Deliberating on the need for initiating legal reforms in infrastructure, experts from the industry and legal profession are and have always been unequivocal on the need for a clearly defined legal and regulatory framework to improve the infrastructure sector in India. The prevailing system of administration of justice has, over the years, proved to be inadequate, for various reasons. On the theoretical plank it gives rise to certain fundamental jurisprudential issues, e.g. the adequacy and efficacy of the present adversary or accusatory system, and the damning dominance of form and procedure in the justice delivery process.
Apart from such basic issues, the system faces a grave crisis of notorious delays, procedural pitfalls and the credibility of the process and personnel involved: the judges, the lawyers and the ministerial apparatus. The experiments like Loknyayalaya and mediation-conciliation cannot claim to be the substitutes for the system. At best, they can be alleviating factors to help the harassed litigant.
India’s legal and judicial systems are highly sophisticated and well developed. Despite that, it has not kept pace with the changing needs arising from increasing population, increase in number of laws, increase in industrial activities and other changes resulting in inordinate delays in disposal of cases.
The present system owes its existence to the colonial rule. Since its inadequacy is thoroughly exposed, now is the time to go into the fundamental question of its compatibility with the Ethos of this country. Today, we find a dichotomy between the real ‘Truth’ and the ‘Truth as stated on Oath in a Court’. A litigant gets away with this in the present system. If the system is made inquisitory and the burden is on the authority to find the truth, truth will come out and the battle between assertions and denials ends. The old Nyaya Panchayat system needs to be revived and supported. For the purpose, an inquiry of the system that was in vogue in ancient-India is useful.
The backlog of millions of cases in all categories of courts is the most damning evidence of the inadequacy of the apparatus. Urgent resolution of the problems pertaining to all the factors must be sought within a time frame.
The number of judges reflects no reasonable equation with the growing population and litigation. Adequate funds, infrastructure and political will are necessary to provide for additional law courts and judges to match the pending and future litigation. The conditions of service should be such as would attract talent and ensure integrity. Training / workshop may help even the High Court judges.
The lawyers have a significant role. Their training in law as well as professional ethic is thoroughly inadequate. Law as a profession has deteriorated. Concrete steps are necessary to stem the rot and to lead a new path.
Efficient Administration and organization of the docket in courts would be able to avoid thoroughly unnecessary procedural delay. A little imagination and a pragmatic (as against the dogmatic) approach can lessen the burden on courts and litigants.
The procedure is termed as the ‘handmaid’ but in practice it rules. Drastic changes in the procedures to be followed in courts are urgently warranted. Every case must reach a time bound destination. The system today has developed a vested interest in delay. If necessary it should be dismantled without remorse.
Justice delivery system, particularly in criminal court needs complete review. The present system punishes the innocent and permits the criminal to go unpunished. Drastic changes in procedure are necessary.
By Hemant Batra, Lead Partner, Kaden Boriss Legal LLP, India; Vice President, SAARCLAW; Chairperson, IICLAM, Singapore; Advisory Board Member, OIC, USA