J VENKATESAN IN THE HINDU
Bench lists steps to be taken by trial courts while dealing with civil cases
Expressing concern over the prevailing delay in disposal of civil cases, the Supreme Court has streamlined the procedures to be followed by trial courts as well to curb frivolous litigation. A Bench of Justices Dalveer Bhandari and Deepak Verma, dealing with a civil appeal filed by Ramrameshwari Devi and others, said: “The courts have to ensure that there is no incentive to uncalled-for litigation. It is a matter of common experience that the court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled-for cases.”
Quoting a study, the Bench said: “Ninety per cent of our court time and resources are consumed in attending to uncalled-for litigation, which is created only because our current procedures and practices hold out an incentive to the wrongdoer. Those involved receive less than full justice and there are many more in the country, in fact, a greater number than those involved who suffer injustice because they have little access to justice, in fact, lack of awareness and confidence in the justice system.”
Giving an example of the problem, the Bench said: “It is a matter of common knowledge that lakhs of flats and houses are kept locked for years, particularly in big cities, because the owners are not certain that even after the expiry of the lease or licence period, the house, flat or the apartment would be vacated. It takes decades for the final determination of the controversy and wrongdoers are never adequately punished. Pragmatic approach of the courts would partly solve the housing problem.”
Writing the judgment, Justice Bhandari said: “The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed. The existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.”
As civil litigation was largely based on documents, it would be the bounden duty and obligation of the trial judge to carefully scrutinise, check and verify the pleadings and documents filed by the parties, the Bench said. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Civil Procedure Code. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency on the litigants to introduce false pleadings and forged and fabricated documents. Imposition of heavy costs would also control unnecessary adjournments. “In appropriate cases, the courts may consider ordering prosecution, otherwise it may not be possible to maintain the purity and sanctity of judicial proceedings.”
The Bench said: “Courts have to be extremely careful in granting ad-interim ex-parte injunction. If injunction has been granted on the basis of false pleadings or forged documents, then the concerned court must impose costs, grant realistic or actual mesne profits and/or order prosecution. This must be done to discourage the dishonest and unscrupulous litigants from abusing the judicial system. In substance, we have to remove the incentive or profit for the wrongdoer.”
The Bench said: “No doubt, it would take some time for the courts, litigants and the advocates to follow these steps, but once it is observed across the country, then the prevailing system of adjudication of civil courts is bound to improve.”
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Dr. Justice A. R. Lakshmanan IN THE HINDU
India has one of the largest road networks in the world — 3,314 million km — consisting of national highways, expressways, State highways, major district roads, other district roads and village roads. About 65 per cent of freight and 86.7 per cent passenger traffic is carried by the roads. The motor vehicle population has recorded a significant growth over the years. Two-wheelers and cars (personalised mode of transport) constitute more than three-fourths of the motor vehicles.
According to a Maruti Suzuki weblog, more than 1,00,000 Indians are dying every year in road accidents. More than a million are injured or maimed. Many years ago, a study found that road accidents cost the country some Rs.550 billion every year.
A recent survey by the Central Road Research Institute shows that more than 90% pedestrians feel unsafe while crossing the roads, while they comprise more than 50% of road victims.
Is it due to a lack of apt provisions in our law that travel through Indian roads is a tryst with death?
All the more so, because despite the Supreme Court’s directions to the police and all other authorities entrusted with the administration and enforcement of the Motor Vehicles Act, 1988 and generally with the control of traffic in regard to traffic safety, reckless driving by government buses has not diminished.
In view of the above, I, as Chairman of the Law Commission of India, prepared a Consultation Paper on this important subject and suo motu made a recommendation to the Government of India through the Law Ministry and the Report No.234 is pending with the Ministry. In this article, I have dealt with the present Law of India IPC 1860, viz., Sec.279, 304A, 336, 337 and 338, the Motor Vehicles Act, 1988, the Road Traffic Act, 1988 and the Road Regulations 1989.
The then Law Commission also submitted its report (42nd Report) in June 1981 and examined the provisions of the IPC.
Any State government may, after previous publication, by notification make rules for the purpose of carrying into effect the provisions/rules, etc., in different areas of the State. Such rules may provide for
- the removal and the safe custody of the vehicles including their loads which have broken down or which have been left standing or have been abandoned on a highway;
- the determination, maintenance and management of parking places for the use of vehicles and animals and the fees, if any, which may be charged for their use;
- prohibiting the use of footpaths or pavements by vehicles or animals;
- prohibiting or restricting the use of audible signals at certain times or in certain places;
- regulating the loading of vehicles and in particular, limiting the loads carried in relation to the size and nature of the tyres fitted;
- a right of way for ambulances and fire brigade vehicles;
- the control of animals likely to frighten other animals or pedestrians;
- the control of children on highways;
- prohibiting the riding by more than two persons at the same time on cycles other than cycles designed for the purpose;
- prohibiting the riding of more than two cycles abreast;
- limiting the age of drivers of vehicles;
- regulating the driving of vehicles and animals at night; and
- regulating the use of highways by pedestrians. The State government may, after previous publication, by notification make rules regulating the construction, equipment and maintenance of vehicles used on highways and public places. Different rules may be made for different areas of the State.
The rules may be made under this Section governing any of the following matters either generally or in respect of public vehicles of a particular class or description or in particular circumstances, namely:
- the width, height and length of vehicles;
- the size, nature and condition of wheels and tyres;
- lamps and reflectors;
- warning devices;
- the inspection of vehicles by prescribed authorities;
- regulating the particulars exhibited on vehicles and the manner in which such particulars shall be exhibited.
The State government may also make rules for regulation of the use of public vehicles, viz., the issue, renewal or cancellation of driving licences, issue of permits etc.
- the documents, plates and marks to be carried by public vehicles, the manner in which they are to be carried and the language in which such documents is to be expressed;
- the badges and uniforms to be worn by drivers;
- the fees to be paid for permits, driving licences, duplicate copies of permits or driving licences, plates, badges, and appeals preferred before statutory authorities;
- the limiting of the number of public vehicles or public vehicles of any specified class or description, for which permits may be granted in any specified area, or on any specified route or routes;
- the fixing of maximum or minimum fares or freights;
- the maximum number of passengers or the maximum quantity of goods that may be carried in a public vehicle;
- the conditions subject to which passengers, luggage or goods may be carried in a public vehicle;
- the construction and fittings of and the equipment to be carried by public vehicles, whether generally or in specified areas or on specified routes; and
- the safe custody and disposal of property left behind in pubic vehicles;
Traffic personnel are not controlling traffic and discharging their duties effectively. People, whether educated or illiterate, have scant respect for traffic rules and regulations. The traffic personnel should give immediate attention to the following and take effective steps to enforce discipline in regard to:
- Non-observance of traffic rules;
- Jumping the red light;
- Crossing the speed limit;
- Driving without valid licence;
- Driving under the influence of liquor/drugs;
- Driving while talking on the mobile;
- Driving without helmet;
- Overloading of passengers in autos/share autos;
- The driver’s seat is occupied by a minimum of three persons in share autos/other autorikshaws and vehicles are parked haphazardly. Over-speed of scooter/motorcycle, crossing the yellow line or violating traffic rules;
- An entire family (minimum four persons) riding a scooter/motorcycle without realising that this is a traffic offence and such travel is at the risk of their lives;
- Government buses, no rule or regulation. Parking them at any place;
- One-way traffic signal/total violation;
- Suffocating jam-packing of stage carriages;
- Confiscation of vehicles fitted with LPG cylinders which are meant for home kitchen, arresting and prosecuting the owners/drivers of such vehicles;
- Weigh bridges should be installed at all entry and exit points to and from a city as well as toll collection centres to keep in check overloading of vehicles;
- Driving schools to impart training at a nominal fee by the government;
- Excess collection of fares by omnibuses during festival seasons. Stringent measures to be taken forthwith to cancel the licence of such offenders;
- There should be no exemption to Government vehicles from insurance against third party risk. Sec. 146 of the Motor Vehicles Act should be amended for the purpose;
- Enormous increase and growth in the population of vehicles in big cities;
- Easy availability of driving licence (reason is obvious);
- Increasing tendency of consumption of liquor while driving;
- There is pride/ego involved in fast driving of costly cars, with a sense of false status, by the children of rich people. (Refer BMW cases);
- Checking/setting and enforcing blood alcohol concentration limit for drivers with random breath testing at sobriety checkpoints;
- Speedbreakers affect traffic flow and are safety hazards, if not properly constructed;
- Speed control
- Entry restrictions
- Separate lane for bus and cycle, etc.
- The situation in respect of State roads is still worse. The private sector also needs to be involved in the maintenance of national highways/State highways.
- Octroi and sales tax barriers are to be done away with now that the VAT system has come into force in many States.
- Mobile court/mobile policing should be introduced round the clock and it should not be limited to peak hours.
- Digging of roads by various agencies like telephones/electricity/corporation causing inconvenience to roadusers.
- Driving in the wrong direction, breaching speed limits, jumping traffic lights are common violations.
- Need for recognised driving training schools
- Auto drivers/share auto drivers fleecing passengers at railway stations.
- Misbehaviour by auto/share auto drivers with poor passengers. Periodical training must be given to them by the police.
- Introduction of mini-buses.
- Steps to prohibit the use of pathways on either side of the road for running tea stalls, petty shops, vending fruits and vegetables, etc., should be implemented.
Measures to prevent road accidents may be preventive, precautionary and punitive. There is no denying that there is a need for improved road-watch, surveillance and detection, effective and holistic regulation of all kinds of traffic on the roads and proper deterrence. Roads are used not only by motorised transport but also by non-motorised transport as well as pedestrians. There is no comprehensive Central legislation to effectively and holistically regulate all kinds of traffic. The Motor Vehicles Act, 1988 is relatable to Entry 35 of the Concurrent List and the National Highways Act, 1956 is relatable to Entry 23 of the Union List. The subject matter of roads, traffic thereon, and vehicles other than mechanically propelled vehicles falls under Entry 13 of the State List and therefore, outside the purview of Parliament. The Seventh Schedule of the Constitution will be required to be amended for such comprehensive Central legislation. The Law Commission feels that there is a need for a comprehensive Central road traffic law.
As an important part of the enforcement measures, there should be compulsorily installed CCTV cameras at all vulnerable points to be determined by an expert committee to curb traffic violations.
There should be a vigorous campaign on the electronic media, including Doordarshan, All India Radio and private TV channels through regular programmes and debates, so as to create awareness among the general public of the imperative necessity to strictly follow traffic rules as well as highlight the consequences of rash and negligent driving.
As an important part of the enforcement measures, there should be established, through public-private partnership, recognised driving training schools in different parts of the country, equipped with simulators and obliged to follow properly devised driving training modules and impart training at a nominal fee.
As an important part of the enforcement measure, Rule 118 of the Motor Vehicles Rules, 1989, making it mandatory for the notified transport vehicles to be fitted with an irremovable or tamper-proof speed governor sealed with an official seal of the Transport Authority, should be enforced more vigorously. Government vehicles should not be exempted from insurance against third-party risk and Section 146 of the Motor Vehicles Act should be amended for the purpose.
(The writer is a former Judge of the Supreme Court of India, and former Chairman of the Law Commission of India. His email is: jusarlakshmanan@ gmail.com)
S ARUN MOHAN IN THE HINDU
In the 1970s, the Supreme Court of India was called upon to decide the constitutionality of Excise Rules that allowed the State of Punjab to regulate the number of days, even hours, when liquor could be sold.
In a judgment peppered with literary references, ranging from Thomas Bacon to Bernard Shaw, the court considered the adverse effects of alcoholism and ruled in favour of the State. “The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce [the] alcoholic habit,” the court wrote, rather provocatively. But the verdict, delivered by one of the most eloquent judges to grace the Bench, was neither an indictment against drinking nor a call for total prohibition. The court intended to situate the case in its socio-economic context, and embellish the legal conclusions with references to literature and even popular culture.
This is no unusual practice: some of the most celebrated judgments in India and in other countries have been richly endowed with observations from sociological studies, political treatises and economic surveys. The most powerful constitutional courts in the world, like those in India, South Africa and the United States, have often used allusions to support landmark decisions and ground them in a rights-based framework.
Therefore, it must not come as a surprise that the Supreme Court’s recent decisions in the Salwa Judum, Greater Noida land acquisition and black money matters have been infused with a liberal dose of such ingredients. Nonetheless, the Supreme Court has received flak for its observations in these cases for being “simplistic,” “too sweeping,” and rather ironically, “judgmental.” While the rhetoric has certainly soared in these decisions, to suggest that the court’s remarks in these cases are tantamount to judicial overreach is ridiculous and far-fetched.
To be sure, the Supreme Court in these verdicts has neither chastised the “neoliberal” policies of the state nor prescribed a course correction. It has merely expressed displeasure over the damaging consequences of these policies, which often result in the deprivation of constitutionally guaranteed rights. The same court that now finds itself in the dock for ideological overtures has in the past quoted Adam Smith with approval, even endorsing the free market economy.
But to construe these observations as affiliation towards a particular ideology or policy is incorrect. If the words of Joseph Conrad and Joseph Stiglitz have found their way into these judgments, it is only to underscore the point that the state’s so-called “growth-oriented” policies have led to a gradual erosion of fundamental rights. A remedy to this situation is certainly the business of the judiciary.
In Nandini Sundar, the court found that the Chhattisgarh government exercised arbitrarily, and abused its power under, the Police Act to create a militia. By outlawing Salwa Judum, the Supreme Court not only performed its fundamental duty in checking executive power but also upheld the rights of civilians. In Ram Jethmalani, the court found the state wanting in its measures to curb the exodus of black money. As with the 2002 Gujarat riots, the Supreme Court was well within its constitutionally defined parameters to appoint a Special Investigation Team when the administrative machinery had been callous or complicit. In Greater Noida Industrial Development Authority, the court quashed hasty land acquisition by the Uttar Pradesh government that violated due process. In addition to upholding the rights of farmers to their land, the court condemned the unjust enrichment of the real estate lobby facilitated through skewed policies.
To arrive at these conclusions, the court cannot, and should not, rely solely on textual interpretations of the law. The Constitution is an organic document that operates not in isolation, but in tune with the lived realities of people. As the custodian of the Constitution, it is the duty of the Supreme Court not only to invalidate any arbitrary actions of the state but also to remind the government that its policies cannot undercut guaranteed rights. The observations of the court, or obiter dicta, are by no means binding on the government, but they often serve as a compass set towards an administrative policy that is in tune with the ideals of the Constitution.