Legal profession has in the past been considered as a noble profession where public spirited persons may serve those who need the support of the judiciary for relief when they were victims of some contravention of law. It was therefore natural for people like Mahatma Gandhi take to public service after being in the profession of a lawyer. Even today you occassionally see some persons take up public cause with a passion that makes the profession proud. Dr Subramanya Swamy’s efforts in recent times which unearthed the 2G scam is an example of such tenacious fight for principles undertaken by a legal professional.

It is therefore heartening to note that bright young people are showing some interest in the profession as is indicated by the response to the competitive examination, CLAT 2011 which determines the qualifiers to enter into the prestigious National Law Schools. It is found that students as bright as those who get into the more glamorous engineering or medical  streams get into National Law Schools and study law. This is good for the profession since the quality of lawyers in the country can improve.

However it is found that most of the National Law School graduates fail to enter into practice in the Courts of law in India. They either go abroad or join the corporate world and end up advising companies on how to manage law for business gains. In the process the noble profession of lawyers is losing sheen.

While one of the reasons why young talented persons get attracted to corporate jobs is better monetary prospects and comfortable perks, the way our legal practice runs today is also a reason why the youngsters are not keen to practice.

Today’s practice in Courts is dominated by those lawyers who are not interested in letting the Courts work and move towards resolution of disputes. They are more interested in prolonging the disputes and exhausting the genuine justice seeker. Hence they are only interested in getting adjournments on one ground or the other. Their skills are limited to this field and intellectuals find it difficult to survive in this atmosphere.

Some monied clients hire a lawyer  today not for his capacity to argue on legal points and win the case but for his ability to ensure that the case can be endlessly adjourned so that the beneficiary of a contravention can delay return of the illegal benefits gained. Hopefully the opponent would be so tiered after some time that he may lose interest in the case and absorb the losses suffered.

If today Indian judicial system particularly the Civil judiciary is not respected by litigants, the reason for that is the enormous delays that are caused in the legal proceedings. There was a time when people would respect the words “God sees the truth but waits”. But today public are not interested in God who is slow in delivering justice. “Justice delayed is justice denied” is a more contemporary axiom.

In one of the recent hearings before a special judicial forum, I was shocked to listen to an advocate who was proudly telling the forum that she was just coming out of a case which was started before she was born and she could not understand why the judge of the special judicial forum was keen on completing the proceedings quickly. When pointed out that the law requires the forum to come to a judgment within a specified period, she was nonchalantly stating that there are several laws like that in the Country and no body bothers about the time limit.

To top it all the advocate raised it as a matter of a ground for appeal in a higher Court that the lower court judge was keen on completing the proceedings quickly and that was a procedural irregularity!

This reflects the state of affairs in civil courts and how some of the advocates take pride in delaying things for no specific reason but to inflict a greater financial damage to the victims. Such advocates bring disrepute to the community of legal professionals and hinder any positive development in the judicial system.

In order to prolong the proceedings in a Court, unscrupulous advocates also use certain provisions of CPC to their advantage. to the extent CPC has become the biggest stumbling  block for reducing the delays in Courts.

The Government of India and higher echelons of Judiciary have recognized these issues and have tried to

a) Introduce alternate dispute resolution methods

b) Free some of the special judicial forums such as the adjudicator under ITA 2000 and the Cyber Appellate Tribunal from beign bound by Civil Procedure Code

c) Indicate time limits for the special forums to complete their proceedings

d) Allowing non advocates from assisting the litigants to present their cases for adjudication under the principles of natural justice

e) Changing the traditional laws to make it difficult to get adjournments on flimsy grounds and to make the party seeking frivolous adjournments pay for the cost of alternate hearings.

Unfortunately however, these reforms are being challenged by that part of the lawyer community who have a vested interest in maintaining the inefficiency of the system.

The solution to the problem lies as much in correcting the attitude of the advocates who pray for adjournments instead of arguments but also in the judges changing their attitude and being less considerate of the requests for adjournments.

Today judges in most Courts are so habituated to adjournments that a request for adjournment is seen as very natural. Any opposition is seen as a favour to the party praying for quick redressal. Even when a counsel asks for an “Adjournment for personal reasons”, it is treated with respect without considering that accepting the request of one party for adjournment is an injustice meted out to the other party.

As a result of this lenient tendency of judges, some advocates play one court against the other by bringing in frivolous appeals, miscellaneous applications, civil revision petitions etc knowing fully well that  though the application may not be maintainable when argued they are good enough to get  relief for a few months.

In deference to the procedures, an application even if supported by false averments is often admitted for hearing and in most of such admissions, an interim order is also passed as prayed for by the complainant. The defendant is told that this is not a final order and only an interim order until the case is heard out. Unfortunately the case is not heard expeditiously and even adjournments are granted in such cases some times for long periods making the interim order stay operative as a temporary relief. An application which ought to be dismissed at the admission level therefore becomes a tool of temporary relief to one of the offending party.

While the judges have the power to correct the injustice done through such false and frivolous applications by awarding exemplary compensations, few judges feel the necessity for such decisions which could eventually dis-incentivise seeking of adjournments on unscrupulous grounds.

It is also found in some cases that advocates have jumped from one court to another on frivolous jurisdiction and procedure related objections only to prevent the lower court from proceeding with its functioning. It is strange that some times even a judge who wants to improve the system is sought to be restrained by the higher court on unsustainable grounds.

A time has come therefore for the attention of the Government to be drawn to this problem and solution found before the little respect still available to the lower judiciary is lost.

The solution should start with a debate in all Courts and probably an attitudinal training of the judicial officers to change their present attitude of granting  easy adjournments. Courts are meant to adjudicate and not to adjourn should be a principle which should be guiding them at all points of time. Adjournments should be on genuine grounds and for short duration only. If the grounds for adjournment are not forceful, the cost of adjournment as a matter of routine should be boarne by the party asking for the adjournment.

If in the long run the system has to improve, then it should be ensured that all special judicial forums (civil dispute resolution forums) are provided a freedom to fix their own procedures under the principles of natural justice and not be bound by CPC.

Subject matter experts who can throw light on facts and legal issues rather than beat around the bush with procedural issues must be encouraged to assist these judicial forums so that the forums may move towards quick judgements rather than keep adjourning the matter.

While the intention of making bar experience a necessary factor for a judicial appointment has its merits, there is also merit in the argument that it would be better to have direct judicial appointments from those who have not become addicted to the current practices in the Courts which are aimed at defeating an honest and efficient judicial system.

Though this has been a subject matter of many discussions in law commission reports in the past, where direct recruitment of judicial officers is done, it is restricted to persons who have been practicing advocates only.  It is time to revisit this criteria and deliberate if we need to create a “Judicial Cadre” exclusive of an  “Advocate Career”.

Already the several judicial forums such as DRT system and Sec 138 (NI Act) systems who were supposed to be fast court systems have been effectively degenerated into a normal court process where the average litigation period is several times more than the statutory intention. Consumer Courts are following the same course.

The current target of unscrupulous lawyers is the Cyber Judiciary system under ITA 2000/8 where the Adjudication cum Cyber Appellate Tribunal system is envisaged as a process which should not take more than 1 year.  Lawyers who are entering the litigation in these courts are in the process of vitiating the processes so that “Delays” are the order of the day.

If this trend is not stopped, the future of Cyber Judiciary in India is bleak. If Adjudication and Cyber Appellate Tribunals are not expected to be different from the civil courts, the Government may as well close the adjudication and Cyber Appellate systems and place the jurisdiction back on the civil courts.

In this context, I would like to request National Law Schools to debate the feasibility of providing a special Judiciary Course to prepare direct Judicial officers. This could be an extended 5 year judicial training to its law graduates where the students pursue a course in Judiciary spending time with judges in several courts as their assistants.  We will then have young junior judges at the age of 30. Like young IAS and IPS officers who are often found to have a special commitment to their duties, we may then have a cadre of young IJS officers who may be open to reforms more than those who have been part of the system during their formative years and are affected by “Role set” problems. If a 30 year old IAS officer can function as a district collector with lots of judicial responsibilities there is no reason to doubt the feasibility of a 30 year old non advocate judicial officer discharging his duty as expected under the constitution. He would be free from the influence of the current practices in the Court and can bring real reforms which people may appreciate.

I would be happy if National Law Schools can come up with other suggestions to ensure that the functioning of special judicial forums are not derailed from the principles set out in the specific statutes creating them. Public should also join in this debate.

Naavi

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