There are repeated mentions in the print media about the astronomical number of cases which are pending in the Supreme Court, the various High Courts and the lower courts. The reported numbers are close to 4 crore cases in the apex, high and lower courts respectively. The explanation for this state of affairs usually is a shortage of judges in most courts. What is to be done, except request the governments to expedite appointments? Overall, the legal fraternity is responsible and intelligent but it has not occurred to anyone influential that the system is defective.
Foremost ought to be the question of why so many adjournments are sought, and given freely by the courts. Not only freely, but also free of charge. In other words, the court’s time and facilities including the time of judges is misused. The court fees are paid according to the prescribed list, but the fees listed are regardless of whether a case gets over in two or three hearings or takes 30 hearings over several years. For the sake of freedom, I concede that litigants should have the basic right to seek adjournments. But on their part, they must be enjoined with a duty to pay some rate of fee for each adjournment. Say, the court fee to be paid for filing a suit is Rs.1 lakh, an adjournment should cost the side to the tune of about Rs.50,000 or at least Rs.25,000. The habit of adjournment seeking would come down drastically.
As a layman, who has to litigate from time to time – I run a school – I can say that litigants have a fancy for famous, known and popular advocates. Such advocates are busy because they argue many briefs simultaneously and also in out-stations, like Chennai, Jabalpur and so on. At times, the same distinguished advocate has to appear in the Supreme Court for a matter. My experience is that a litigant should choose an advocate who would have the leisure to study the matter thoroughly and be mostly available to argue the matter, rather than being in Chennai or elsewhere that particular day. All these factors should begin to count once litigants realize the price of their advocate’s absence.
Our school had an unusual experience in one of its initial cases in the Delhi High Court. The Advocate-on- Record suggested we go in for so-andso advocate, who is not only very capable but enjoys the respect of the High Court judge. The expense would be only one or two times more. We did as advised and the conference with the advocate was fixed for the Saturday preceding the Monday when our matter was listed. The advocate could not make it that day, so he postponed it to Sunday. That too proved to be very busy for him. Then we were told we would have a quick meeting on Monday morning at 10 a.m. in the lobby of the Court. We waited until 10.30 when news came that the advocate had had to go to the Company Law Board on a big and urgent matter.
By 11 a.m., our matter was slated to come up. So I asked the young man (who had never before argued in Court) to represent us, no matter what could happen. When the time came, my young advocate stood up, most likely trembling. Before he could say much, the judge said “Oh yes, this type of a matter was decided by the High Court only about two months ago. Has anyone got a copy of that judgment?” We had the copy but in his nervousness the young man had forgotten to present it. The moment he produced it, the judge said “Fine, leave it with me and I will write my order in a few days”. It eventually was a victory for the school! Although it was unusual, such flukes do not succeed often.
Apart from adjournments, another cause of delay is the freedom of advocates arguing for unlimited length of time. Some hearings go on for hours. Why shouldn’t the judge, in consultation with advocates of the two sides, fix say, half an hour or 45 minutes for each side? If one of the advocates crosses his time limit, he may but at his cost for every five minutes extra, rather like a taxi meter. The charge for every extra five minutes should be a standard one. Long arguments usually contain repetitions, although the advocates’ explanation is to make the judges understand their viewpoint as if they are not educated with more than a modicum of common sense. Nevertheless, this suggestion does not take away the freedom to argue at unlimited length. If the plea is a shortage of judges, it should not be difficult to appoint more. If and when there occurs a shortage of space, a second shift can be introduced. Court could begin at 8 a.m. and go on without a break until 1 p.m.; the second shift could commence at around 1.30 p.m. and go on until 6 in the evening. Advocates can be found as there is no dearth of them.
Appeal upon appeal is yet another phenomenon that causes delay. When I was in college in the 1950s, I knew several law students who told me that the Supreme Court was essentially a court of final appeal, mainly for constitutionally significant issues. It admitted some matters of high importance like fundamental rights or issues, which provinces were concerned about. Later, I found that cases which began in Small Causes Courts like landlords wanting their tenants to pay higher rents or vacate their premises would reach the Supreme Court. Think of the layers of courts that the matter must have crossed and climbed before reaching the apex court to finally decide whether the tenant should pay Rs. 6,000 p.m. or quit the flat he occupies. The suggestion to cut out such traffic is to allow appeals only up to two higher courts above where the issue was petitioned. There may be as many tribunals for specific trades, professional as possible to free the normal courts. But here again the appeals, if any, should not extend beyond one higher court.
Most common litigants continue to have faith in the higher judiciary as long as they are not asked for underthe- table money to win their case. In other words, in the popular mind, the reliability of a court is judged by its integrity. Delays are a matter of debate, but have not yet become a criterion of the judiciary’s efficacy.
But times are changing, and a point may be reached when courts would begin to be judged as much for their efficiency and quickness of justice, as for their honesty. I know of three cases of shoplifting in London, which were decided between 11.00 in the morning and noon. In two of the cases, the well known Old Bailey’s Court gave the litigants some kind of an informal bail in lieu of depositing their passports as a surety. At four o’ clock, the matter was taken up and the fines in two cases were 100 pounds and 175 pounds sterling in another. In the third case, justice was even quicker, as the young man was made to sit in the court and was fined 40 pounds, without availing of the services of a lawyer. The matter was decided by 4.30 pm, in half an hour. The reason for quoting these instances is to bring to notice how speedy justice can be.
The writer is an author, thinker and a former Member of Parliament.