Need of correcting our ‘Indian Legal System’?

We may very often say great things about Indian Judiciary or legal system. It is true that we have had great legal luminaries, who played a very important role in our democracy defending the Fundamental Rights of the people, expanding the scope of Part-III of Indian Constitution and who played a very important role in preserving and upholding the Constitutional Principles. People with no exposure to Courts, may appreciate our legal system and Indian Judiciary when they look at the intervention of High Courts and Supreme Courts in the matters of public importance. People may appreciate the intervention of the Supreme Court with the issue of appointment of ‘CVC’ recently and monitoring the ‘2G Case’. The exercise of jurisdiction under Article 226 and Article 32 of Constitution of India should be appreciated despite criticism and even our judiciary lays emphasis on exercising judicial restraint. While Public Interest Litigations are entertained by the Constitutional Courts in India, the common man may not have much work with the Constitutional Courts except approaching High Courts by filing Writ Petitions where there is a problem with the Government or the Government machinery. Or a common man may approach the High Court by filing traditional Writ Petitions like Habeas Corpus or may seek a direction to the Police Authorities seeking to register FIR etc.

What concerns the common man the most is the ‘Justice Delivery Mechanism’ at the lower level. We need not even discuss much about the ‘Criminal Justice Delivery Mechanism’ in this country as it is directly related to the Police Department or the State Government as most of the offences are treated ‘against the state or the society’. It is alleged that the Police Department is one of the most corrupt departments and they violate the fundamental rights of the people day-in and day-out. They can dilute charges, they can refuse to register an FIR saying that the preliminary investigation proves otherwise and they can implicate innocent people in the Crime. They will delay the filing of Charge-Sheet so as to delay the grant of Bail and if they are managed, they will instantly present the Charge-Sheet in Court without thinking too much as to whether they will be able to prove the case finally or not. These are all facts and allegations as many allege about our Police Department. As the grant of bail is the discretion of the Magistrate concerned unless the prosecution delays the filing of Charge-Sheet beyond 90 days, as the Magistrate can exercise discretion while concluding that the offence is proved or not proved ‘beyond reasonable doubt’ etc., people allege that there is corruption in the judiciary at the lower level in most of the cases and corruption at the Higher Level is also alleged. It is also true that the Police Department do face so many problems in proving a case by securing witness and many of the Criminal cases gets weakened due to the attitude of the witness though the Police are strong to prove their case. Even when it comes to Bail, if the Magistrate Court rejects the Bail, the accused can approach the District Court or the High Court and the High Courts, according to me, are lenient in granting Bails unless there is strong opposition from the prosecution. In most of the cases as I believe, the High Court may not even listen to any arguments in Bail Petitions and they will be looking at the antecedents of the accused, the section under which the accused is charged with and the objections from the prosecution. Though, there are so many issues with the ‘Criminal Justice Delivery Mechanism’, the rights of the accused are well protected under in our system in accordance with the Constitutional Principles. When it comes to ‘Criminal Justice Delivery Mechanism’, everyone is concerned at the ‘Police Department’ than the ‘judicial mechanism’ though there are serious allegations of corruption in Lower Judiciary especially when it comes to grant of ‘Bails’ and entertaining ‘Private Complaints’.

Most people are worried at the inordinate delay and technicalities in our Civil Courts. Whenever we talk of delay in Courts, we will listen to an emphasis on ‘Alternative Dispute Resolution Mechanism’. While the ‘Alternative Dispute Resolution Mechanism’ is to be encouraged, it can not be a substitute to ‘Traditional Dispute Resolution Mechanism’. If we see the logic as to why ‘Alternative Dispute Resolution Mechanism’ is encouraged, the logic is of two fold. One is that there is work pressure on our Courts and the second one is that the Arbitrator need not follow ‘Civil Procedure Code’ though he should be adhering to ‘Principles of Natural Justice’, ‘Substantive law’ and the settled legal principles. Even there are critics that injustice is being done using the provisions of ‘Arbitration and Conciliation Act’ and even the Arbitration proceedings are delayed with the attitude of the parties concerned, the lawyers, the Arbitrator and there are issues like frequently filing applications under section 34 of Arbitration & Conciliation Act. I believe that the ‘Alternative Dispute Resolution Mechanism’ through Arbitration works well if certain issues are focused and other Alternative Modes like Conciliation and Mediation succeeds based on the planning and co-operation of the parties concerned. It is also there that the dispute resolution through Arbitration is costly and it is better suited to commercial disputes.

When a common man had to approach the Civil Courts in this Country, the justice delivery process can be as follows:

1. Depending upon the stakes and capacity to pay fee, he may be able to find a good lawyer who can pursue the matter.

2. Assuming that a Civil Suit is to be presented in a Civil Court, the lawyer knows as to what happens with the registry for getting the Suit numbered and brought to Court for hearing.

3. In most of the Civil Suits, there will be Interim Applications praying for interim relief and the Court may hear the applications seeking Interim Relief ex-parte or may choose to give notice to the opposite parties.

4. There are modes as to how to give notice, but, the problem comes with the Court ordering notice without trying to find as to what happened to the notice earlier sent etc.

5. Assuming a case that the Court grants an Interim Relief in a Civil Suit, then, the opposite party can file an application seeking to ‘vacate the interim relief’ or alternatively, he may choose to challenge the interim order with the next Appellate Court if it is appellable order or may even approach the High Court under Article 227 or may file a Civil Revision Petition under the provisions of the Civil Procedure Code if the Interim Order is not an appeallable order.

6. If the Interim Order is appealed against, it is likely that the High Court may grant a stay and may keep the ‘Civil Revision Petition’ pending and in the meanwhile, the Lower Court will keep adjourning the Civil Suit saying that the ‘appeal is pending’.

7. In order to delay the process of justice delivery, any number of Interim Applications can be filed at any stage and the even judges too entertain the same. In many cases, the judges lack the required expertise in assessing the legal position quickly and the issue of competence of the lawyers is also there.

8. Against all interim orders, an appellate remedy is available and there are so many ways to delay the process of a Civil Suit. Advocates will be coming to Courts with many precedents with them and argue their case based on the interpretation of a single order/rule under Civil Procedure Code. But, the clients will be coming to courts and waiting endlessly thinking that the Court will pass orders in their favour. They will loose interest in the process slowly.

9. Court papers often go missing and the adjudication on a particular day in a particular case is not provided on-line and Lower Courts in this country are not computerized as required.

10. If anyone wants to fight with the system or corruption in the system, he can do nothing except writing a complaint to the Registrar concerned, or the Registrar of High Court and in some cases, the complaint is lodged with the Chief Justice of the concerned High Court. No legal professional dares to question the system as the official concerned will be prejudiced against that particular Advocate continually and in future.

There is no transparency, accountability and fear of action when it comes to the Lower Courts and these issues are to be addressed at any cost. If there are issues with the Higher Judiciary or the High Court, those can easily be corrected. High Courts very loosely entertain Civil Revision Petitions in a pending Civil Suit and the delay in disposal of Civil Revision Petitions will obviously delay the disposal of a Civil Suit. In many Civil Cases, the litigant dies, before the judgment comes from the Lower Court itself. Even when a particular litigant has deliberately ignored the judicial process, the Courts are lenient in entertaining applications seeking ‘condonation of delay’ in doing a particular thing by imposing a simple fine of Rs.500 etc. It is alleged that the discretion is often misused.

When it comes to High Court, it is alleged that Article 226, the discretion is often misused and there is no fear of action for misdeeds or misdemeanor with Constitutional Protection. Many Writ Petitions are simply admitted and kept pending and I don’t know as to why those Writ Petitions are pending except pleasing a particular lawyer as he should answer his client. Even when a Writ Petition can easily be disposed of at the admission stage itself, it is delayed emphasizing on procedure. Again, the ability of the advocates in assisting the Courts is also very important and Advocates play a very important role in ‘speedy justice’. Advocates are supposed to assist the judges well, but, the judges often criticize the lawyers even in open courts for their tardy work, lack of preparedness and at times, even a very talented and able young lawyer is also been criticized for some other reasons known to only judges and courts. All these are allegations and perceptions. There are really good judges and they may also do nothing with the system even if they are angry as to how the judiciary functions. I support the exercise of jurisdiction Article 226 against State and other officials and only through this, even a common man gets justice against the mighty government and government officials. On some important issues of public importance, some courageous judges take courageous decisions in Public Interest and the Government may not act in some cases due to political reasons even if they are convinced at something. This is the good thing about ‘Indian Judiciary’. On the agitation of ‘jats’ seeking reservations, no political party can take positions, but, the judiciary comes frankly in Public Interest.

While there should be talent in the legal profession, many young and able lawyers are opting out of legal profession and rather they prefer to serve only rich clients or may pursue their career by joining some corporate group. The systematic problem will have direct impact on the standards in the legal profession though the issue of standards in legal profession is to be related to the standards and functioning of our law colleges in India. Even if there is an attempt to correct the system, few people will join together and oppose that. There is an opposition to the simple move of ‘Bar Council of India’ recently for conducting an ‘eligibility test’ and even it is opposed. When few amendments are sought to be made to ‘Civil Procedure Code’, even those are opposed. Even if the Government has all the will to correct the system, it is not easy to correct the system now unless there is co-operation among State Government, the High Courts, the Supreme Court and the Central Government and the opposition parties especially.

Though everyone talk of the problems in our legal system and even great judges like Justice Krishna Iyer talks of these issues frequently, it has become very difficult to correct the system. But, a solution needs to be found otherwise, there will be revolution and lawlessness in the society. There will be reduction in crime rate if our judiciary functions as it should function.

The High Courts can do certain things by having internal guidelines, by supervising the lower judiciary and by taking steps to correct the issues at lower level. The Chief Justice of the High Court concerned and the Supreme Court should interfere when something is going wrong with any particular judge and there should not be any compromise in this regard. The Bar Council of India, the Bar Councils of State, the Law Department should think at correcting the functioning of law colleges in our Country on urgent basis. The Central Government should focus on simplifying the procedures in Courts and should deal with ‘Civil Procedure Code’ and ‘Criminal Procedure Code’. A lot of exercise is to be done as to how to correct our legal system and it is must now. Already we have seen an agitation where many pleaded that the judiciary should be under the supervision of a body called ‘Lokpal’. If there is Public pressure, even the courts can do nothing. What can Courts do when even Government could not prevent the anger? It is a wake-up call and the judiciary and the Government should be worried at the issues with our legal system and there should be sincere attempt to correct this system.

It is not enough just focusing on Constitution of ‘Fast Track Courts’, asking for guidelines for entertaining ‘Public Interest Litigations’ and the role of State Governments or the Government as a litigant. Many things should be done beyond.

I have had the privilege of reading a wonderful 14th Law Commission headed by Shri M.C.Setalvad and it is available with our Law Commission Website. In 60’s itself, there was a great emphasis on the functioning of legal system and there was focus as to how to correct our system. That report still holds good though certain new ideas can be invited now. Who can do such a great exercise now even if Government wants to appoint a ‘Committee’ to look into the action to be taken to correct our system? It may not be correct to completely rely on ‘Law Commission of India’ though it does a good job. An enthusiastic and a committed Judge should head a committee of experts to look into these issues and there should be enough funding for the Committee to carry-out their job and come-out with very specific proposals as to how to correct our legal system. Those proposals should be implemented and public supports any exercise towards correcting our legal system. A judge like Justice Sri Krishna or any retired judge should graciously take-up this marathon and complicated exercise of looking into our system and giving specific and workable solutions to the Government to reform our legal system.

If young talent is not interested in our legal system, then, it is not good for the system. These young brains should take the responsibility to the extent possible in the interest of the society and they should not compromise and sail with the existing system. Atleast they should think and should have an understanding of these important issues.

Note: the views expressed are my personal, no disrespect to any judge or court.

All India Qualifying Examination for Law Graduates - a broader view?

I am very happy to know the news that the Bar Council of India has already taken a decision to conduct an All India Qualifying Examination for law graduates for entering into profession. I don't think that there will be an illogical uproar in legal circles in India on the proposed Examination to be conducted by the Bar Council of India. Even if there is an illogical uproar, it is the time to forcibly implement the reforms at any cost as otherwise, the damage to the legal profession; legal system and the society will be irreparable. We have already seen so much damage to the dignity of legal profession in India. I don't think that the proposed Qualifying Examination will instantly ensure the standards at the Bar, but, it is just a beginning and we need to go a long way in this direction. I have also heard that the Bar Council of India has disapproved the Human Resource Ministry to conduct the examination and decided to conduct it on its own and Rain Maker is assisting the Council in this regard. It is to be seen as to how the Question Paper is prepared. It is to be seen as to whether the Qualifying Examination is conducted like another LL.b course conducted by many colleges in India barring very few and the National Law Schools. I really appreciate the efforts taken by Shri Veerappa Moily and Shri Kapil Cibal and the Government in this regard. In my view, the proposed Qualifying Examination is just a beginning in ensuring required standards in the legal profession and we need to go a very long way in this direction. The preparation of Question Paper is entrusted to eminent personalities as believe and it would be a challenging task really. The Qualifying Examination must ensure that the graduates with basic standards or required standards enter into profession. We may have to see the pattern of question paper during next December and we will definitely see the availability of many Question Banks in the Market for completing the Bar Council's Qualifying test thereafter. The Bar Council of India and the eminent preparing question paper should consider the object of the Examination and it is so important. There were two proposals in the past for ensuring truly qualified lawyers entering into profession. One is about making Apprenticeship compulsory and the second one is about Qualifying Examination. I don't think that the Apprenticeship will serve purpose logically and will achieve the objective. Many know as to how to get Apprenticeship Certificates and the fact remains that many work with some Senior Advocate initially in the profession. Qualifying Examination can really send a message to the students and the students planning to join law and it will be successful if the Qualifying Examination is such that it recognizes the graduates with basic required qualities. It is interesting to watch.

In my opinion, this is the first step in reforming our legal system. When we talk about legal system, it will comprise even the prosecution or the investing authorities. Reforming the entire legal system is a complicated exercise and it will come only with the overall development in India and when we see complete political reforms. What the regulatory bodies regulating the legal education and profession, senior advocates, responsible lawyers and the Government can do is that they can do their best to ensure quality education in all law colleges in India, can ensure recognition and encouragement to the talented new entrants in profession and in Courts. I personally believe that this is the right time to bring the required legal reforms as the Government supports the cause. I have heard Dr.Manmohan Singh showing so much concern at the legal education, legal profession and the system. I have heard Shri Kapil Cibal on reforms in education in India including legal education. Many noted lawyers of Supreme Court and in India like Shri Ram Jethmalani, Sri Kapil Cibal, Sri Arun Jaitley, Dr.Abhishek Manu Singvi and many others are playing an active role in politics. If our Senior Lawyers in India and the Senior Lawyers playing active role in politics come together to think about the legal education and reforms in legal profession, then, I am sure that we will witness the needed reforms. Our Senior and Privileged lawyers have a responsibility to the legal fraternity. We see as to how Shri Arun Jaitly is playing an active role in Delhi Cricket Association and in IPL and on the same lines, we see many Senior Lawyers in India could undertake many responsibilities simultaneous to their profession. They have a right to do so? But, when the dignity of the legal profession is in big trouble and when people start loosing faith on our legal system, then, it is a serious issue than Cricket and Politics. It is about society, people and Public Interest. I will be very happy if our Senior Advocates show some concern at the legal education, profession and needed reforms in one way or other.

I personally believe that if few of our noted lawyers come together with a clear intention to reform our legal education and profession, then, we can see the implementation of reforms within days and the influence of senior advocates in India is in public domain. It is true that the proposed Qualifying Examination will make it clear that no one will be allowed to practice law if he is not truly qualified and do not possess the basic required knowledge. It is an appreciable move and can be seen as a first step in bringing the lost dignity of the profession back. Dr.Manmohan Singh has made true remark that "when we look at experts to head our law colleges and universities, we have precious few to take". Dr.Manmohan Singh was thus stressing on imparting quality education in all law colleges in India. Thus, we need to focus on the law colleges in India and they are to be well regulated. Attendance in colleges to be strict and exemption from the attendance can not be granted easily on 'Medical Certificates'. There should be strict regulatory body to conduct serious inspections in law colleges very frequently and without prior information. If the private law colleges in India show poor strength as an excuse for not being strict on attendance of students and other issues, then, it is better to ask them to close the college itself. Again, law colleges should give the required training to the law students in the college itself through debates and Moot Courts. All this debates and Moot Courts to be video-graphed as a regulation and I don't think that it is a costly affair at all. The illogical rules regulating the law colleges are to be removed. Even if a law college do not show a certain pass percentage, it should not be taken seriously if they ensure strict regulatory compliance. By bringing very simple changes in the regulations and procedure, our entire legal education system in India, for sure, be corrected. Correcting our Court practice, dealing with the role of Bar Associations, computerization, simplifying procedures and judicial reforms is another bigger and complicated issue to concentrate. I am hopeful that the legal profession gains its lost dignity back and I feel that it will take some time to bring the required reforms and to see the results, provided we are able to see the involvement of few Senior Advocates all over India in this direction.

Note: The views expressed are my personal and I have no intention to insult anyone or the institution. My only intention and curiosity is to see betterment in legal education and legal profession.