Posts Tagged ‘Judiciary’

Why court cases pile up

October 26th, 2009

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

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Dispensing justice – Lawyers to blame for judicial mess

July 3rd, 2008
IN our eagerness to blame the mess, which the Indian justice administration system is currently faced with, on the judiciary, we frequently neglect to attribute the blame to where it rightly belongs – the lawyers.
The media of late has been reporting unhesitatingly incidents where lawyers have gone on the rampage, even on court premises. Images of ruffians wearing black coats and bands smashing furniture and clashing with the police have unfortunately become all too common on television.
It is not uncommon to find a mob of these “officers of the court” manhandling people accused of crimes in an apparent exhibition of moral outrage against their alleged heinous deeds. Each such report and each such unrestrained exhibition of hooliganism is acting as the proverbial additional nail in the coffin of the Indian judicial system.
Chief Justice SS Sodhi’s recent book “The Other Side of Justice” documents events which seem straight out of a Bollywood masala movie. The idea that lawyers affiliated to the Bar of one of the oldest high courts in the country could actually stampede and behave no better than common criminals, and with as much impunity, is shocking and ought to send alarm bells ringing everywhere.
The can of worms that the retired Chief Justice has opened is a clear signal that there is something terribly wrong with the way that we are training law students or calling them to the Bar.
In order to be called to the Bar in most “advanced” countries, a mere law degree is not considered sufficient. The entry barriers to the legal profession have been deliberately set sufficiently high as to preclude the entrance of any person unfit to participate in what is still regarded in those countries as a noble profession.
Legal education imparted in most law colleges in India is in itself shameful. “Professors” of law who have not published a single academic paper after having managed to get employed, or whose predated knowledge of the law is woefully inadequate, teach students only theoretical aspects of law. There is no forum or institute, nor any course or specialised training which a student has to undergo in order to make the transition from a law graduate to a lawyer.
The issuance of a law licence by the Bar Council too is a mere formality. There is no requirement for a law graduate to acquire any advocacy skills, to learn court etiquette or manners, or even have any knowledge of the law. If a person has been awarded an LL.B. degree by a university, he has the right to appear even before the Supreme Court of India the same day he gets his law licence.
Incredible as that may seem, it is nothing in comparison to the fact that Bar Councils like the Bar Council of Punjab and Haryana have also implemented a “tatkal” scheme for obtaining a law licence. If you pay an extra three thousand rupees on top of the six or seven thousand rupees normally charged, you are guaranteed your law licence within 24 hours.
A scheme enacted some years ago by the Bar Council required fresh law graduates to work with established lawyers for a year before being awarded the licence – and was predictably met with a huge outcry from the Bar as well as from the student community and was abandoned soon afterwards.
It is hardly surprising, therefore, to see ill-trained law students, bred on a diet of ridiculous courtroom scenes in trashy movies and professing motivation by reports of the so-called “public interest litigation” appearing in newspapers, making a mockery of the law.
The legal system in India is not a creation of a year or a dozen years ago. Despite all the criticism we may level against the English, we have, as a matter of fact, inherited a legal system with roots which go back hundreds of years. For a lawyer to ignore the historical legacy of the English system and its (usually) high traditions, especially those governing the conduct of lawyers, is to reduce the system to a pitiable condition.
For the most part, we lawyers are to blame for the common man’s creeping disillusionment with the legal system. Unfortunately, a bad lawyer makes for an even worse judge and in turn is responsible for a further corruption of the legal ethos.
Chief Justice Sodhi’s book is an unusually honest and candid admission by an insider of the ills that plague the legal system. The situations he recounts are being re-enacted across the country on a daily basis and the actors he names can be found in one form or another, professing leadership of bar associations and councils everywhere.
It is high time that a concerted effort is made to restore the dignity of this system, the honesty of character and the idealism of law students.

IN our eagerness to blame the mess, which the Indian justice administration system is currently faced with, on the judiciary, we frequently neglect to attribute the blame to where it rightly belongs – the lawyers.

The media of late has been reporting unhesitatingly incidents where lawyers have gone on the rampage, even on court premises. Images of ruffians wearing black coats and bands smashing furniture and clashing with the police have unfortunately become all too common on television.

» Read more: Dispensing justice – Lawyers to blame for judicial mess

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Judges vs Judges – Court is not for making laws

January 30th, 2008
THE function of a judge is to take a given matrix of facts and then apply the law, as it was on a relevant moment in time, to return a decision on the question posed to him. A judge is not a law maker and a judgment is incapable of conferring a right or a duty on any person. Judgments are only endorsements of the rights or duties already attached to people, but which may have been disputed or called into question.
Really, a person claiming to be the rightful purchaser of a disputed property cannot say that the court or the judge gave him the right to have the property; at best, he can only claim that the judge vindicated his claim and rejected the contentions of his opponents.
A writ petition before a High Court or a Supreme Court bench is essentially to be treated in the same manner. The judge deciding a case where the petitioner claims the violation of his right to life, or of personal liberty or free speech — or of any other right that “We the people” have conferred on him — may only examine all the facts before him and decide whether that right has actually been conferred upon him by the Constitution or a statute and in breach direct the government or other persons to restore what was rightfully his, to begin with.
A court of law is, therefore, a restorative forum at best. It is not a forum for social or economic or cultural change at all. A court must only function within the confines of the conditions which the people, acting through the legislature, have enacted in the form of laws. If the people are unhappy with a particular rule or law, then the supreme and exclusive power to change it rests exclusively with their chosen representatives, and it is patently indefensible and unjustifiable for a judge to substitute his will or conscience and go against that law.
A law made by a parliament or a legislature represents the will of the majority of the people, and neither their motives nor their intent may be questioned by a judge.
A judge may, of course, examine the process which leads to the making of the law and determine whether or not the process satisfied the procedures (again, only the procedures prescribed by the people in laws authorising their representatives to legislate). If the judge finds the procedure adopted by the legislators to be contrary to those procedures, he may hold the law to be badly made. But for a judge to go into the motives of the legislature cannot be justified, not in a democracy at least.
It is quite instructional to read the oath which every judge is obligated to swear while being sworn in. The oath, itself prescribed in the Constitution, enjoins a judge to be true to the Constitution but makes neither demand nor requirement for the judge to owe any form of allegiance to the font of all authority, the common man, who collectively with his peers makes up “We the people”.
This has two connotations. One, the judge has no right to empathise with or to be revolted by any litigant or cause. Two, the judge is subservient only to the law — and the law as given to him by Parliament and legislatures. There is no other law nor source nor conscience which he may obey.
Judges, unfortunately, express their frustration at the manifest injustice being caused by particular pieces of legislation in their judgments. Latin and Greek maxims are often the chosen vehicles of such transgressions and in wanting to appear to do justice, judges inadvertently perform the greatest disservice possible to the law.
The most desirable characteristic of any law is its predictability. The law ought to be a predictable set of rules and, given the same set of facts and circumstances, must return only the same one answer each time. A legal system which depends on the personality of the actors — the litigants, counsel or the judges — may well be a great social system, but is a poor system.
When judges start tweaking the law to make it seem more just as per their individual conscience, they introduce the “x” or the uncertainty variable into our interactions. Judges can’t possibly be expected to comprehend each and every ripple that would be caused by their plucking at a single strand in the fabric of the law as it exists and often end up causing unthinkable effects.
While saying that judges cannot “make the law”, I also contend that judges can’t even opine about what the law is going to be, even a moment into the future. To change the law or to wipe it out all together is the exclusive domain of the legislature, and for a judge to premise his judgment on a future expectation would be equally fallacious.
Democracy by definition means that if we can get enough people to agree to the same thing, then our representatives can enact it as a law and even the minority which doesn’t agree with it must still abide by those rules.
Now if a judge feels, with all the strength of his conscience, that a particular rule is unjust — generally, or in a given case — even then he must not try to mould the law to his personal prejudices. Not only because it makes the law arbitrary and unpredictable, but also because it goes against the collective will of the majority. The presumption must be that every law which is on the statute books is desirable and essential to the majority of the people. One must also acknowledge that most of the judicial misadventures are largely due to the extremely persuasive and misplaced advocacy of advocates and counsel.
The most vocal critics will, of course, point out that the executive and the legislature have abdicated their responsibilities and have forced the constitutional courts to “legislate”. If there has been a vacuum in good governance, then it is because either the legislature or the executive has been failing in its duties. The failure of the executive should possibly trigger off a rethink of our entire system of civil service and warrant its revamp or abolition. The failure of the legislature may possibly be because we don’t want better legislators representing us in Parliament. But neither possibility, horrifying as it may be, warrants the flexing of judicial muscle.
If a Judge feels that the law is imperfect and he is unable to impose it in its full majesty, let him resign rather than be untrue to his oath. But let not a judge feel that he alone can save this overburdened land from its unruly masses.
An oft-speaking judge, said Francis Bacon, is like an ill-tuned cymbal. And that unfortunately is the reason why a cacophony is emanating from our courts today. Judges have got used to speaking through their judgments and can rarely restrain themselves from proselytising. Extremely learned judges have written literature in the guise of judgments; but for a lay person to comprehend the implications of the “flowing of the Ganges under the bridge” is a tall order, indeed.

THE function of a judge is to take a given matrix of facts and then apply the law, as it was on a relevant moment in time, to return a decision on the question posed to him. A judge is not a law maker and a judgment is incapable of conferring a right or a duty on any person. Judgments are only endorsements of the rights or duties already attached to people, but which may have been disputed or called into question.

Really, a person claiming to be the rightful purchaser of a disputed property cannot say that the court or the judge gave him the right to have the property; at best, he can only claim that the judge vindicated his claim and rejected the contentions of his opponents.

» Read more: Judges vs Judges – Court is not for making laws

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