Giving stay orders as a routine is to blame
IT is highly instructive to sit in any court at precisely 10 every morning. The first order of business before most judges in a High Court every day is to hear the freshly filed cases and to consider whether to entertain the petition or appeal, or whether to dismiss the case out of hand immediately.
Typically, a lawyer has just a few minutes to make out a case and try to convince the judge of the validity of the cause he is pleading. In those cases which make the cut and are not thrown out immediately, it is now usual for the judge to put the other side on notice (or in legal parlance, to issue a “notice of motion”) and thereby to call them on a future date to appear and rebut the petitioner or the appellant’s lawyer.
This system of issuing a notice in order to hear the other side before admitting a case for hearing at length was initially meant to weed out frivolous or patently unsustainable cases and prevent them from clogging the courts’ docket. But now this system has degenerated to the extent that the fresh “motion” cases take up most part of a judge’s working day and leave him very little time to hear the “admitted” or “regular” cases which require in-depth consideration.
In a violent departure from the intent behind this system of issuing a “notice of motion”, it has become the norm for a majority of the cases filed in the High Court to be carried on the “motion” docket for many years rather than being “admitted” or “dismissed” swiftly.
This is not, however, the main reason for the insurmountable pendency of cases which the High Court is faced with. The real reason why cases continue to pile up and the reason why one hears of lawyers and litigants going to great lengths to delay the adjudication of the cases by the courts is the practice of appending the vexatious sentence “stay operation meanwhile” to the initial order putting the other side on notice.
It has become a commonplace practice for the judges, who are presented with petitions or appeals against the orders or judgments of inferior courts, to direct that the order or judgment which has been challenged shall not be given effect to and shall be kept in abeyance until further orders. The hitherto successful respondent who finds himself called to the High Court even after winning a tortuous legal battle in one or multiple subordinate courts suddenly finds that the other side has managed to get his foot in the door in the High Court; and all the words of wisdom and the reasons hitherto marshalled by the judges in the lower courts are set to naught by this “stay” order.
An order by a High Court judge to “stay” a subordinate court’s order is nothing but a vote of no-confidence in that subordinate judge. Take an example here. Let us say that a landlord files a case against his tenant seeking his eviction from some rented premises. Let us say that the tenant puts up a spirited defence before the court of the Rent Controller but is unsuccessful. The tenant, who has been ordered to vacate the premises now files an appeal before the Appellate Authority who immediately “stays” the order of eviction and proceeds to decide the appeal — over a period of a few years usually. Now even if the landlord is successful in repelling the appeal filed by the tenant, the tenant has the right to file a revision petition before the High Court.
At this third stage in the course of the litigation, the High Court is well aware that the tenant has already been ordered to be evicted by at least two judges who function lawfully under the direct control of the High Court. Still, if the tenant’s lawyer is able to make out even the semblance of a case – on a technical ground or rarely on some substantive issue – then the High Court judge is almost guaranteed to once again stay the judgments ordering the tenant’s eviction. Having secured this order of “stay”, neither the tenant nor his counsel is going to be in any pressing urgency to have the petition heard and decided at any early date.
The order of stay is an embarrassment for the judge against whose judgment the High Court passes the order. The order of stay is a preliminary finding on the part of the High Court judge that the subordinate judge seems to have made a mistake and ought not to have decided the way he has. It goes to the very judicial competence of the subordinate judge and casts his ability, integrity and impartiality into doubt.
Needless to say, if the High Court feels that a particular subordinate judge is consistently ignoring the law or deciding wrongly, it is open to the High Court to discipline the judge or even withdraw work from him. This logical approach is unfortunately shunned in favor of “righting the wrongs” of a bad judge by staying his judgments and burdening the High Court with additional work and reopening the case for re-examining the facts.
The very fact that a judge has given a patient hearing to a case and has delivered a judgment ought to inspire sufficient confidence in the mind of a superior court’s judge that justice has been done. It ought to be presumed that the judgment of the subordinate judge must be correct and must have been arrived at after due legal assistance from the counsel on either side.
In reality, however, it is usually presumed by the judge issuing a notice of motion that the subordinate court lawyers as well as judges are incompetent and unless the High Court intervenes, no justice would be done. It is presumed by superior courts that allowing the judgment of the lower court to be implemented expeditiously would necessarily result in a miscarriage of justice.
The filing of an appeal is an attack on a lawfully delivered verdict and must never be treated as a routine affair, for if successful the appeal or revision exposes a miscarriage of justice. The reversal of a judgment by a higher or appellate court must be viewed as a very serious failure on the part of a subordinate judge and not treated as casually as it is these days.
To ensure that litigants and their lawyers do not indulge in speculative litigation or frivolous tactics, to restore the respect and authority of the subordinate judiciary, indeed to curb the enormous backlog of cases, it is imperative that the passing of stay orders in routine is deprecated.
The procedural law which is on the statute books provides sufficient protection for a person who is genuinely aggrieved of a judicially bad order or judgment to approach a superior court expeditiously and to secure a speedy reversal. There can be no justification, therefore, to condemn the subordinate judge and to doubt his judgment in the few minutes that the judge gets to hear the case on the very first occasion that the petition or appeal is set before him.
This self-discipline which the superior judges must exercise is by far the simplest and the most effective way to curtail the litigious rut our society is falling into and to restore the function of the constitutional courts to their correct role.
The passing of stay orders as a matter of routine undermines the authority of the subordinate judges and turns the multiple rounds of hotly contested litigation before subordinate courts into a mere formality which litigants must endure before finally getting justice in the High Courts.
IT is highly instructive to sit in any court at precisely 10 every morning. The first order of business before most judges in a High Court every day is to hear the freshly filed cases and to consider whether to entertain the petition or appeal, or whether to dismiss the case out of hand immediately.
Typically, a lawyer has just a few minutes to make out a case and try to convince the judge of the validity of the cause he is pleading. In those cases which make the cut and are not thrown out immediately, it is now usual for the judge to put the other side on notice (or in legal parlance, to issue a “notice of motion”) and thereby to call them on a future date to appear and rebut the petitioner or the appellant’s lawyer. » Read more: Why court cases pile up
