Is it correct to blame Advocates and Courts for delay?

Note: I have thought many times before posting the following brief as it is not directly connected to the CA and CS students or the professionals, however, finally I thought that there is nothing in posting article dealing with an important issue in the society. If it causes deviation, I say very sorry for you all.

Recently president of United States Barrack Obama has visited India and expressed his opinion that India has already ‘emerged’.  We, Indians, know as to the achievements made and things we need to still achieve. We have so many issues to deal with in this country like political reforms, the issue of corruption, the education, health, extremism, naxalism and many other issues.  Among many other issues requiring reforms in this country, almost all the Indians are concerned at the delay in courts. Though we are highlighting certain issues as to how to reduce the delay in courts like encouraging Alternative Dispute Resolution (ADR) mechanism, the issue of adjournments, the technicalities, the lack of sufficient manpower and infrastructure etc., we are collectively failed to have a plan as to how to reduce the delay in courts and we need address this issue on urgent basis.  This is a reality today that many citizens are not interested to approach the Civil Courts especially and instead of approaching Civil Courts asking for protection and remedies they either approach the police or gundas or waive their rights assessing the profit and loss in approaching a Civil Court. Whenever the issue of delay in courts is raised and whenever I listen to litigants and public criticizing courts and lawyers, I really feel offended. I have recently received a mail asking for a guidance to approach the Chief Justice of a High Court asking for reference of his dispute to an Arbitrator as he says that he is not comfortable to approach Civil Courts as he is not in a position to pay fee to an Advocate, pay Court Fee and not able to follow the technicalities in Courts.  I have seen and heard many problems in Civil Courts especially and criticism is always made on Advocates and the Courts for the delay. I do agree that the Advocates should feel responsible and I also understand as to what the public are conveying. One-thing is for sure that India can never claim that it is developed  or it is imperative for India to concentrate on justice delivery in order to send a message to the world that we are transparent and we work for the people and address their concerns.

Let us taken an example of a person who wants to file a Civil Suit in a Civil Court for a recovery of a sum of Rs.2,00,000/-.  The person who intends to file a Civil Suit has to pay the Court Fees and also Advocate Fee. We have some so-called and out-dated legal fee regulations or professional ethics alleged of being used selectively at times and even the person who wants to approach the Court may not be able to pay a fee of more than 10,000/- (assumption) for a suit for recovery of Rs.2, 00,000/-. Now let us see as to what can happen in courts in the course of adjudication of a proceeding and it can be as follows:

1. The Advocate concerned should read all the papers, should discuss the issue with the client, concentrate on the legal provisions and prepare a draft and ensure that the suit is filed in the Court and numbered. It will definitely consume lot of time and not an easy task.

2. In all most all suits, there will be one or two interim applications asking for security etc. and when the application is taken-up for hearing, the client expects an Advocate to  be present in Court and the Advocate has to be present in Court and wait for his matter to reach. Then, the Court may ask the advocate concerned to wait for some time to hear the Interim Application and the Interim Application is to be argued.

3. If there is an order in the Interim Application, a certified copy is to be obtained and to be handed-over to the client. The court will also order notice to the opposite party and notice is to be taken.

4. The opposite party will file a counter in the Interim Application and again the Interim Application may have to be argued. If it is appeallable interim order, the aggrieved person can prefer a Civil Miscellaneous Appeal.

5. The Opposite Party should file his reply or written statement in the main suit and if there is a delay in filing a written statement within the time, the Court may condone the delay.

6. Then, the illogical trial begins. Instead of saying everything in the Plaint and the Written Statement, it is the procedural formality again as per CPC to file a Proof Affidavit and there is a procedure called ‘marking of documents’. All original documents are to be filed in Court and the Xerox copies can be ‘marked’ after the permission from the Court. Then, there can be Chief Examination, Cross Examination and many other things.

7. At times, the suit can be dismissed for default and it is alleged that the advocates, at times, allow the suits to be dismissed for default. Then, after some time, there can be an application asking for restoration suit and it can be contested and in most of the cases, Courts will restore the suit.

8. Any number of Interim Applications can be filed and if there is an Interim Order which is not appeallable, then, a Civil Revision Petition can be filed under section 114 of C.P.C or under Article 227 of the Constitution of India.

I can explain the whole procedure and in the matter referred to above, a simple suit for recovery of a sum of Rs.2, 00,000/-, the litigant may have to come to court for 10 to 20 times minimum and the Advocate should appear in the Court for some 30 to 40 times minimum apart from answering the client from time to time and by sending correspondence if need be. Who will be interested to assist or serve the clients in these types of matters and the litigant will be very happy to handover the papers to the Advocate, asking questions and he will wait for the result.  The litigant can be an ordinary man or he can be a clerk working in Government sector taking some 30 to 40 k as salary without doing any work and without any accountability. On the contrary, we expect a student of National Law Schools or a graduate of law with great amount of knowledge and ability to come to profession and serve the public. Nobody does that to be frank if we keep the so-called principles etc. apart.  I have just given an example for a suit for Rs.2,00,000/- and the logic can be same even for a suit for recovery of a sum of 1 crore and more and the situation may slightly differ if the stakes goes to several crores.  It would really be ideal to say that legal profession is a service, but, in reality, Advocates also should have their own life and time and money is important for everyone.  I think that imparting education is also a service and there should not be any commercial aspect in that, but, we know how people are running educational institutions and as to how it has become a good business today.  Instead of saying that the Advocates should do charity or legal profession is a service, I think, it is the right time to think logically and to take note of all the ground realities, complications and problems in the course.  It is true that there may be public or litigants who may not have money or knowledge to approach the courts and for them, there are privileged advocates to do charity and service and we should feel proud of that. Again, we have legal service authority in each state.

Executive or the legislature can not say that it is busy, should handle many more issues and it is not in a position to concentrate on legal reforms. Justice Delivery Mechanism is an important function of any democratic nation and if the system fails, the entire society collapses and this is a fact. We have very good substantive laws in this country and we need to concentrate on procedural laws and law of evidence and we need to simplify the procedures and so that the logic will prevail and illogical technicalities will take a back-seat.  Unless we identify the real problems, deal with the procedural issues in courts etc., it is not possible to reduce the delay in courts and any number of courts or judges can not reduce the delay in rendering justice. We need to address the root problem.  If a suit for recovery of a sum of Rs.2,00,000/- is disposed of within 5 to 10 hearing in Court, then, the litigant will be happy and the legal profession can be lucrative attracting best talent.  The public can not escape their responsibility just by showing the standards in profession, advocate fees etc., and it is their responsibility to pressurize the Government to address the issue and to bring the proper reforms. Nothing is impossible and it is also possible to reduce the delay in courts. We need to indentify the problems and then, we need to logically address those issues.  We need to find the eminent judges or the retired judges with known track record of handling matters in the Trial Courts and we need to find the eminent judges or retired judges of High Court with known track record and then, the Government should immediately constitute a committee by providing all resources and giving a clear mandate to suggest reforms as to how to make the Justice Delivery Mechanism effective and affordable. The final report of the committee should be kept on-line for public comments and suggestions and then, it can be finalized. Once the report of the committee on legal reforms is finalized, then, the Government should immediately implement it with utmost commitment.  This is not a big exercise and constitution of a committee is not a risky thing at all. We have various committees, interlocutors and we are having Justice Sri Krishna Committee working in Andhra Pradesh doing a massive exercise. In the light of the good work being done by various experts heading important committees, I don’t think that the committee on legal reforms is a big exercise. The constitution of committee should not be an eye-wash and it should be real and towards addressing the problem.  The issue of delay in justice delivery is to be addressed on urgent basis and it is not for the professionals, but, it is certainly for the public at large and for sustaining the economic growth in this country.

We have in fact taken certain steps like encouraging ADR, but, those are not sufficient. In fact, in my opinion, ADR too require some reforms. There can be solution and there is no problem without solution and Indians are intelligent and we have many experts in this country who can assist the Government to find solutions to the problems like the delay in justice delivery.  No State Government will oppose the reforms or will appose the speedy delivery of justice. Because, few politicians may be concerned at the Criminal Justice Mechanism and there prosecuting agency plays a big role and they know what to do with that. As such, if there is a firm proposal from the Central Government or the Law Ministry in this regard, then, no State Government will appose the reforms.  We should concentrate as to how the law colleges in this country are functioning, as to how we are seeing law graduates who lack the basic knowledge, what the universities are doing, what the Bar Council of India doing, why we can not computerize the legal system through-out the country, the simplification of procedures, the issue of filing mechanism and enormous corruption in the lower courts, the issue of accountability etc.

It has become routine to discuss about the advocates, judges and courts to discuss in television channels and as if everyone is doing charity to the public, the advocates and judges are under attack very frequently. The public and intelligent should step-up their pressure, if they can, on the Government to address the issue of delay in Justice Delivery System in this country. A talented advocate is not bothered at the system as he has so many avenues to grow, to work and to come-up.  It is also not proper for some political leaders who know nothing about our system, constitution, responsibilities etc. to comment on advocates, the courts and the system. We have a problem and it needs to be addressed on urgent basis and there is no escape route. If we don’t address this problem, it is better to scrap this entire system and give the authority to the police and others to do ‘katta panchayats’.  The legal system in this country is most neglected and I don’t know as to how we will wake-up and address this issue.

The delay in High Courts and Supreme Courts in entertaining writ petitions, public interest litigations, the appeals and other petitions can very well be addressed with focus on ability, man-power and few other reforms. It is not that the Constitutional Courts are not functioning in this country, they are doing a great job, but, we still require many more reforms.

I firmly believe that legal reforms are a possibility and we can definitely reduce the delay in courts and make the courts friendly to the public.  The Central Government should concentrate on this with utmost commitment and the law ministry should also give utmost priority to this.  No one can oppose the reforms based on logic and reason and even if someone or some organization opposes a reform, it is the responsibility of the Government to deal with everything for public good.

Note: the views expressed are my personal and I have no intention to insult the system.