BharatSevak2014

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BharatSevak2014

  1. 1. Citizens’ Appeal Ensuring Expeditious and Timely Justice to All FAST TRACKING JUSTICE FOR POOR LITIGANTS Team Members – Arjun Bhagi,Abhilaksh Gaind, Ishan Kashyap, Pranav Bansal and Jay Sayta Institution – TheW.B. National University of Juridical Sciences, Kolkata Degree Pursuing – B.A., LL.B. (Hons.) [4th Year/7th Semester] Team co-ordinator – Arjun Bhagi Contact details – bhagi.arjun@gmail.com, +91-9674797257
  2. 2. Identification of the Problem and Structure of our Presentation  “Justice delayed is Justice denied”. Unfortunately, Justice is not just ‘delayed’ in our country, we believe that it is ‘derailed’.  The Principle of Open Justice - The very essence of justice is that it must provide actual relief to the aggrieved:, this is the bedrock of any judicial system. In words of Lord Hewart from Rex v Sussex Justices; Ex parte McCarthy “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.  In this presentation, we identify 7 problems that are stumbling blocks in our judicial system and present 7 solutions to these problems.  Our solutions aim to bring institutional changes, rather than focusing on amendments into existing laws (which are equally good mechanisms).  The solutions presented in this paper are designed keeping in mind solely the interests of the lower starata of the society, who are the worst sufferers of a slow judicial system.  Our basic presumption is that the value and quality of justice should not be diluted or compromised with in the name of fighting a clogged justice delivery system.
  3. 3. 1. Faultily and Poorly Implemented ADR Mechanisms Issue - Alternate Dispute Resolutions (ADR) mechanisms are designed to settle disputes outside Courts. India has smart ADR legislations like Arbitration & Conciliation Act, Legal Services Authorities Act and Section 89 of Civil Procedure Code. The fundamental problem is that Courts in India are either not applying ADR mechanisms or applying them imperfectly, thereby destroying the idea behind ADR. Solution –  The Supreme Court has clarified in Afcons Infrastructure case that all civil courts are mandated to offer parties the path of ADR under Section 89 of Civil Procedure Code. Courts must explain to parties the benefits of taking up ADR mechanisms before proceeding with trial. This ensures more and more cases being disposed at the time of admission.  In many cases, ADR orders sent to Courts for validation are re-opened. This results in a re-trial and renders the ADR process redundant. Courts must desist from looking into merits of ADR orders.
  4. 4. 2. Mismanagement of Court Papers Issue – It is a daily observation for any lawyer that chaos is added in a courtroom by the excessive amounts of paperwork. Solution –  India is slowly moving to an ‘e-Courts’ system by establishing a national database. But this is a time taking process and will not necessarily cover taluka courts. In the meanwhile, Ministry of Law and Justice must financially empower the Courts in the lower rung so that they can digitize their documents for everyday functioning.  Court managers must be appointed in every courtroom. These are trained MBA professionals who specialize in cases management, case allocation, overseeing court proceedings and human resource management.They make the judicial authorities more effective.  The onus of proof in cases of loss of case documents must be that on the Court Registrar. This will enhance accountability and transperancy, thereby preventing successive re-filings of the same document which otherwise add to the burden of Courts.
  5. 5. 3. Deficient pro bono Practice Issue – BCI Rules make pro bono work by an advocate for benefit of poor litigants only a moral obligation. This often results in poor litigants giving up on their cases in middle because they can no more pay for their lawyers’ fees, resulting in ever increasing backlog of cases. Solution –  We believe that ethics and morals are no incentive for lawyers to do pro bono. Coercion is the only plausible option.  Akin to medical students, every law student in the country must be obligated to serve the lower strata of society pro bono as a pre-condition for obtaining his law degree. Though drastic, this step would mean an average of 1,50,000 lawyers (75,000 per year) at the disposal of poor litigants. These newly qualified students must be attached to Government Pleaders, so that they are constantly mentored and their inexperience does not hamper a litigant’s chances of getting justice. This is indirectly a golden chance of inducting better talent into court practices, which otherwise invariably drifts to the corporate sector.
  6. 6. 4.Agitation by Lawyers Issue – We are witnessing instances of lawyer agitation almost every other day. This is hampering normal court proceedings, thereby slowing down the pace of justice delivery. Solution –  We understand that lawyers have their right to protest against unreasonable actions of other authorities. But we are of the firm belief that this right is subject to Court’s proper functioning.  We urge amendments into BCI Rules which will permit lawyers’ demonstrations only on weekends, court holidays and evenings.  The local bar council members must be made accountable for any strike by lawyers, irrespective of it being supported or not by the concerned bar council. These members must be immediately arrested.  Young advocates, who do not have much work in courts, are persuaded by Unions to stage protests on trivial issues. Senior Counsels must take upon themselves to hire more and more young advocates as their juniors, so that they do not become part of such unproductive activities.
  7. 7. 5. FillingVacancies for Courts and Tribunals Issue – One of the important reasons for case backlogs is the deficiency of judicial officers manning the courtrooms. Solution –  Direct recruitment from reputed national law schools must be conducted for filling vacant posts of judges on ad hoc basis. This is a temporary solution, in light of the fact that it takes 2 years for state public commissions to select judges for lower judiciary. In that period, these direct recruits may be subjected to sternous training and attached to District Judges. A second round of internal selection may be conducted later on to make them permanent.  Though specialized tribunals do not cater to the lower strata, they must be manned on priority basis. In situations of such tribunals being improperly manned, the concerned litigants approach appellate courts like High Courts and Supreem Court. Such proceedings then eat into the time alloted to regular cases filed by poor people in these appellate courts. Judicial appointments in theseTribunals must be made a priority.
  8. 8. 6. Special Benches to Deal with Matters Filed by BPL Plaintiffs Issue – Why should cases affecting poor people be clubbed with other complex matters? Solution –  We suggest that Courts at District, State and National level must designate special benches for dealing with cases filed by BPL (Below Poverty Line) plaintiffs. This mechanism invariably creates an environment wherein the judges are sensitive to the conditions of the plaintiff and their verdicts have an enhanced flavour of equity.  This special bench must be given extraordinary powers to direct investigative authorities to take a more focused approach towards these BPL plaintiffs, allocate special funds to cater to the transportation and accomodation needs of these BPL litigants who come from far off places and allocate pro bono cases to senior advocates when such special need arises.  Creating a dedicated bench for BPL litigants will also prevent sidetracking of their cases on account of non-availability of lawyers, funds, red tapism, etc.
  9. 9. 7. Corporate Social Responsibility & Courts Issue - Functioning of Courts in India is purely dependent on the funds provided by the Executive. This results in red tapism and slow diversion of funds, thereby hampering efficiency of normal day to day court proceedings. Solution –  We propose that Corporate players be roped in to pump in a minimal percentage of their Corporate Social Responsibility (CSR) funds [as proposed by the Companies Act, 2013] into justice delivery system. This amount, to be calculated by the Ministry of Law and Justice, must be credited directly in the bank accounts maintained by the Supreme Court of India, which shall disburse the sum accordingly to lower courts. Concentration of funds must be greater for lower courts located in north-eastern states and other backward regions, SC/ST Courts and Family Courts.
  10. 10. Concluding Remarks India is marred by a corrupt government that has made a joke out of its subjects: the Courts have been the only ray of hope for millions of poor Indians in these tough times. These turbulent times call for a more robust judicial system, and the suggestions proposed by us are only a few steps in the long journey towards establishing an efficient, responsive, resilient and sensitive Indian judicial system which delivers cost-effective and timely justice to all. JAI HIND !

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