The courts, the commissions and various legal luminaries have failed to identify the crux of the issue of pendency; the increase in number of litigants. Indeed legal awareness has enabled people to fight for their justice. However, it has failed to enlighten citizens of their rights and duties. They fight “their” justice in the courts but fail to accept the “real” justice only to accelerate the strained relationships.
By S. Madhu
Justice delayed is justice denied” is the oft repeated sentence which itself is delayed and denied both in letter and spirit. The towering Supreme Court, judges, lawmakers, legal luminaries, etc., have made the topic a routine subject for tea-time chats. Pendency is an ever- pervading dilemma mutant in the legal system, stultifying the cause of justice. Commissions have had recommended different thing to tackle the ever growing “gigantic” problem as opined by Justice J.B Sinha, pioneer of Lok Adalats in India. However pragmatic the studies are, in reality they have not been enforced or an effective paradigm shift witnessed.
Faith in the legal system is determined by its ability to provide accessible, speedy and cost effective justice to all equally. The people are a mute witness to the court process, often spending their lifetime savings to their unending case. Pendency is a result of the court procedures, lawyer’s tendency to drag cases and other unavoidable reasons. At the end it is the clients who are left to suffer this ignominy. The fact is that for every 1,467 Indians, a lawyer is there to take their briefs and for every million Indian population 14 judges help to render justice, however 2.7 crore cases are still left pending in the trial courts alone. In China there are 1,30,000 courts while it is just 14,000 courts in India with almost 85 percent increase needed to balance the litigating population. Financial experts had opined that the delay is eating up 2 percent of the GDP on an average especially creating a hostile environment for investment. Financial investors investing in India has a “legal risk premium” which is an additional cost involved for investment due to the weak legal system. This arises because of the obstacles affecting enforcement of a claim or a contract especially in matters relating to land acquisition. A 2009 report of the World Bank on “Doing Business” had ranked India 173rd worldwide in terms of enforceability of contracts. The report listed 56 procedural steps, which totaled 1420 days from filing the claim to the enforcement of judgment. In addition to this for enforcing a contract it takes 462 days.This has a debilitating effect on potential donations. Pranab Mukherjee as Finance Minister, once expressed the dire need to resort to Alternative Dispute Resolution owing to the situation existing and has called upon a legal framework wherein it can be successfully implemented. According to him “Delays in courtrooms lead to corruption in government; lack of investment in vital economic spheres due to uncertain contract enforcement; higher transaction costs and a general inflationary bias. The study estimates indicate that streamlining the judicial system will increase the GDP growth rate by 2 percent per annum. This high payoff surely outweighs the costs of investing in improving the system.”
The recent National Conference on “The National Consultation for strengthening the judiciary towards reducing the Pendency and Delays” provided the perfect platform for a thought on examining and conducting a post mortem on the issues of pendency and arrears. The “vision statement” contained appreciable changes in the structure of courts. The most far reaching is the concept of “Contract judges” envisaged to decide backlog cases. About 15,000 trial judges and 700 high court judges would work in three shifts deciding the legality of contracts, etc. The vision is to eliminate the thought of pendency and arrears and securing speedy justice. However, whether the contract judges would be able to function within the prescribed “procedural” limits and deliver judgments in a better and faster manner is doubtful. Similarly the very concept of “contract judges” goes against the jurisprudential existence of judges in a society, who is considered as an epitome of justice.
The financials involved in the legal system was the topic in the recent conference at Delhi on “Safeguarding Investment by Litigation process,” which also highlighted the need to streamline the judicial process and encourage the ADR System especially by making litigation a last resort and settlement the first resort.
The courts, the commissions and various legal luminaries have failed to identify the crux of the issue of pendency; the increase in number of litigants. Indeed legal awareness has enabled people to fight for their justice. However, it has failed to enlighten citizens of their rights and duties. They fight “their” justice in the courts but fail to accept the “real” justice only to accelerate the strained relationships. Whenever an issue arises, it takes the clout of a dispute the moment an Advocate Legal Notice is been sent to the opposite party. The thought of settling issues do not arise, with a determination to win over others facing the consequences of the court. Often parties derive pleasure when they drag others to the court even if the case is not favorable to them. An ego-less society is hard to envisage, however a culture to settle disputes rather than litigate is not impossible. Even the Chief Justice of India had remarked recently that the main reason for cases getting piled up is because of the “vested interest” of various individuals and institutions, who file cases for petty reasons too. In Kerala, 33 cases have been filed per 10,000 people while it is just five in states like Chattisgarh. Unless and until the government and the judiciary tackle this dilemma can it strengthen its cause for a dispute free nation.
The fact that dispute resolution systems are been practiced in other countries and was existing in ancient India strengthens the cause of such a system in India. Alternative Dispute Resolution (ADR) mechanisms like mediation, conciliation and arbitration involve the participation of the parties with a consensual settlement reached. Procedure-less, cost effective and quick are the various advantages attached to such a process. This would go a long way to reduce burden in the existing courts and more importantly provide the desired justice to the people. A “vision statement” reflecting the encouragement of such a process is the perfect solution to the issue of pendency. It is time for the people to take their own initiative to decide their cases rather than depend on a process which causes delay and is unsatisfactory. The decision to build courts specifically to deal with corporate disputes is noteworthy; however it is time that justice is made by the people, of the people and for the people. This can only be done by cultivating a culture of mediation and settling disputes and encouraging ADR Centers to facilitate this noble endeavor.