Book extract: Solution?
Excerpts from the concluding chapter of Courting Injustice by Rajesh Talwar
A prominent national daily recently reported on how ‘at a time when people are getting impatient with judicial delays, the Supreme Court has stepped in to curb the tendency of trial courts to liberally grant adjournments at the instance of lawyers’. The court expressed its ‘anguish, agony and concern over adjournments granted by a Punjab trial court in a bride burning case which stretched the process of examination of witnesses to more than two years’.
Referring to Section 309 of the CrPC, the bench said that once a case reached the stage of examination of witnesses, the law mandated that ‘it shall be continued from day-to-day until all witnesses in attendance have been examined. The section provides that if for some unavoidable reason the court was to grant adjournment, it must record its reasons in writing’.
The next day’s editorials in several newspapers lauded the judgment. While I don’t disagree with the judge’s remarks, I have serious reservations about applauding though. Why? That old proverb about the pot calling the kettle black or about how people who live in glass houses ought not to throw stones at others. After all the Supreme Court itself all too often spends an inordinate amount of time sitting on civil and criminal appeals, sometimes even stretching into a decade before rendering final judgment.
It is true, what the Supreme Court observed, trial courts do grant unnecessary adjournments far too often but at the same time, does the apex court not appreciate the pressures on these trial courts to deal with an overwhelmingly huge backlog of cases? Before each trial court judge there are scores of lawyers and hundreds, if not thousands, of cases competing for his attention.That’s only one reason for not cheering. The other one is that does the Supreme Court reflect often enough on the delays that it causes?
Why not Special Rape Courts?
Galanter doesn’t think much of the move towards informalism and having special courts. Yes, we could have special rape courts or even crimes against women courts all across the country. It is not likely to help very much. See what happened with the special courts established with respect to the Bhopal gas tragedy victims. Tribunalisation is at best a palliative and a temporary one at that. They help because the judges learn to specialize and become more efficient as a matter of course, but the solution is really to have more judges. And then we can really move forward. It is astonishing to see the level of fatalism that has afflicted the higher judiciary. Even the Verma Committee Report doesn’t really go into the issue of ‘justice delayed is justice denied’. It is almost as if the committee has already come to the conclusion that nothing can be done.
A Historic Blunder in Manpower Planning
In a ‘scarcity’ economy such as ours, judicial time cannot perhaps be an exception. Yet the terrible truth is that along with incredible poverty and scarcity, criminal wastage of resources, especially in manpower planning can be witnessed. Historically, we have overstaffed our banks, bureaucracies and public sector units. The Narasimham Committee Report on Banking Sector Reforms reported on how our nationalized banks were overstaffed at all levels. The great irony and tragedy is that we have simultaneously kept an undersized judiciary, numerically incapable of coming to grips with the volume of litigation and we have continued this grievous error for decades. ... India’s judge-population ratio is amongst the lowest in the world, which is the single biggest reason for delays in the disposal of court cases.
The Good News: We are NOT Incompetent
The good news here is that it is not true that we are the laziest people on the planet or the most inefficient. Our judges work very hard. Our Supreme Court judges work incredibly hard and produce a huge volume of judgments every year — the number has almost doubled although the judges have not. Let us not belittle the efforts of our trial court judges either, for they too work very hard and often under oppressive conditions. ... We simply have too few people trying to accomplish too large a task.
Reducing Appeals and Simplifying Rules
Parliament must enact laws simplifying the existing cumbersome and time-consuming civil and criminal court procedure to the extent possible. Legal procedures today are unbelievably complicated and beyond the comprehension of an untrained legal mind. Although these procedures have been framed with the idea of removing arbitrariness and improving the quality of justice, they generally prove too time-consuming and are eventually counterproductive.
The Time Has Come
I believe that India is changing. It will no longer ‘be business as usual’ for much longer. And there will soon be justice for Nirbhaya. Our ‘braveheart’ will also bring justice to all her sisters. And possibly to the rest of us as well!
Excerpted with permissions from Hay House. The book is marketed and sold in India by Penguin Books India. Rs 399. Rajesh Talwar has practised law for many years, taught, and has been working for the United Nations in various countries. He writes fiction and non-fiction.