Legal profession has in the past been considered as a
noble profession where public spirited persons may serve those who need
the support of the judiciary for relief when they were victims of some
contravention of law. It was therefore natural for people like Mahatma
Gandhi take to public service after being in the profession of a lawyer.
Even today you occasionally see some persons take up public cause with a
passion that makes the profession proud. Dr Subramanya Swamy’s efforts
in recent times which unearthed the 2G scam is an example of such
tenacious fight for principles undertaken by a legal professional.
It is therefore heartening to note that bright young people are showing
some interest in the profession as is indicated by the response to the
competitive examination, CLAT 2011 which determines the qualifiers to
enter into the prestigious National Law Schools. It is found that
students as bright as those who get into the more glamorous engineering
or medical streams get into National Law Schools and study law. This is
good for the profession since the quality of lawyers in the country can
improve.
However it is found that most of the National Law School graduates fail
to enter into practice in the Courts of law in India. They either go
abroad or join the corporate world and end up advising companies on how
to manage law for business gains. In the process the noble profession of
lawyers is losing sheen.
While one of the reasons why young talented persons get attracted to
corporate jobs is better monetary prospects and comfortable perks, the
way our legal practice runs today is also a reason why the youngsters
are not keen to practice.
Today’s practice in Courts is dominated by those lawyers who are not
interested in letting the Courts work and move towards resolution of
disputes. They are more interested in prolonging the disputes and
exhausting the genuine justice seeker. Hence they are only interested in
getting adjournments on one ground or the other. Their skills are
limited to this field and intellectuals find it difficult to survive in
this atmosphere.
Some monied clients hire a lawyer today not for his capacity to argue on
legal points and win the case but for his ability to ensure that the
case can be endlessly adjourned so that the beneficiary of a
contravention can delay return of the illegal benefits gained. Hopefully
the opponent would be so tiered after some time that he may lose
interest in the case and absorb the losses suffered.
If today Indian judicial system particularly the Civil judiciary is not
respected by litigants, the reason for that is the enormous delays that
are caused in the legal proceedings. There was a time when people would
respect the words “God sees the truth but waits”. But today public are
not interested in God who is slow in delivering justice. “Justice
delayed is justice denied” is a more contemporary axiom.
In one of the recent hearings before a special judicial forum, I was
shocked to listen to an advocate who was proudly telling the forum that
she was just coming out of a case which was started before she was born
and she could not understand why the judge of the special judicial forum
was keen on completing the proceedings quickly. When pointed out that
the law requires the forum to come to a judgment within a specified
period, she was nonchalantly stating that there are several laws like
that in the Country and no body bothers about the time limit.
To top it all the advocate raised it as a matter of a ground for appeal
in a higher Court that the lower court judge was keen on completing the
proceedings quickly and that was a procedural irregularity!
This reflects the state of affairs in civil courts and how some of the
advocates take pride in delaying things for no specific reason but to
inflict a greater financial damage to the victims. Such advocates bring
disrepute to the community of legal professionals and hinder any
positive development in the judicial system.
In order to prolong the proceedings in a Court, unscrupulous advocates
also use certain provisions of CPC to their advantage. to the extent CPC
has become the biggest stumbling block for reducing the delays in
Courts.
The Government of India and higher echelons of Judiciary have recognized
these issues and have tried to
a) Introduce alternate dispute resolution methods
b) Free some of the special judicial forums such as the adjudicator
under ITA 2000 and the Cyber Appellate Tribunal from beign bound by
Civil Procedure Code
c) Indicate time limits for the special forums to complete their
proceedings
d) Allowing non advocates from assisting the litigants to present
their cases for adjudication under the principles of natural justice
e) Changing the traditional laws to make it difficult to get
adjournments on flimsy grounds and to make the party seeking
frivolous adjournments pay for the cost of alternate hearings.
Unfortunately however, these reforms are being
challenged by that part of the lawyer community who have a vested
interest in maintaining the inefficiency of the system.
The solution to the problem lies as much in correcting the attitude of
the advocates who pray for adjournments instead of arguments but also in
the judges changing their attitude and being less considerate of the
requests for adjournments.
Today judges in most Courts are so habituated to adjournments that a
request for adjournment is seen as very natural. Any opposition is seen
as a favour to the party praying for quick redressal. Even when a
counsel asks for an “Adjournment for personal reasons”, it is treated
with respect without considering that accepting the request of one party
for adjournment is an injustice meted out to the other party.
As a result of this lenient tendency of judges, some advocates play one
court against the other by bringing in frivolous appeals, miscellaneous
applications, civil revision petitions etc knowing fully well that
though the application may not be maintainable when argued they are good
enough to get relief for a few months.
In deference to the procedures, an application even if supported by
false averments is often admitted for hearing and in most of such
admissions, an interim order is also passed as prayed for by the
complainant. The defendant is told that this is not a final order and
only an interim order until the case is heard out. Unfortunately the
case is not heard expeditiously and even adjournments are granted in
such cases some times for long periods making the interim order stay
operative as a temporary relief. An application which ought to be
dismissed at the admission level therefore becomes a tool of temporary
relief to one of the offending party.
While the judges have the power to correct the injustice done through
such false and frivolous applications by awarding exemplary
compensations, few judges feel the necessity for such decisions which
could eventually dis-incentivise seeking of adjournments on unscrupulous
grounds.
It is also found in some cases that advocates have jumped from one court
to another on frivolous jurisdiction and procedure related objections
only to prevent the lower court from proceeding with its functioning. It
is strange that some times even a judge who wants to improve the system
is sought to be restrained by the higher court on unsustainable grounds.
A time has come therefore for the attention of the Government to be
drawn to this problem and solution found before the little respect still
available to the lower judiciary is lost.
The solution should start with a debate in all Courts and probably an
attitudinal training of the judicial officers to change their present
attitude of granting easy adjournments. Courts are meant to adjudicate
and not to adjourn should be a principle which should be guiding them at
all points of time. Adjournments should be on genuine grounds and for
short duration only. If the grounds for adjournment are not forceful,
the cost of adjournment as a matter of routine should be boarne by the
party asking for the adjournment.
If in the long run the system has to improve, then it should be ensured
that all special judicial forums (civil dispute resolution forums) are
provided a freedom to fix their own procedures under the principles of
natural justice and not be bound by CPC.
Subject matter experts who can throw light on facts and legal issues
rather than beat around the bush with procedural issues must be
encouraged to assist these judicial forums so that the forums may move
towards quick judgements rather than keep adjourning the matter.
While the intention of making bar experience a necessary factor for a
judicial appointment has its merits, there is also merit in the argument
that it would be better to have direct judicial appointments from those
who have not become addicted to the current practices in the Courts
which are aimed at defeating an honest and efficient judicial system.
Though this has been a subject matter of many discussions in law
commission reports in the past, where direct recruitment of judicial
officers is done, it is restricted to persons who have been practicing
advocates only. It is time to revisit this criteria and deliberate if we
need to create a “Judicial Cadre” exclusive of an ”Advocate Career”.
Already the several judicial forums such as DRT system and Sec 138 (NI
Act) systems who were supposed to be fast court systems have been
effectively degenerated into a normal court process where the average
litigation period is several times more than the statutory intention.
Consumer Courts are following the same course.
The current target of unscrupulous lawyers is the Cyber Judiciary system
under ITA 2000/8 where the Adjudication cum Cyber Appellate Tribunal
system is envisaged as a process which should not take more than 1 year.
Lawyers who are entering the litigation in these courts are in the
process of vitiating the processes so that “Delays” are the order of the
day.
If this trend is not stopped, the future of Cyber Judiciary in India is
bleak. If Adjudication and Cyber Appellate Tribunals are not expected to
be different from the civil courts, the Government may as well close the
adjudication and Cyber Appellate systems and place the jurisdiction back
on the civil courts.
In this context, I would like to request National Law Schools to debate
the feasibility of providing a special Judiciary Course to prepare
direct Judicial officers. This could be an extended 5 year judicial
training to its law graduates where the students pursue a course in
Judiciary spending time with judges in several courts as their
assistants. We will then have young junior judges at the age of 30. Like
young IAS and IPS officers who are often found to have a special
commitment to their duties, we may then have a cadre of young IJS
officers who may be open to reforms more than those who have been part
of the system during their formative years and are affected by “Role
set” problems. If a 30 year old IAS officer can function as a district
collector with lots of judicial responsibilities there is no reason to
doubt the feasibility of a 30 year old non advocate judicial officer
discharging his duty as expected under the constitution. He would be
free from the influence of the current practices in the Court and can
bring real reforms which people may appreciate.
I would be happy if National Law Schools can come up with other
suggestions to ensure that the functioning of special judicial forums
are not derailed from the principles set out in the specific statutes
creating them. Public should also join in this debate.
