Continued from “Notional Rule of Law”

Achilles’ Heel of Our Polity – Part II

One mysterious attribute of our society is how we acquired the penchant for emptying the contents of whatever good we have had – or acquired from others – and retaining only the shell. In case of our religion, we tenaciously cling to rituals and leave the essence of Vedantic thought for scholastic dissertations. We profess the presence of the same self in others, but are not prepared to extend the belief in social interactions with the less-advantaged because of the stigma of birth in lower castes.

Similarly, at Independence we inherited the concept of the rule of law and incorporated the entire corpus of the system left behind by the British, but ensured that only the shell continues sans its content.

In A Shambles

Today, our entire judicial system is in a mess. I’m – thank God for it – not a lawyer, but have some idea how our judicial system works. During my working life I lived in Calcutta in a residential block of apartments which had, for over three decades, an on-going legal battle with its landlord who couldn't go to sleep without visiting the High Court which has a very special place in the Bengali psyche. Most unintentionally, I got sucked into the legal case which gave me a unique opportunity to see the working of Calcutta High Court and our judicial system as it operates. Again, during the infamous Emergency I got involved, on the behalf of my company, whose marketing operations were under my charge, in a legal battle in Cuttack High Court to seek the release of Company stock that was confiscated by the police because our dealer (who was also our Clearing and Forwarding Agent) was arrested under MISA – Indira Gandhi's draconian law, the Maintenance of Internal Security Act. Some of my observations in this section on our judicial system are based upon such personal experiences.

The functioning of the Indian judiciary has, by all reckoning, reduced itself to a farce. Even AB Vajpayee as Prime Minister of India had a dig at its working while addressing the golden jubilee celebrations of the Supreme Court of India, the bulwark of our judicial system. Usually suave and sophisticated in his public demeanor, Vajpayee is on record to have said: “the exasperating and increasing delays of the judicial system justly invite derision and contempt”.

In the same function, the then Chief Justice of India, Justice AN Anand too was present and he literally rose to the occasion. According to him, the entire backlog is largely, if not entirely, due to “the apathy of the government to the issues concerning judicial administration”.

You and I are all too familiar to be amused by the pot-calling-the-kettle-black game which has been played with sickening regularity among various organs of the Government who love to shift blame to each other. There has, indeed, been delay in the appointment of judges even against sanctioned posts. Both paucity of funds and dilatory procedures are responsible for this.

A new roadblock has surfaced – as if there weren't already too many – in filling vacancies of judges. The Constitution of India provides that the High Court and Supreme Court judges will be appointed by the President of India. Didn't the architects of the Constitution assume the President to be a figure head who would clear the list as and when presented to him? Suppose the incumbent of Raisina Hill has an activist self-perception, he would like to whet the list to ensure that representatives of backward classes are suitably represented on the Supreme Court bench. How to sort that out?

Nonetheless, the fact is, legal cases running into over crores are pending, some of them perhaps as long as thirty years. It is indeed true that the number of judges called upon to man the country's judicial system is hopelessly inadequate. It has been pointed out how, for instance, Mumbai’s 50 metropolitan magistrate courts serve a population of 12 million. This judicial miracle is possible in our country alone. Where are the funds to come from to add substantially to the number of judicial officers is another matter. Meanwhile, the public is entitled to know if those already holding office and supposed to be administering justice are doing what is expected of them. Unfortunately, the answer is an emphatic “no”.

Reasons for the Mess

There are several reasons for the deplorable state of affairs as it obtains in our judicial system. First and foremost, is our proclivity to make new laws and frequent amendments thereto. Both the Central and State governments add new laws month after month. Take a law that affects most of us – the 1961 Income Tax Act. It has so far been amended over 4,000 times. If you are lawyer specializing in Income Tax matters, you could be assured of a thriving practice if only you knew how one amendment contradicts another. The late eminent jurist Nani Palkivala summed up the mess:

The tragedy of India is the tragedy of waste of national time, energy and manpower. Tens of millions of man-hours, crammed with the intelligence and knowledge of tax-gatherers, tax-payers and tax-advisers, are squandered every year in grappling with a torrential spate of mindless amendments. The cardinal error of our times is to mistake amendment for improvement and change for progress. (Italics added).

That's not all. The basic structure of our judicial system is based upon hopelessly outdated foundations. Some of our basic laws should have been scrapped lock, stock, and barrel half a century back and replaced by newer versions instead of amending them every six months as and when their inadequacies are thrown up by an entirely different set of circumstances in which justice is to be administered through them.

Take a simple case. We have a Law of Evidence dating back to 1872. Similarly, the basic regulatory law of telecommunication was passed when telegram itself was a luxury that only a tiny minority had access to. How archaic it is in today's world of fax and e-mail which ensure almost instant transmission of messages.

Perhaps, the worst culprit is the Civil Procedure Code which has been held responsible for most dilatory disposal of cases. At long last, the Government came up with a CPC (Amendment) Act. It may be recalled that the Civil Procedure (Amendment) Bill, 1997 was introduced in Rajya Sabha by the United Front Government and despite scrutiny by select committees and a nod from the Law Commission, hanged fire. As soon as it was notified, the legal fraternity of India, especially in Delhi came up in arms against it. It was not to their liking that the Act should expedite the trial of cases in the court and be used to overcome cumbersome procedures. The law aimed at fixing responsibility on the court to pronounce judgments and issue decrees within specified period. How could the legal profession take kindly to this? Our lawyers want cases to drag on and on for years and decades. They take adjournment on the slightest excuse. In one hearing the plaintiff's lawyer falls ill and in the next, the defendant's. So the case goes on and on.

When involved in the above referred case under MISA in the Cuttack High Court, I heard the following story from horse’s own mouth, namely, a distinguished barrister of Cuttack whom we had hired to plead our case. (He later became President of Supreme Court Bar Association).

There was once a very successful lawyer (like Motilal Nehru for instance) who made a lot of money practicing law. He wanted his darling son to step into his shoes and sent him to England to become a barrister. When the young lad returned as a full-fledged Bar-at-Law, goes the story, there was an urgent case that his father had to attend but unfortunately fell (genuinely) sick. His able son who had, meanwhile, registered himself to practice at the Bar, volunteered to take his place. When he returned home in the evening after having put up appearance on behalf of his father in the High Court, he looked triumphantly jubilant. His father asked the reason for this. “That's simple, father, I have won my very first case today. The case that had been dragging on for seven years and you couldn't clinch it, I have done it. The decree has been awarded in our client's favor”.

“You’re a mighty fool, my dear son”, replied the father, indignant at his son’s hastiness. “Do you think, I couldn't have won it any day I wanted! But had I done it, how on earth, could you have been educated abroad”.

The moral of the story is too obvious to need elaboration. Lawyers have a built-in stake in prolonging cases for years and if possible for decades. Didn’t Motilal do the same in case of the Rani of Amethi case to educate his darling son at Harrow and Cambridge and enroll on the Inns of Court in London? (It is a sane advice of the wise that it is better to lose money – even substantial – rather than file a case to recover it. In the latter case you’re going to lose many times more in litigation).

I’ve seen how courts function. (I’m sure you too have.) Going by the number of persons present and chattering in small groups even in the chambers of High Court judges, most fish markets are vastly quieter. If your case is listed for the morning you must be present at 10.00 a.m. and spend at least an hour in searching for your lawyer who is always very busy – smoking somewhere in a quiet corner or sipping tea in some obscure canteen. Finally, you locate him and persuade him to come to the court room where your case is posted. Invariably, he demands something extra for the expenses he incurred last night in preparing papers for today's proceedings. Willy-nilly you pay that to ensure his presence. By 11.00 a.m. His Lordship has not materialized. At 11.30, he troops in and the Court proceedings start with all the unlisted “prayers”. This session drags on for an hour. From 12.30 to 12.45 the judge spends two and a half minutes each on all the listed cases of the morning session. Mostly, it is granting adjournments. Then the lunch hour begins. You go back home to return seven weeks later.

The above referred amendment to the Civil Procedure Code provided for an interesting new provision i.e., awarding compensation up to Rs.50,000 to any person against whom a false case has been instituted. Most Police Departments will go bankrupt if this were to be implemented.

One of the reasons for appeals which clutter the working of High Courts is the extremely poor work of investigative agencies. Most of the police departments are very lackadaisical in their homework. No wonder most of their cases fail in the courts. In the absence of any well-defined canons of accountability, the system continues merrily. The common man unnecessarily pins great hopes on police investigations.

Whenever something goes egregiously wrong, there is a demand for a CBI inquiry. I don't know if a study has been done to ascertain the number of such cases referred to CBI in the last ten years where the courts have upheld the CBI prosecution. My own guess is that CBI investigative work is as slack – despite all the aura of authority that the august body carries – as that of other police departments. No wonder the conviction rate under FERA is as low as 8 per cent. Who, if anyone, is held accountable for 92 percent investigative failures? This explains why the aggrieved parties have to wait from ten to fifteen years to have their appeals heard by the FERA Board which takes up appeal under the Act.

Most of the time the lawyers are interested in collecting their fees, which are seldom receipted. Obviously enough, the more the number of hearings, the larger will be the fee collection. Having got sick of weekly trips from Calcutta to Cuttack in the above referred case that I had the dubious distinction of being associated with, I asked the barrister representing us (whom I had become rather friendly with after several rounds of meetings): “How much should we pay for the entire case i.e., till its final conclusion?” “Suit yourself”, he said nonchalantly. “Would, whatever I decide, be acceptable?” “Yes”, he confirmed emphatically. “Even ten rupees”. “Yes”, he returned in a show of magnanimity.

In my next trip to Cuttack, I took a company cheque for Rs.10,000 in full and final payment. (In mid-1970’s this was a large amount.) The case was decided in the next hearing. Draw your own conclusion.

Continued to "Overhaul the Judicial System"