"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, May 10, 2012

Tareek Pe Tareek

Recently in news is the out of court settlement by the legal heirs of the unfortunate victims in the Enrica Lexie incident and legalizing it through the Permanent Lok Adalat. Experts says, it is nothing but a wise decision on the part of the family as the maximum compensation awarded would have been anything between 10 to 17 lakhs, and God only know when that would have be.

The culture of settlement for pragmatic reasons and the justification of delay and inadequate compensation is not something new. We have heard it from Bhopal days and sometimes even sugar coated with the idea of harmony. The real question in Bhopal and even here remains -whether this settlement was voluntary? It is not the suggestion that someone might have coerced the legal heirs or unduly influenced them. Was it their choice is the question. I would say that they were left with no choice but to settle given the discredited judicial system. Choice would have been real had they had a real chance to fight it out in the court and yet chose to settle. A truly volitional settlement would results in harmony not when one settles because they are prey of an inefficient legal and judicial system. 

The larger issue is the rapidly eroding credibility of our legal system, which has already given rise to private justice, at times to dangerous magnitude of public lynching of accused persons. The primordial instinct of revenge is channelized in a civilized society through the state centric system of punishments. It is this system that is on the verge of collapse.

I held breath after giving a query in Google, 'average lifetime of a suit in Indian judiciary', apprehending that it might bring a result - infinity. Though relieved not to get the expected, the result was disquieting - a lifespan which may range from anything between 15 to 25 years. The Supreme Court accepts a conservative estimate of three crore as the tally of pending cases in all courts put together. This figure in all probability is ill-fated to remain a statistics, while the agonizing stories behind it ignored like that of Shambhu Nath Mukherjee who started litigation against a dismissal order in 1965 and fought his way up to Supreme Court twice and the third time when the case reached Supreme Court he had became Late Shambhu Nath Mukherjee. Fittingly the Supreme Court described it as 'a fight between Goliath and a dwarf', the saga of the life experience of an average Indian litigant. (Delhi Cloth And General Mills Ltd. v. Shambhu Nath Mukherjee AIR 1985 SC 141)

Lately Supreme Court in the case of Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 - a litigation commenced in 1979 and is still pending - once again expressed anguish about the long pendency of cases while disposing of the appeals with an exemplary cost of Rs. 2,00,000/- noticing the dilatory tactics used by the litigant to 'harass the respondents and their children till eternity by abusing the judicial system.' A natural response by any would be 'is our judicial system so vulnerable abused and used to make a travesty of justice?' if so, what has the judiciary and the concerned Ministry done to undo the malaise. The system is yet to find an answer but people seems to have found one, 'do not repose faith in judiciary.' The irony is that access to justice and right to speedy trial are judicially recognized fundamental rights.

The delay in justice delivery and inefficiency plaguing the delivery system has been in vogue for a long time. Law Commission of India in its 188th report suggested a way out for high stake commercial litigation to bypass the queue and be tried in Commercial Division that may be established in each High Court, which will be techno savvy and will accept online petitions and have video-conferencing facilities. The objective is to bring down the longevity to a worldwide acceptable level of two years as pendency period. This may bolster the faith of the business class but will fall short to address the eroding confidence of the masses. Two years back the then Minister for Law and Justice had declared National Legal Mission to reduce the pendency to three years, which each States were expected to follow up with policies on similar lines. The Mission seems to have ended at the beginning. 

The reasons for long life of litigation are aplenty. From infrastructural deficiencies, archaic procedural laws to manipulation by the litigants. Different bodies and institutions also by far have contemplated solutions but results seem to be hard to come by. Fragmented approaches of finding solutions in the establishment of special courts, alternate dispute resolution mechanisms, sporadic introduction of court management techniques do not seems to work. A concerted effort at making realistic plan outlay, budgetary provisions, targeted central support to states, overhaul of procedural and substantive laws, efficient and sustainable court management system, sound litigation policy for government agencies, infrastructural and human resource development and judicial accountability is to be worked out. Else the fundamental right to access to justice will remain a chimera and people will be forced seek private justice and the rule of the jungle than the rule of law will be the outcome.

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