May 13, 2009 11:22:25 am
There was a news item that almost passed unnoticed last week. Last Friday,May 8,lawyers in Delhi were on strike. Not lawyers everywhere,only those in district courts. Thats not new. What was new,however,is that judges decided to conduct hearings and pass orders in the absence of lawyers.
The issue of backlog in Indias courts has been discussed threadbare. What needs to be done to reduce backlog and improve speed of dispute-resolution is also known. Improvements in substantive procedural law (Criminal Procedure Code,Indian Evidence Act,to name two) are indeed required. Two-thirds of the backlog is in criminal cases. Consequently,with the civil side having improved after amendments to the Civil Procedure Code in 2001-2002,the incoming government should focus on criminal backlogs,including police reforms and relatively trivial cases (Negotiable Instruments Act,Motor Vehicles Act etc.) that clutter the system.
Beyond Lok Adalats,Peoples Courts,Family Courts,Womens Courts,fast-track courts,there have also been successes in some states with mobile courts,video-conferencing and shift systems in courts,all capable of replication in other parts of the country. These improvements arent contingent on amendments to procedural law and should be pushed by the judiciary,since there is an overwhelming perception that the judiciary doesnt do enough to fix the system,and is unwilling to subject itself to external scrutiny and evaluation.
However,whats rarely talked about is the role of the bar. Nasty quotes and jokes about lawyers apart (and several of these are always floating around) the judiciary has now become much more susceptible to lawyer influence. Over time,this has worsened especially in the lower judiciary. The legacy of a common law jurisdiction makes it easier for lawyers to mess around. In civil suits,once issues are framed – and even before – at least 50 per cent of the time one knows what the eventual outcome will be,unless serious questions of law are involved,which is an unlikely event in lower courts.
Since the outcome is known,one or both parties have a vested interest in prolonging litigation (and not speedily settle it,as is commonly assumed to be the case) and lawyers aid the process by invoking procedural matters. Conciliation/mediation is an option,as are forums where lawyer presence isnt mandatory.
However,since disputes will still be lodged in the formal court system,how does one rescue lower courts from lawyers? There will be the inevitable argument that citizens dont know the law or their rights. Hence,we need lawyers. But why is it that lawyer influence has increased over time?
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