The statement of the chief justice of India about there being 27 million pending cases has set off alarm bells. First, about what society expects from lawyers and from judges, and next, about the so-far-neglected plight of litigants.
In a hard-hitting speech to the American Bar Association many years ago, Chief Justice Warren Burger told his audience that the entire legal profession — lawyers, judges and law teachers — had become so mesmerised with the stimulation of the courtroom contest that they tended to forget that they ought to be “healers of conflicts.” “Doctors”, he went on, “inspite of astronomical costs, still retain a high degree of public confidence because they are perceived as healers… Should lawyers not be healers?” he asked rhetorically.
To be effective in a developing society, to cater to the needs of the underprivileged many, as well as the privileged few, we all, judges and lawyers, need to cultivate the healing touch. For those of us who already possess this attribute, we need to convince the public by our actions, not words, that we are at our best not only in the business of “disputation”, that is fighting or deciding cases inside court rooms, but in helping to resolve conflicts outside the courts as well. After all, in the words of a wise old judge, “litigation is an activity that has not markedly contributed to the happiness of mankind”. Courts, too, must strive to be litigant-friendly. They are not.
Most of the courts in this country are like public hospitals. People go to them with much trepidation only because they have to. Court-rooms are dirty, unkempt, and there are hardly any facilities, such as adequate waiting-rooms for parties, witnesses and those who need to have recourse to court services.
Speedy disposal of cases, which we all glibly talk about, is more easily said than done, simply because adjudication is a very complex and time-consuming task. The least, then, that litigants are entitled to expect is that their cases get decided, ultimately in God’s good time, with as little personal inconvenience as possible. Today, regrettably, the inconveniences are many: court houses are badly built, hopelessly located and have very few amenities for those who frequent them. Courts appear to operate in a world of their own, without apparent regard to the needs of the litigating public. For the latter there is only the solace of the poet’s exhortation: “they also serve, who only stand and wait.”
Each court issues from day to day its own long — very long — case-list. The judge is only able to go through a few cases in the list but litigants and witnesses must attend and wait, on every single date; the cases which cannot be taken up are then adjourned to a date several months in the future when litigants and witnesses must again assemble; at this time too, more often than not, the case does not reach, and has to be again put off.
The vicious circle of adjournments gets even more oppressive when senior lawyers are involved — as was recalled by President Zail Singh at a law conference held in Mumbai some years ago, in a characteristically picturesque description: “Bade bade vakil ki lambi lambi tarikh padti hai”. The admonition was meant first for judges who accommodated senior lawyers by granting them longer dates, and secondly for senior lawyers who neglected the cases of their too numerous clients!
Besides, there is no syndicated programme of caseload management in courts, even after the recent introduction of sophisticated IT techniques. There must be a better system of court-management for handling the 27 million pending cases: the presiding judge of every court must spend some thought and time as was recently done with great effect by a former chief justice of Bombay in devising ways and means to ensure a more litigant-friendly atmosphere in court premises.
Years ago an American lawyer related the story of a student who sat for a paper on international law which contained only one question. The question was “State all you know about the international fisheries problem from the point of view of the great fishing nations of the world, Norway, Great Britain, Russia and Japan.” The student, not a very diligent one, wrote: “I do not know the points of view of Norway, Great Britain, Russia or Japan on the international fisheries problem, so I will tackle the problem from the point of view of the fish.” And he proceeded to do so with considerable humour. Not surprisingly, he failed in the law examination, but he went on to become one of America’s leading humorists.
The problem of the fish in the oceans administered by the Great Powers is somewhat akin to the current vexed problem of the litigant in a succession of courts administered by learned judges.
We already have in place a very efficient legal services authority functioning under a statute designed to promote legal literacy, but the convenience of the unfortunate litigant is not on its list of priorities. The principal participant in the legal process is simply not treated with the attention, care and concern which he or she deserves.
When thinking of and speaking about the 27 million pending cases and the judge-strength required to deal with them, I plead that something be done about the plight of the “poor fish” in our grand quest for Equal Justice without Discrimination under the Law.
The writer is an eminent jurist
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