Events & Issues

New Delhi, 10 August 2015

National Litigation Policy

SEARCH FOR SPEEDY JUSTICE

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

At a time when the image of the judicial system in India presents a mixture of admirable activism and the only hope to contain political power under control, the darker side of the system called “judicial delay” is also spreading fast to make the justice system unjust. Delay causes intolerable sufferings to common people in civil suits, and leads to miscarriage of justice in criminal cases.

In this background, a National Litigation Policy (NLP) is set to be moved shortly by the Union Government to provide remedies for a number of issues bothering the judicial system. The object is to make the system function efficiently and expeditiously.

Designed to promote “responsible” litigation and contain frivolous court cases by or against the government, the policy will address the most serious problem of long pendency of cases in courts and excessive load on the judiciary.

Responsible litigation means elimination of negative factors that lead to delay and miscarriage of justice. False pleas and frivolous disputes, suppression of facts, and attempts to mislead the court are avoided by responsible litigants. They present accurate facts and relevant documents.

Efficient litigation is sought to be achieved by focussing on core issues and addressing these squarely, by managing and conducting litigations in a cohesive, coordinated, and time-bound manner, and by ensuring that good cases are won, and bad ones dropped. 

The NLP is meant to ensure that government agencies function in a responsible manner while filing cases. It requires them to present full and correct facts and documents, give priority to pending cases in which government is a party to enable their quick disposal; and create a monitoring and review mechanism to sensitize government on important cases and avoid delay and neglect.

The policy announced now is virtually the same document of 2010 released by the UPA government titled: “The Legal Mission to Reduce Average Pendency of Cases in Courts from 15 Years to Three”, which wasn’t taken up for implementation till October 2014. It is being given life now. Though the policy is for all, it has the effect of pressurizing the government to move faster, as it is a party in nearly 50% of cases in courts. 

A major cause for delay in justice is frequent adjournments sought by litigants and generously granted by the courts. An estimate of the National Court Management System made on the basis of data on pending cases shows that total cases pending in courts may touch 15 crore by the year 2040.

Former Chief Justice RM Lodha, referring to the enormous number of pending court cases stated: “the practice of seeking adjournment of scheduled hearing of cases at the drop of a hat must be stopped.” Labelling it as a “culture of adjournments”, he said: “adjournments should be allowed only when they are absolutely necessary”, and “unless a lawyer feels very ill, requests for these mustn’t be made”.

In legal practice, it is common even among aggrieved petitioners seeking justice in criminal and civil disputes to seek adjournments. Very often, lawyers overloaded with too many cases are unable to attend the court on the scheduled date, and seek adjournment. The tribe of “adjournment lawyers” may resist attempts at curbing dilatory tactics which practically form part of successful legal profession. 

In 2002, the Criminal Procedure Code was amended to limit the number of adjournments after hearing starts in a case as not more than three. But, this limit is not being followed strictly. The Supreme Court even remarked that seeking adjournments for examining witnesses who are present in the court is a “dereliction of advocates’ duty to the court”.

 “Accepting that frequent adjournments are resorted to by government lawyers”, the NLP declares that, “unnecessary and frequent adjournments will be frowned upon and infractions dealt with seriously”. It must also be admitted that it is difficult to make rules on adjournments and implement these.

From the standpoint of under-trial prisoners, who languish in jail far longer than the prescribed maximum jail term for the alleged crime, needless to mention that judicial delay is not just a punishment, but a crime against the criminal. 

In cases of heinous crimes like rape, the amended Section 309 of the Criminal Procedure Code prescribes a time frame of two months for completion of enquiry as well as trial. The NLP should acknowledge that the time factor is vital in all cases and for all offenders and victims.

In the US, speedy trial is a constitutional right. The European Convention on Human Rights also provides that everyone arrested or detained shall be entitled to trial within a reasonable time or get release pending trial.

Justice Lodha recommended that the judicial system, like medical facilities, should function 365 days a year. It’s time we start with filling up vacancies in judicial posts and increasing the number of subordinate courts.

The problem of accumulation of cases is further intensified by filing of numerous “frivolous” cases. Public Interest Litigation, a device for promoting justice, is often misused to catch public attention more than for getting justice for the common man. The NLP seeks to approach PILs in a balanced manner.

The 18^th Law Commission Report in 2009 dealt with the need for speedy justice – a basic human right as it stated. This was considered along with control of frivolous/vexatious litigations. It is said to be a derivation from the cardinal principle of criminal justice system: “Justice delayed is justice denied, justice withheld is justice withdrawn”. The Report confirms the need for speedy justice, and not hurried disposal of cases.

Justice VR Krishna Iyer considered the “slow motion syndrome” of the judicial system as “lethal” to fair trial. Indeed, speedy justice is a component of social justice. Iyer agreed with the stand adopted in many western countries that speedy trial is a fundamental right

The number of pending cases cannot be reduced without all out efforts from many angles. Presently, the practice of issuing show cause notices is so liberally used that many are found unsustainable. The process eats valuable judicial time besides causing unnecessary expenditure. The NLP aims to reduce government litigation so it ceases to be a “compulsive litigant” and change to becoming “efficient and responsible.”

A common suggestion for multifarious problems confronting legal and judicial dispensation is promotion of alternative methods of dispute resolution in which we have varied experience. Mediation, conciliation, and arbitration - official and non-official - have long been in practice both in private and public disputes to avoid the pangs of litigation. Lok Adalats are not very popular. But, complaints against specific departments like telephone and water board are being resolved speedily. Nyaya panchayats were not successful in the 1960s and were abandoned. Under Nyayalaya Act of 2008 for speedy and easy access to justice, only nine States constituted less than two Nyayalayas. 

In resorting to alternative or traditional judicial system, care has to be taken to follow the law of the land. Traditional and caste practices cannot overrule the law. Institutions like Khap Panchayats should be prevented from entering in the pretense of providing speedy justice. The best solution definitely is lessening disputes by adherence to the rule of law.---INFA

(Copyright, India News and Feature Alliance)