Justice in jeopardy

Why? Because, the proceedings move at such a languid pace. The course of justice in courts is so tardy. The delays are backbreaking. What are the causes? What can be the cure?

The first cause is that the judge8217;s tools are archaic. Even after more than fifty years of independence, we have not abandoned our colonial legacy. We continue to follow the medieval methods. Let me illustrate.

The substantive law confers aright on an individual. It also imposes an obligation on the state or fellow citizen. The right or obligation can be enforced only in accordance with the prescribed procedure. If the rules of procedure are simple and effective, the right under the law shall soon become a reality. Otherwise, it is likely to be sacrificed at the altar of rites and rituals8217;. What is the position in our country?

The law for regulating the procedure in civil proceedings was enacted in 1908. The Law Commission had recommended changes in the 14th, 27th, 40th, 50th and 55th reports. In pursuance of these recommendations, the Amending Act of 1976 was passed. Similarly, the proceedings in criminal cases are regulated under the Code of Criminal Procedure8217;. It was promulgated in 1898. Certain changes were made in 1974. Under both the statutes, the rules of procedure are cumbersome and hyper-technical. The amendments do not simplify anything.

Another important enactment embodies the Law of Evidence8217;. It is still older. Vintage1872. In this age of high-tech, fax or an E-mail message has to be proved in accordance with the rule laid down when even the facility of sending a telegram was not available to a majority of the people.

Still further, our laws provide for duplicity. To illustrate: A person meets with an accident. He is injured. He wants compensation for pain and suffering. The state wants to prosecute the driver of the offending vehicle for rash and negligent driving. The issue in the two cases before the court would be identical: Was the driver rash and negligent? The witnesses shall be common. Still, two different courts have to try the two cases.

We get two separate decisions. The two courts can take diametrically opposite views. There shall be two separate appeals. Still further, there are too many appeals. The cases take too long to conclude. Inevitably, there is an avoidable wastage of time, money and energy.

Thus, the process of law defeats the purpose of law. The due process of law leads to delay. Our rules ofprocedure are like the speed breakers on the national highway. They do not permit a speedy run. They cause delay and do not meet with our present-day needs.

The second cause of delay is the continuing existence of innumerable vacancies. From the subordinate courts to the Supreme Court of India. And that too, for long periods of time. Mostly without a good and justified cause. In fact, it is difficult to recall an occasion when the high courts in the country may have been functioning at full strength. Whatever be the cause for delay in filling up the vacancies, the result inevitably is the loss of man-hours. Consequently, there is delay in the decision of disputes.

Not only this. The courts face another impediment. The financial constraints. Despite the proclaimed independence of the judiciary, the strings of the purse are always in the hands of the executive. Like an unwed virgin, it resists the grant of consent. On every occasion. For even a small expenditure.

The courts have to wait for long beforeeven the post of a stenographer is sanctioned. Most of the time there is an acute shortage of even the ordinary items of stationery. Like paper. In the process, the work suffers. The innocent litigant is ignorant of the nitty-gritty of the affairs of the state. He readily concludes that the judge is inefficient and that the courts are not functioning. What can be the remedy?

Firstly, we must realise that in this age of supersonic jets, the old bullock cart is not the ideal means of transport. The old laws, which are mere symbols of slavery, must be consigned to the national archives. These must yield place to simple and effective rules of procedure. The high courts and the Supreme Court decide important issues of far-reaching consequence on the basis of affidavits. Why can8217;t we follow a similar procedure in a suit for the recovery of a sum of money or the possession of a piece of land?

At best, a provision for permission to cross-examine a person, in a given situation, can be made. Similarly, thetechnical rules of evidence, which sometimes induce a party to deny the genuineness of a document, need to be simplified.

Secondly, a simple and efficient system of filling up vacancies in judicial offices all over the country must be immediately adopted. At present, the state public service commissions make selections for posts at the level of city civil judges.

This process is time consuming. There is avoidable delay. Similarly, there is delay in the filling up of posts at other levels. A simple method can be adopted. Fresh law graduates who secure, say, at least 70 per cent marks in the university examination, can be picked up for manning the posts at the level of city civil judges. They can be put through an intensive training course. Those who are found unsuitable can be weeded out.

The others can furnish a panel for appointment on the availability of vacancies. Similarly, select lists of persons considered suitable for appointment as district judges and high court judges can be prepared inanticipation of the vacancies. There is need for a conscious effort to avoid delay in filling up the posts.

Independence of the judiciary is a basic feature of our Constitution. To achieve this objective, the judiciary should be made free from the financial dependence on the executive. It would promote efficiency.

Every institution is only as good as the men who man it. The judiciary can be no exception. But the causes for delay should be dispassionately considered. An effort should be made to eliminate the real road blocks on the road to justice. Those who rush to blame the judiciary for every ill may only remember the words of Lord Denning that the judges do not normally quot;answer backquot;. Even to tell the truth.

The writer is a sitting judge of the Punjab and Haryana High Court