Dr. Manmohan Singh's lament on Courts, Cases and Backlog...A critique
Prime Minister Manmohan Singh’s lament over the pendency of disputes – as many as 3 crore cases pending before the various courts across the country was indeed a brave statement. And even if it was unintentional, he gave an opportunity to those from our middle class homes to raise a discussion on the state of our judicial system. The blame game began and anxious reporters churned statistics of vacant posts at the various levels of the judicial system including the higher judiciary.
The Prime Minister also promised those assembled in the august gathering – Chief Ministers and the Chief Justices of the various High Courts – that the executive was willing to walk that extra mile to remedy the system. Setting up of several hundred special courts and posting judges in all the vacant posts, he said, will have to be done. Well. None will quarrel with his intentions. The fact is that with such huge pendency of cases is eroding the citizen’s faith in the justice system. And if this is allowed to persist, there can be very little hope over the survival of the democratic edifice.
But then, it is also important to ponder over some truths, invisible to those who do not watch the functioning of the justice delivery system from close quarters, to decide as to whether the cause for the malady rests entirely on the inadequate number of judges or otherwise. This will also help get over an impression that most of the cases are kept pending because of repeated adjournments that the lawyers are known to seek. Well. It is true that the litigants suffer monetarily and otherwise when lawyers seek adjournments. But then, it is also a fact that such of those judges who refuse to allow repeated adjournments end up with a bad reputation.
Prime Minister Manmohan Singh, incidentally, did not make this an issue but the urbane sections of our people, most of whom hold a poor opinion about the lawyers, have not lost another opportunity to blame it all on the Bar and the Bench. I must say that all this is not misplaced. But then, a systemic problem cannot be sought to be set right by seeking to tackle the peripheral issues alone. And hence, it is important to set out a few harsh truths that are the cause for the huge pendency of disputes than just the inadequate number of judges and the avarice that leads the lawyers to prolong a case by way of repeated adjournments.
One such harsh truth is that the Government is primarily the cause for a large number of cases at the outset. Let us take, for instance, the writ petitions that are filed, in the various High Courts across the country: Without having to go into the exact numbers, it is possible to state that more than half these number are filed by factory workers, pavement dwellers and such ordinary people. And as it is the case with writs, under Article 226 of the Constitution, the litigant approaches the High Courts only when all other attempts to justice fail.
Among these are such petitions seeking a writ that a representation by a factory worker to the Employees State Insurance Corporation (ESI) that he be provided medical treatment for peripheral neuropathy, a disease contracted due to his exposure to dangerous chemicals while at work. The ESI Act, incidentally, states very clearly that the worker is entitled to claim compensation of such occupational diseases. But then, the officer at the ESI dispensary does not care to do his job until a writ is obtained from the High Court to that effect. And this takes at least 12 weeks and will cost the worker a few hundred rupees provided the lawyer does not take adjournments and the Hon’ble judge is committed to the justice delivery system.
Likewise, there are such instances of a poor Dalit, allotted a small piece of land as part of a Government scheme to provide housing sites to the community, having to file a writ petition to enjoy possession of the land and even after the writ is issued, the Revenue officials not doing their job; the poor man is then forced to file a contempt petition. And only then does the officer concerned wake up to explain that the land meant for the project has been encroached upon! In this instance, the entire process had taken a decade because the Government Pleader, representing the respondent, had to wait for several months for instructions from the concerned department at every stage when the case came up. In other words, the fault lies with the bureaucracy than with the Bar and the Bench.
This is not all. Things will be clearer if the story about the various stages of a writ petition is told. And for want of space, I will have to tell that in brief. Writ petitions arise either out of a judgment by a lower court or an order of the government (a writ of certiorified mandamus) or out of sheer inaction by the government official (writ of mandamus) seeking a direction that the concerned officer do his/her job. It is filed either by the citizen or by the Government itself. And where it is filed by a citizen, the Government Pleader takes some time to discuss the case with the concerned officer and file a counter statement. And when the case is settled, the loser prefers a writ appeal.
Where the government is the appellant, it has its own advocate. The citizen, however, will have to raise the resources to engage a lawyer at the appeal stage. And even if the writ appeal is decided against the state, the battery of Government advocates in the Supreme Court will take care of the process to file a Special Leave Petition (SLP); the citizen, however, will have to raise further resources to defend himself in the Supreme Court. It costs him a lot of money; it does not matter to the Government, given its resources. And when the SLP is dismissed, the officer who decided to fight the case until the highest level, spending a huge sum of tax payer’s money as fee to its lawyers, is not held responsible in any way.
The losers in this are: the citizen who had to go through all the pain; and also the tax payer whose money was spent liberally by the government officers in pursuit of ``justice’’. The fact is that in most cases, their pursuit for justice is against its own citizens and their rights!
Well. The Prime Minister’s concern and his lament over the pendency of disputes in courts are indeed justified. But then, the remedy lies in making the bureaucracy and their political masters responsible for their decisions. It is possible to amend the rules: That where a government officer was held responsible for an illegality against the citizen, make sure that he/she is made to pay for their action or inaction. And where the law officer in a particular department advised the government to prefer a writ appeal or an SLP, he/she must be made to pay the costs in the event it gets dismissed. This will be a sure deterrent against indiscriminate appeals and help reduce the pendency of disputes in a big way.
As for the Prime Minister’s lament about the number of undertrials languishing for long years in jails, it is sad that he is unaware of the law of the land, as laid down by the Supreme Court in the Hussainara Khatoon vs State of Bihar [AIR 1979 SC 1369] that undertrial prisoners shall not be detained in jail even for a day longer than the maximum term of imprisonment which could have been awarded on his conviction. There are several other judgments that have established the onus of a speedy trial on the prosecution. In other words, if undertrials languish in jail, the responsibility lies with the executive and not the judicial system.
Prime Minister Manmohan Singh’s lament over the pendency of disputes – as many as 3 crore cases pending before the various courts across the country was indeed a brave statement. And even if it was unintentional, he gave an opportunity to those from our middle class homes to raise a discussion on the state of our judicial system. The blame game began and anxious reporters churned statistics of vacant posts at the various levels of the judicial system including the higher judiciary.
The Prime Minister also promised those assembled in the august gathering – Chief Ministers and the Chief Justices of the various High Courts – that the executive was willing to walk that extra mile to remedy the system. Setting up of several hundred special courts and posting judges in all the vacant posts, he said, will have to be done. Well. None will quarrel with his intentions. The fact is that with such huge pendency of cases is eroding the citizen’s faith in the justice system. And if this is allowed to persist, there can be very little hope over the survival of the democratic edifice.
But then, it is also important to ponder over some truths, invisible to those who do not watch the functioning of the justice delivery system from close quarters, to decide as to whether the cause for the malady rests entirely on the inadequate number of judges or otherwise. This will also help get over an impression that most of the cases are kept pending because of repeated adjournments that the lawyers are known to seek. Well. It is true that the litigants suffer monetarily and otherwise when lawyers seek adjournments. But then, it is also a fact that such of those judges who refuse to allow repeated adjournments end up with a bad reputation.
Prime Minister Manmohan Singh, incidentally, did not make this an issue but the urbane sections of our people, most of whom hold a poor opinion about the lawyers, have not lost another opportunity to blame it all on the Bar and the Bench. I must say that all this is not misplaced. But then, a systemic problem cannot be sought to be set right by seeking to tackle the peripheral issues alone. And hence, it is important to set out a few harsh truths that are the cause for the huge pendency of disputes than just the inadequate number of judges and the avarice that leads the lawyers to prolong a case by way of repeated adjournments.
One such harsh truth is that the Government is primarily the cause for a large number of cases at the outset. Let us take, for instance, the writ petitions that are filed, in the various High Courts across the country: Without having to go into the exact numbers, it is possible to state that more than half these number are filed by factory workers, pavement dwellers and such ordinary people. And as it is the case with writs, under Article 226 of the Constitution, the litigant approaches the High Courts only when all other attempts to justice fail.
Among these are such petitions seeking a writ that a representation by a factory worker to the Employees State Insurance Corporation (ESI) that he be provided medical treatment for peripheral neuropathy, a disease contracted due to his exposure to dangerous chemicals while at work. The ESI Act, incidentally, states very clearly that the worker is entitled to claim compensation of such occupational diseases. But then, the officer at the ESI dispensary does not care to do his job until a writ is obtained from the High Court to that effect. And this takes at least 12 weeks and will cost the worker a few hundred rupees provided the lawyer does not take adjournments and the Hon’ble judge is committed to the justice delivery system.
Likewise, there are such instances of a poor Dalit, allotted a small piece of land as part of a Government scheme to provide housing sites to the community, having to file a writ petition to enjoy possession of the land and even after the writ is issued, the Revenue officials not doing their job; the poor man is then forced to file a contempt petition. And only then does the officer concerned wake up to explain that the land meant for the project has been encroached upon! In this instance, the entire process had taken a decade because the Government Pleader, representing the respondent, had to wait for several months for instructions from the concerned department at every stage when the case came up. In other words, the fault lies with the bureaucracy than with the Bar and the Bench.
This is not all. Things will be clearer if the story about the various stages of a writ petition is told. And for want of space, I will have to tell that in brief. Writ petitions arise either out of a judgment by a lower court or an order of the government (a writ of certiorified mandamus) or out of sheer inaction by the government official (writ of mandamus) seeking a direction that the concerned officer do his/her job. It is filed either by the citizen or by the Government itself. And where it is filed by a citizen, the Government Pleader takes some time to discuss the case with the concerned officer and file a counter statement. And when the case is settled, the loser prefers a writ appeal.
Where the government is the appellant, it has its own advocate. The citizen, however, will have to raise the resources to engage a lawyer at the appeal stage. And even if the writ appeal is decided against the state, the battery of Government advocates in the Supreme Court will take care of the process to file a Special Leave Petition (SLP); the citizen, however, will have to raise further resources to defend himself in the Supreme Court. It costs him a lot of money; it does not matter to the Government, given its resources. And when the SLP is dismissed, the officer who decided to fight the case until the highest level, spending a huge sum of tax payer’s money as fee to its lawyers, is not held responsible in any way.
The losers in this are: the citizen who had to go through all the pain; and also the tax payer whose money was spent liberally by the government officers in pursuit of ``justice’’. The fact is that in most cases, their pursuit for justice is against its own citizens and their rights!
Well. The Prime Minister’s concern and his lament over the pendency of disputes in courts are indeed justified. But then, the remedy lies in making the bureaucracy and their political masters responsible for their decisions. It is possible to amend the rules: That where a government officer was held responsible for an illegality against the citizen, make sure that he/she is made to pay for their action or inaction. And where the law officer in a particular department advised the government to prefer a writ appeal or an SLP, he/she must be made to pay the costs in the event it gets dismissed. This will be a sure deterrent against indiscriminate appeals and help reduce the pendency of disputes in a big way.
As for the Prime Minister’s lament about the number of undertrials languishing for long years in jails, it is sad that he is unaware of the law of the land, as laid down by the Supreme Court in the Hussainara Khatoon vs State of Bihar [AIR 1979 SC 1369] that undertrial prisoners shall not be detained in jail even for a day longer than the maximum term of imprisonment which could have been awarded on his conviction. There are several other judgments that have established the onus of a speedy trial on the prosecution. In other words, if undertrials languish in jail, the responsibility lies with the executive and not the judicial system.
posted by Krishna Ananth at
3:29 AM
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