Courting speed to ensure justice

Much of the good work the courts are doing with their progressive environmental jurisprudence and supervision of the other branches of gov...

Much of the good work the courts are doing with their progressive environmental jurisprudence and supervision of the other branches of government is being wiped out by mounting delays in court decisions. On the Original Side of the Bombay High Court, which has 15 judges sitting on April 30, there were 75,954 matters pending; 44,623 are suits for final hearing. Each of these suits will require evidence and could go on for months.

The basic cause for delay in the judicial system is that one side wants to maintain the status quo and benefits from the delay — the tenant who does not want to be evicted; the defendant who does not want to be convicted; the respondent who does not want to pay damages. Litigation is increasingly becoming like a high stake game of poker. There is a great deal of uncertainty in court decisions. Depending on the judges, two benches of the same court can come to diametrically opposite conclusions. The appeal court can so easily reverse an original decision. One of the consequences of this is that a litigant chooses to appeal. There is a general principle called stare decisis in judicial systems across the world, according to which courts should adhere to precedents and not unsettle positions that are established. In reality, this principle is usually ignored. In seeking to do justice in a particular case, judges will often ignore precedents.

The other aspect concerns the lawyers who man the system. They bear a fair share of the responsibility for the delay given their penchant for endless argument. The weaker the case, the longer the argument! The American Supreme Court hears less than 150 matters a year for oral argument; each side is allowed only half an hour of argument though each of the issues is a life and death one.

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The enthusiasm of the Indian lawyer is boundless. He will cite obscure authorities, argue unreasonable points, repeat himself in the hope that something somewhere will click since the feeling is that judges cannot be trusted to read a brief, or comprehend the issues even if they have read it. There is effectively no ceiling on oral arguments. Motions drag on for days. Examination in chief and cross-examination drag on for longer. The British courts control these delays by taking examination in chief on affidavit, handed over weeks in advance. In cross-examination, the judge will not only hurry you up but will stop you if you are not getting anywhere. We must ensure a similar process takes place here.

Oral arguments must be curtailed. It may be decided on a case by case basis before the matter begins and must be adhered to except in the most exceptional cases. Of course, the court must decide the ceiling, taking into consideration the importance of the matter. Oral arguments can be supplemented by written briefs. One of the other remedies for loquacious lawyers is imposing costs on lawyers for arguing irrelevant points. Judges are also to blame because they tend to give lawyers a long rope. But the right to a fair hearing has never meant the right to be heard ad infinitum — it only means an effective hearing, in which both sides have the right to put their point of view across.

In criminal jurisprudence, the courts already regard speedy justice as an integral part of justice. They have incorporated it as a part of the due process guaranteed under Article 21 of the Constitution of India. Should the right to receive justice of a few after endless arguments not give way to the incipient right to receive justice of the many? The Law Commission in its 99th report came to the conclusion that oral argument should be restricted on a case by case basis and should be supplemented by written submissions. This will go a long way towards improving the rate of disposal without seriously impairing the cause of justice.

A consequence of limited oral arguments is that the responsibility of judges increases. They have to scrutinise the written argument. But it is time to revamp the system. If delays have to be controlled, lawyers and judges will have to learn new ways to ensure litigants a better deal. A harmonious balance between written and oral arguments is bound to help the system, improve the quality of justice and reduce delays.