through civilized means. It would bring us much closer to the day when we can hope for substantial and speedy justice that is delivered in an open environment imbued with dignity. It would convert our world into one where justice is done and also seen to be done, a world that has eluded Indians for decades, and may now be within reach.

 


* Indira Unninayar, Advocate, Supreme Court and a trained mediator, has taken up a wide range of public interest causes, putting to good use her background of Market Research and Strategy.

October – December, 2012