Position of our legal system and its harsh realities
Whenever the term court is heard by a common man, a terrific feeling and an awe starts revolving in his/her mind. It is a well-known old saying in India, that a family will be ruined financially if they are dealing with persons in the white or black coat. This simply means the systems in district courts have a bad reputation in the public at large. Whenever anyone visit the lower court in one’s district, they will be met with poor infrastructure, even no proper arrangements for lawyers. Here, we will scroll throughout the court and try to find out the extent of application of codified laws and how far the lawyers and judges effect that. We will also try to unearth the harsh realities that we generally ignore like Perjury business, lost of trust in the proceeding etc. We will also analyze the poverty of our legal system, i.e. why is it still far away from an advanced legal system like in developed countries. This work will not merely be a critic, but after close and careful analysis valuable suggestions and possible recommendations will be listed to eradicate the shortcomings and make the situation much better for public. The arrangement of the court is complex one and often one type of court carries on the function of other court. It is very important to understand the composition and working of court as prescribed. Any District Court has three major organs.
For civil court, there is: District Judge, sub judge, munsif, small causes court.
For criminal courts: District Judge and District and Session judge, 1st class magistrate, 2nd class magistrate, Executive magistrate.
For Revenue court: Board of revenue, commissioner, collector, Tehsildar and Asst. Tehsildar.
Extent of application of codified laws
(a) Role of Police and FIR:
Whenever any offense is committed, the first step taken by any person in general is, rush to the police station, from where the setback arises. By chance if any common man who has no influence or is not a big personality rush to lodge a FIR, he is generally refused. Or the question is raised about the jurisdiction of the police station. Clearly violating sec-154 of cr.p.c, they do so in order to conceal the rise in crime within their jurisdiction. Sometime complaints are fobbed off by police with a copy of non-cognizable report. There exist several occasions where the case is recorded by the police as an “intimation” to parties and huge amount of money is recovered from them for the settlement of the matter. Police is often not serious in relation to investigation of crime. As per the experience of those who have spent years in jail and having criminal background, the police is provided ‘cess’ weekly or monthly to make oneself or the entire network free to involve in all types of activities. ‘Police manual’ is not observed strictly, the provision to place the accused within 24 hours of arrest to the nearest magistrate as per Article-22(2) of the Constitution of India is violated cleverly by not mentioning the exact time of arrest in police diary.
(b) Dramatic role of lawyer’s influence and personality of offender:
The next step after police, is to deal with lawyers through whom case is to be filed. But the situation is, where the plaintiff has obtained ‘interim’ or ‘ad interim’ relief, he is naturally interested in delaying the proceedings so that stay or injunction is continued as far as possible. Similarly, where the defendant has no defense, he is naturally interested in prolonging the trail with a view to put off the evil day as long as possible.
It is the ingenuity of the advocates in taking advantages of the technicalities which helps defendants in such cases. Lawyers are also known to apply for frequent adjournments on flimsy grounds. When a particular ground, such as his sickness or personal problem, is advanced by the advocate, it is usually not possible for a judge to examine whether the ground is genuine or not and it is in the fitness of things that he should normally accept as true what an advocate says. Reputed figures and persons with heavy personality often get leniency in their favour.
(c) Non-observation of few provisions of procedural law:
While dealing with police and lawyers in court, the other existing reality founded is that some provisions of procedural laws are not followed. After filing a complaint, the process fee is not paid for a long time so that summons to the defendant is not served in time. After a defendant makes his appearance, his advocate often seeks long adjournments to file the written statement. After the pleadings are closed, there comes the stage of producing documentary evidence at this stage. Little use is made of the provisions for discovery and inspection of documents and for serving interrogatories. If these provisions are properly used, the controversy between the parties can often be narrowed before the parties go to trial. However, what usually happens is that when the suit comes to the trail, the advocates sit down in the court, open their briefs, probably for the first time, and begin laboriously to prepare lists of documents, etc. All the while the poor judge sits idly on the Bench, helplessly looking on. Non observation of sec-173(4) of cr.p.c on right time is generally seen, which requires the police to furnish the accused with copy of police papers.
There are few harsh realities in court that is generally known to everyone, but they are continuously being ignored. Some of them are:
(A) Consequence of Complain cases – Mushrooming Of Perjury Business:
Complaint cases (C.R) require that if any complain is made by a party to the court, then the Magistrate has to do the inquiry as per Chapter-XV of Cr.P.C., 1973. For which witnesses are examined to verify that complain. And it is common knowledge that very few members of the public who are present at the scene of occurrence are willing to come forward to depose in courts because of long waiting for evidence to be recorded, adjournments on flimsy ground, brow beating of genuine witnesses by overzealous defence lawyers and inadequate compensation for the loss of day’s earnings. As a result witnesses are hired for some consideration and made them to speak as per the party’s wishes. And the reality is that perjury business is flourishing in district courts in full swing. It has also been observed that some complaint cases are filed as per conspiracy against the other party simply to defame them, as a vexation or to satisfy the vengeance by utilising the hired witnesses.
(B) In relation to bail:
One other serious issue is related to bail. That is often termed as anti-poor provision. The term ‘Bail’ has not been defined in the Criminal Procedure Court 1973. But it classifies bailable and non-bailable offences. ‘Bail’ refers to release of person charged with an offence, on providing a security that will ensure his presence before court or any other authority whenever required. Provisions related to bail are inscribed under Sec. 436-450 of CrPC. The issue regarding bail is that it requires bail-bond. i.e. some amount or consideration in return of release.
To prevent the person from absconding, to prevent the person from further committing a crime, etc. Most of the time the amount of bail-bond is much higher which poor and destitute cannot afford. As a result they have to spend years in jail despite the provision of bail. When a person is accused of a non-bailable offence, his release on bail leaves wider scope for exercise of judicial discretion keeping in view the gravity of offences, the nature of evidence on which the prosecution case rests, and reasonable possibility of presence of accused or suspect during trial. The approach of judges in the exercise of their discretion in bail proceedings have been criticised by the Supreme court in several cases. Realising the fact that only non-poor are being benefited. Justice Krishn Iyer In the case of State of Rajasthan v. Balchand – “System of pecuniary bail has a tradition behind it, a time for rethinking has come…. Undertaking would serve the purpose.”
In the case of Menka Gandhi v. Union of India- Justice Krishna Iyer and Justice P.N. Bhagwati also consider the present trend as unfair practice.
(C) Competency of judges is in question:
In relation to judges often the question is asked by common people that-why do judges allow lawyers to take advantage of procedural technicalities and prolong litigation? why don’t they judge immediately after realising the true fact? The answer is that judges often show themselves unable to exercise sufficient control over proceedings being conducted before them. The judges in our country have a reputation for honesty and integrity. But that is not enough. It is unfortunate fact that, owing to a variety of circumstances, this is not the place to go into them: judges are not drawn from the most talented members of the Bar.
The result is that those who are much junior in practice find themselves appointed as judge and quite often they are not able to control senior members of the Bar. They lack the experience and maturity required of a judge. Their grasp of law and fact leaves much to be desired. They are unable to impress senior members of the Bar who often possess much stronger personalities than the judges. They tend to avoid “heavy matters”. Senior advocates know very well that when they apply adjournment in a “heavy matter”, the judge is sure to grant it, though after making a great show of being inconvenience and lecturing the advocate about the matter being old. Often the judge has not read papers at home and when an advocate cites ruling after ruling, the judge gets lost and the hearing becomes very lengthy. If the judge is well-versed in law and is quick to grasp facts, he can immediately pull up the advocate and cut short irrelevant arguments. Mere increase in the number of judges will not solve the problem.
Justice must be cheap and expeditious. However, in order to provide cheap and expeditious justice, it is necessary to appoint competent judges. But the present emoluments of the judges are so meagre that they do not attract competent people to the Bench. If society wants cheap and expeditious justice, it must bear the expense of competent judges. The principle that “Justice must be cheap but judges expensive” is, though universally recognised, never acted upon.
(d) The common people are losing confidence in proceeding:
The alarming situation is that people deny trust in proceedings. Delay in disposal of case threatens justice. The lapse of time blurs truth, weakens memory of witnesses and makes presentation of evidence difficult. This leads to loss of public confidence in the judicial process which in itself is a threat to Rule of Law and consequently to the Democracy.
In pleading, they (lawyers) studiously avoid entering into the merits of the cause; but are loud, violent and tedious in dwelling upon all circumstances which are not to the purpose… they never desire to know what claim or title my adversary hath to my cow, but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she were milked at home or abroad; what diseases she is subject to; and the like; after which they consult the precedents, adjourn the cause from time to time, and in ten, twenty or thirty years come to an issue.
Jonathan Swift in his famous work Gulliver’s Travels
It is likewise to be observed that this society hath a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written; which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood; of right and wrong; so that it will take thirty years to decide whether the field, left by my ancestors for six generations, belong to me or to a stranger three hundred miles off.
Position of our Legal System
After more than 60 years of independence, our legal system has still not achieved much advancement. Still our legal system is far behind the system of USA, UK, etc. Our courts are seen as helpless regarding the matter of corruption, piling of cases, matter of under-trials etc. As per Supreme Court data (as on April 1, 2014):
Cases brought forward
District and sub-ordinate court(criminal)
District and sub-ordinate court(civil + criminal)
Recently, former CJI H.L. Dattu stated that nearly 3 crores cases are pending across the country in the year 2015.
In our courts often the question on transparency is raised, it is also said forcefully that the present system is on British pattern that was based on British mindset. Where there is a gap between judges and common people, the judges do not interact with the common man, unaware about the harshness that a common man is undergoing.
Still the development and understanding of law is poor. There is least development of torts. Even in the 21st century, our treatment to law is “As a mechanism to resolve dispute, rather than a mechanism that takes notice, eradicate evils and makes life smoother“.
Conclusion and Suggestions:
Most of the realities encountered here are known to the authority but are continuously being ignored. Through this paper some practicable suggestions are being provided to eradicate the presently existing evils. For making a control over judges and also to make them more efficient. There should be annual audit of the entire Lower Court. That will reveal the competency of judges and will also tell the tale of corruption. The statement of witnesses recorded by Magistrates and Judges in lower courts should be done by some writer appointed in the court.
For more efficient administration the police should be made extra efficient, quick in response everywhere –for representing the government in courts, for producing evidences etc. Their work should be excluded from investigation, and that task should be dealt by investigative agencies in each state. The role of police should be related to only documentation, filing of cases, charge sheet etc. But matter of investigation and examination should be under the guidance of investigative agencies
To get rid of the ulcer of “approach and influence” of lawyers and offenders, the seniority trend should be abolished because it only act as a license to demand huge sums from the client. There must be provisions, prohibiting the close attachment of lawyers and judges informally. Most of the time the offenders get benefited through the leniency of judges that has been realised in-Malimath committee report.
In relation to non observation of provisions of procedural law-There is one provision, which, if used effectively by courts, can help to cut short the litigation. Order 10 Rule 2 of civil procedure code, provides that at the first hearing of the suit, the court
(a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in court, as it deems fit; and
(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in court or his pleader is accompanied.
Thus, this provision casts a duty on the court to examine the parties orally before settling the issues. In practice, however, this provision is simply ignored and issues are in variably raised from the pleadings of the parties. If judge examines the parties orally, it is quite likely that many a time the truth will come out immediately in spite of what is stated in the pleadings. This will obviate the need for examining numerous witnesses on either side on a point of disputed fact.
The judge has wide discretion in awarding the sentence within the statutory limits .There is now no guidance to the judge in regard to selecting the most appropriate sentence in the given circumstances of case. Some judges are lenient and some are harsh .Exercise of unguided discretion is not good even if it is the judge that exercises the discretion .In some countries, guidance regarding sentencing option is given in the penal code and sentencing guidelines law. There is need for such law in our country to minimise uncertainty in the matter of awarding sentence to the accused person
Malimath committee report
For evil of perjury business- through technical advancement of courts it can be washed out. The judge should use saved data in the computer immediately before the examination of witness to verify the credibility of that person.
The lower courts should be made technically advance. Latest and modern technologies, must be utilised. The E-court mission of government should be implemented for all types of courts, specially the lower courts. Adjudication through special process like fast-track courts should be promoted. The people can get early adjudication through non technical method, homely methods, by using lok adalats.
When the plight and misery increases due to the trial, instead of relief, the people become irritated, become wilder and deny any type of trust in proceeding .that wilderness may force them to opt for short-cut methods in their life that may become a threat to the nation .The situation need immediate and constructive action .It is argued that the prolong demand of making the courts time bound must be accepted. There should be a time frame in which the court has to adjudicate the matter. That time frame should be different for different types of cases.
When the plight and misery increases due to the never-ending trial, trust in proceeding is lost. That wilderness may force a lot of them to opt for methods that may become a threat to our nation. This situation needs immediate and constructive action.
MD Minhaj uddin
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