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Cure the malaise, not its symptoms-Anirudh Krishnan
-The Hindu


There has been a systemic breakdown in the justice delivery system

The critics of the Aarushi murder case seem unable to see the wood for the trees. The focus of endless debate on the case has been on an inadequate appreciation of evidence and the role of the media in cases of this nature. The main issue appears to have been missed - the fact that the overcooked scrutiny is itself a result of the eternal delay in the judicial system.

Had the verdict been out in fair time, the requirement for conducting a "trial by the media" would possibly have never arisen. The role of the media and a public analysis of the court verdict are but side effects of the rot which plagues our judicial system today - a rot caused by delays and consequent docket explosion. Unless something is done to cure this malaise, we will continue to have the Rathores of the world getting off scot-free after nearly 19 years of the complaint being registered, more than 40 adjournments and over 400 court hearings, and the Saharas continuing to evade payment of huge amounts of money to public bodies like SEBI.

The most obvious targets appear to be the members of the Bar and Bench - after all, it is they who seek and grant adjournments. In fact, the Supreme Court, in Shiv Cotex vs Tirgun Auto Plast (P) Ltd., describes adjournments to be "like cancer corroding the entire body of the justice delivery system." To blame lawyers and judges for the problem amounts to nothing but burying one's head in the sand.

Adjournments are inevitable in the Indian judicial system as judges and lawyers are overburdened. The causes for this are twofold - an unprecedented number of frivolous cases which are filed and the lack of infrastructure to handle them.

Costs follow events

The former is encouraged by the statutory regime prevalent today, which encourages litigants to "take a chance" by initiating litigation. For instance, Section 35A of the Code of Civil Procedure, 1908, provides that if a court determines that the case dismissed by it was vexatious, it has the power to award compensatory costs to the innocent party; however, such costs shall not exceed a grand sum of Rs.3,000. This provision was enacted in 1908 when the figure stated was sizeable; today, it has no significance. Contrast this with the law in the United Kingdom where courts adopt the "cost follow the event" formula - a U.K. court, except in certain well-recognised exceptional scenarios, will direct the losing party to bear the entire cost of litigation of the winning party, including the legal fees, on the basis of the premise that but for the losing party's actions, the winning party would not have had to incur those costs. This rule has two effects - first, it disincentivises the filing of frivolous litigation and, second, it brings in a culture of obedience as the price payable for disobedience is high. The "costs follow the event" rule, therefore, acts as an automatic filter for frivolous litigation. Such a filter is the need of the hour in India where increasing vexatious litigation has a downward spiralling effect.

It sends the entire system into a tailspin - takes up valuable court time, thereby increasing the time for final adjudication. In the snowballing effect, more interim applications seeking interim reliefs get filed which, in turn, use up valuable court time thereby throwing out of gear the time taken for final adjudication.

Judge-people ratio

The problem is the lack of infrastructure to handle litigation in our country. In P. Ramachandra Rao vs State of Karnataka, the Supreme Court states that the root cause for the delay in the dispensation of justice in our country is a poor judge-population ratio, which the Court notes is 10 times lower than in the U.S. and five times than that in the U.K. In its 120th Report on Manpower Planning in Judiciary, the Law Commission of India has observed this: despite the introduction of Article 39A in the Constitution, which is a Directive Principle of State Policy obligating the state to secure such operation of legal system which promotes justice, and to ensure that opportunities for securing justice are not denied to any citizen, attempts at improving the administration of justice have been ad hoc and unsystematic. In order to improve the situation, fast track courts and numerous tribunals have been created.

However, the problem is more qualitative than quantitative. The pay scales and working conditions in the lower judiciary are so dismal that they ensure that no talent is drawn towards it. The salary scales of the higher judiciary are no different - it is an open secret that those successful lawyers who agree to be elevated to the Bench do so only because of the honour and dignity that the post offers and the opportunity it provides to make a difference to society. Those who do not look at the post in this manner have no inclination to take it up. As the renowned jurist, H.M. Seervai, observed: "It may be said that we are a poor country and cannot afford to pay high salaries to judges. I would like to record my opinion that only an extremely wealthy country can afford the luxury of an ill-paid judiciary, and that the greatest sufferers of an ill-paid judiciary would be the Union and the State governments, because today, the biggest litigant in India is the State. In my opinion, arrears of work cannot be diminished by diluting the quality of the judiciary; the correct remedy is to make a judicial career sufficiently attractive for lawyers of the highest standing."

While countries like Singapore and the U.S. are making an attempt to ensure that being a member of the higher judiciary is a coveted post, the trend in India seems to be the reverse. In this regard, a mere perusal of the proposed Judicial Accountability Bill is enough to conclude that this legislation, if enacted, would further discourage lawyers from joining the bench. The Bill, while addressing the crucial aspect of judicial ethics and transparency, provides wide scope for misuse.

Traditionally, it has been the judiciary which has stood up against the excesses of the executive and the legislature - most notably during the Emergency. Even today, it is the Supreme Court that is spearheading the battle against most major scams. A strong justice delivery system is essential to ensure that the right balance is maintained among the three pillars of the Constitution. That the fourth estate's role has become so important today is itself an indication that there is a systemic flaw in the others. It is time to address the systemic rot, rather than focus on the effects of it.

(Anirudh Krishnan, an advocate, Madras High Court, is the chief editor of Justice R.S. Bachawat's Law of Arbitration and Conciliation, and author of Law of Reservations and Anti-Discrimination.)