Justice barred

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

RD SHARMA IN THE TRIBUNE

Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.

Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.

According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.

The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.

TOO FEW JUDGES

Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.

Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.

In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.

If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.

SPEED UP SELECTION

The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.

Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.

Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.

UNSCRUPULOUS LITIGATION

Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.

Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.

Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.

AIM FOR CONCILIATION

The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.

However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.

The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court

SOURCE : http://www.tribuneindia.com/2012/20120313/edit.htm#6

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Effective and Easily Accessible Mechanisms to Redress Consumers Grievances

Prof. K.V. Thomas, Minister of Consumer Affairs, Food & Public Distribution has asked the States to ensure effective and easily accessible mechanisms to redress grievances of the consumers as in a highly competitive market like ours protection of consumer interests becomes a moral responsibility of the State. He was addressing a meeting of state secretaries in-charge of consumer affairs and presidents of the state commissions here today. Following is the full text of his address-

I have great pleasure in welcoming all of you to this meeting to elicit your valued opinions and suggestions on issues concerning consumer protection. This meeting is being held on the eve of the World Consumer Rights Day on 15th March, when the Ministry of Consumer Affairs, Food & Public Distribution, in association with the National Consumer Disputes Redressal Commission, is organising a Conference of Ministers/Secretaries of States and UTs in-charge of consumer affairs. Today’s meeting, I am sure, will help us understand first-hand the problems and challenges that we face in the area of consumer protection and the problems which different States/UTs face in effective implementation of the programmes of this Department so that these can be deliberated upon in detail at the Conference tomorrow.

I would like to begin by stressing on one important point – that of ‘consumer protection,’ as a significant issue contributing to the economic growth of a country. A market that is highly competitive is of utmost importance for the healthy growth of economy and is beneficial to the consumer in that the consumer has a wide variety of products to choose from. It can also not be denied that such a competitive market in a fast developing country like ours is also prone to spurious goods and inferior services entering the market place to cheat the unsuspecting and ill-informed consumers. Therefore, protection of consumer interests becomes a moral responsibility of the State. This can only be accomplished through setting up quality specifications and safety compliances for goods and services and by establishing proper, effective and easily accessible mechanisms to redress grievances of the consumer.

The Consumer Protection (CP) Act has been in force for the last 25 years. The Act has enabled setting up of three-tier quasi-judicial bodies from the district level to the national level. The CP Act is a comprehensive piece of legislation. Unfortunately, it is found to be weighed down by issues like inordinate delays in the delivery of justice, ineffective enforcement of judgment orders, etc. This is really a cause of concern not just for the consumers but for the Government too. I would like to mention some of these concerns, which have been engaging our attention.

The first and the foremost one, and I regret to say this, is that most of the State Governments do not evince keen enthusiasm and attention in implementing the provisions of the Consumer Protection Act promptly;

The consumer forums are found to be becoming and acting like civil courts with Presidents of the forums adopting a more formal approach to the issues on hand; for example, the issue of complainants being asked to engage lawyers to fight their cases, even where there is no need for that;
Adjournment of cases are given without valid reasons leading to inordinate delays in the justice delivery system;

The disposal of complaints within the stipulated time-frame of 90 days to 120 days is not strictly adhered to;

In many States/UTs consumer fora are found to be functioning in rented buildings with inadequate space and office equipment. Such States/UTS can avail themselves of the benefit of the Scheme of the Department of Consumer Affairs that provide grant for construction of their own buildings to house consumer forums;

The responsibility for setting up the State Consumer Protection Councils (SCPCs) & District Consumer Protection Councils (DCPCs) rests with the State Governments. It is a matter of serious concern that some States have not yet set up such Councils; and
Finally, the importance of filling up of vacancies of President and Members in the Commissions and District Fora of States well in time to boost consumer confidence.

Having mentioned some specific concerns, let me come to certain general issues affecting the consumer protection system as it exists now: I have been given to understand that very few or no complaints are being filed in relation to unfair trade practices, misleading advertisements, etc. It is absolutely essential that we know the reasons for the consumer not coming forward to lodge his complaints; not just that, we must encourage him to fearlessly engage the infrastructure that we put in place to get his grievances redressed. Otherwise, all our efforts will go waste resulting in nullifying the reliefs provided by the Third Amendment to the CP Act. Here, the role of State governments assumes significance especially in view of absence of suo moto powers of the consumer fora.

Coming to the issue of State Consumer Help-lines, 25 States have so far availed funds for the Help-lines. I would like to take this opportunity to request those States/UTs which have not done so far to submit their proposals to avail funds for Help-lines. This Department has also developed a new IT platform under an Indo-German project and all the States/UTs have been asked to utilize the software as a common platform for the Help-lines. This is offered free of cost. A National Nodal Centre which works as a knowledge management portal for State Help-lines has also been set up at the Indian Institute of Public Administration, New Delhi to coordinate and network the State Help-lines. The IIPA is also organising training for the Help-line personnel and I would urge upon the States/UTs to send their staff operating the Help-line to undergo the training available.

The Department, under Package Commodity Rules 2011, is going to propose that a marking “GM” should appear on packages containing genetically-modified food items for information of consumers. I would like to get the response of the States to this proposal.

The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 empowers the Central and State Governments to detain persons whose activities are found to be prejudicial to the maintenance of supply of essential commodities to the community. While detentions are made by the States/UTs in selective cases to prevent hoarding and black-marketing of the essential commodities, it has been found that many States are not enforcing the provisions of the Act in the strictest sense; even those States which are enforcing it are not giving information on such cases to this Department within the prescribed time – the end result being that the detainees get released and go scot-free for want of evidence, and strictures ultimately being passed on the Government by the Hon’ble High Courts.

Laws are compilation of rules and regulations by a sovereign authority. But effectiveness of laws depends on how well and strictly they are enforced. Only collective efforts can produce the desired results. I am sure, with your cooperation, we can succeed in putting in place a vibrant consumer protection system in the country which, no doubt, will ultimately lead to the economic development of the country. Needless to say, your valuable views and suggestions to help the consumer protection mechanism as it exists today becoming even more efficient are eagerly looked forward to in the course of our deliberations.