There is need for appropriate course correction if the law should again become the saviour of the masses, says Justice Mahesh Grover in The TRIBUNE CHANDIGARH
The fading away of the First War of Independence into an inglorious chapter of a failure resulted in the process of colonisation of our country beginning with the Act of 1858, followed by Acts of 1905, 1919 and finally the Act of 1935 which laid the foundation for our Constitution. Ironically, India’s first brush of modernisation also came with colonisation. The Britishers, to suit their mode of governance, introduced and implemented laws and the systems which they were accustomed to – Judiciary with its Anglo-Saxon flavour of jurisprudence was one such mode.
A country teeming with millions of illiterate, uneducated people were subjected to laws and procedures which they did not understand. The professional class trained in legal studies was confined to a scattered few, who were also seeped in British traditions and were thus more British in habits and traits to even remotely identify with the needs of the poor, illiterate masses who knocked the doors of justice.
With the departure of the Britishers in 1947 and the introduction of a spanking new Constitution, with a complete identifiable role for the legislature, executive and judiciary, things became no different for the ignorant masses whose jousting with the laws in alien language and intricate court proceedings hostage to labyrinth of procedural laws, with the fundamental principle of jurisprudence, “Ignorance of law is no excuse to condone a lapse”, stared at them in the face.
It was thus left to courts and judges to come to the rescue of these masses. The judges were conscious of the needs of the illiterate people and were also acutely aware of the fact that availability of legal assistance was also far and in between and often too expensive for litigants.
Law necessarily is not what exists on the statute book. It exists in the realm of ambiguity and its growth essentially is more conspicuous in this area wherein the court’s contribution is paramount. A court judgement on facts in a given case if analysed in the context of another set of facts may seem conjectural, but may yet be applied, and in this situation, whether the result will be correct or not is anybody’s guess. But past decision of a court is a recognised concept of an evolving law and thus law can also be summed up as “specific past” or future judicial decisions.
The law evolved with the help of growing court decisions and from this maze emerged the concept of “substantial justice” where strict laws amenable to reason alone were interpreted and applied liberally to bend such reason in favour of the litigants, who due to their ignorance and the unprofessionalism of the lawyers, often failed to comply with procedural laws and failed to avail themselves of their remedy in time.
The Code of Civil Procedure, the law of limitation was made flexible, like the delicate bamboo shoot, to provide succour to the litigant to prevent failure of justice. A typical civil litigation would churn slowly with innumerable applications filed at various stages and the courts confronted with an obligation to decide all of them had to unwittingly put the main dispute on the backburner. The procedural exploits of the litigants aided by manipulative legal technique worked to the advantage of the litigant interested in delay while the courts, even though conscious of all this, liberally condoned lapses by wisely applying the concept that “panacea for all the ills was costs”.
Compensatory costs as a measure of “equitable justice” became an appendage of “substantial justice” though it would be a moot question whether a party offered a bounty of a few hundred rupees was willing to barter a substantial right in favour of the other. Even the state which could not plead ignorance, illiteracy, pleaded red tape in claiming for itself the equitable right and the courts bestowed upon it similar legitimacy as they did to an ordinary litigant.
In Collector, Land Acquisition, Anantnag and another versus Mst. Katiji and others (AIR 1987 SC 1353), the Supreme Court of India acknowledged that the procedure taken by the government departments often resulted in delays and chose to condone inordinate delays in filing appeals etc. in favour of state also. Some observations made in that decision are extracted below:
“The doctrine of equality before law demands that all litigants including the state as litigant are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the state is the applicant praying for condonation of delay`85The approach of the courts must be to do even-handed justice on merits in preference to the approach which scuttles a decision on merits.” A similar view was expressed by the Supreme Court in State of Haryana versus Chandra Mani and others (AIR 1996 SC 1623) and many subsequent judgements.
This raises the question: “whether the above adopted course by the courts has proved counterproductive and has acknowledged, approved and perpetuated inefficiency? And whether such a course has also contributed to the clogging of courts, caused delay in disposal of cases and aided unscrupulous and manipulative litigants or not?”
To understand, we may begin by reverting to from where we started. After Independence, as our tryst with destiny began, availability of education facilities increased. More people became aware of laws, the professional class of lawyers increased manifold even though quantity was not necessarily matched with quality. Nevertheless they understood law and provided service to the litigating class.
In this scenario, though it was desirable to tone down the liberal condonation of lapses, which the statute prohibited but courts permitted, that was not done. As a result, the litigants and the lawyers sensed in this approach an opportunity to thwart the course of justice upon which the other party had embarked. Gradually, the pendency increased and became an albatross around the neck of the system. The unwanted child was thrust into the lap of the judiciary alone and gleefully accusing fingers were pointed to it.
As the outcry increased, there was a desperate groping for the solution and measures such as increase in the strength of judges, adequate infrastructure etc. became a favourite debating exercise. Finally, welcome changes were incorporated in the Civil Procedure Code (CPC) even though given the gravity of the situation, the changes seemed only half-hearted.
Changes in the CPC are noteworthy:
- Order 8 Rule I: Written statement by the defendant within 30 days after service of summons upon him or her.
- Order 6 Rule 17: No amendment after commencement of trial.
- Order 18 Rule 4: Recording of examination-in-chief of a witness on affidavits.
- Section 89: Alternative disputes redressal mechanisms.
- Deletion of Order 18 Rule 17A: No additional evidence.
The changes in the CPC were upheld by the Supreme Court in Salem Bar Association’s case. A prominent change was taking away the power of revision under Section 115. But the courts whittled down the impact of the deletion of revisional power, and rightly so, by saying that Article 227 of the Constitution of India, which grants supervisory jurisdiction to the High Court, could be used to ensure “fairness of procedure”.
Thus, the ingenuine creation of judges’ mind meant to provide succour to an ignorant litigant has become a tool in the hands of maverick litigants and the professionals alike to subserve their Machiavellian designs. The result: greater indulgence in ignoring lapses, often attributed to lawyers, than the litigants and the same ills which were plaguing the system earlier and were the acknowledged source of delays have been perpetuated in the name of substantial justice, equitable justice, by imposition of costs as a measure of condoning such indifference to procedural law.
There has been no change in the ground situation and the wheels of justice grind slowly while the whiffs of fresh initiatives become captive to interpretation of law. And law, which once seemed to be a saviour of the masses, now seems to be an indulgent exercise to condone, acknowledge and perpetuate inefficiency and unaccountability and is proving to be defeatist to the judicial process.
Consequently, it has become counter-productive and the situation is akin to a patient who treated with antibiotics over a period of time becomes resistant to its action. It is time for appropriate course correction, at least a gentle maneuvering, to remove the tilt and make the scales even. Otherwise, the changes made by the legislature, even though half-measures, would lose their significance and the adage “Well begun is half done” may prove to be wrong.
The writer is Judge, Punjab and Haryana High Court, Chandigarh