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VIEWPOINT:
REJOINDER
Forms
Of Delay
Why P.
Chidambaram's open letter on judicial reforms skirts the difficult issues
By
Arun
Jaitley
Dear
PC,
Thank
you for initiating a debate on judicial reforms through an open letter
to me ("And Justice in Time", Jan 15). To my mind, the basic
question to be addressed is: why do arrears accumulate and delay the disposal
of cases?
The real
problem isn't at the top. As on July 5, 2000 the Supreme Court had 21,600
pending cases, a drop from the 1.05 lakh pending cases 10 years ago. There
are many reasons for this. The court registry was professionalised, information
technology used to bunch similar cases and adjournments sparingly granted.
In 1999, 34,683 cases were instituted but many more were disposed of.
Unfortunately,
it is different in high courts. In 1990, there were 19 lakh pending cases;
by 2000 they had risen to 34 lakh. On an average, a high court judge deals
with 5,358 cases as against 833 cases per Supreme Court judge and 1,661
cases per subordinate court judge. Despite 647 high court judges today,
more cases are instituted in these courts each year than are disposed
of. The subordinate courts have stabilised at a disturbing figure of two
crore pending cases.
I have tried
to expedite the appointment of judges but about 180 posts are still vacant.
For more than two-thirds of these vacancies, we haven't even received
the first recommendation from the high court collegiums. The judiciary
has to initiate the process of appointment and discharge its responsibility
expeditiously. The rule book says the high court must recommend filling
a vacancy six months before it arises. This should be followed.
However,
merely appointing additional judges will not get us to the root of judicial
delay. That requires a long-term approach. I am using this opportunity
to start a debate on some measures I intend to pursue.
To begin
with, court procedures must be simplified. Amendments to the Civil Procedure
Code (CPC) have been moved in Parliament and will, hopefully, be approved
in the next session. They address various procedural bottlenecks. First,
to make the service of summons on defendants faster, the amendments provide
for use of fax, e-mail and court-approved private serving agencies. Second,
the amendments aim at hastening the recording of evidence which consumes
the longest period in civil trials. In normal course, the evidence must
be recorded in 60 days. But in high courts this could extend from five
to 10 years and in subordinate courts between two and five years. The
new CPC allows recording of evidence on affidavit and cross-examination
before a commissioner appointed by a court. Finally, the amendments limit
the time for arguments and prescribe that a judgement be delivered ordinarily
within 30 days of the hearing. If the new CPC is approved and honestly
implemented, the duration of a civil case would be compressed to one year.
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Jayanto
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Next, we
have identified several laws because of which lakhs of cases are pending.
I am in the process of making proposals for change to the ministries that
administer these laws. In a prosecution concerning dishonoured cheques
under the Negotiable Instruments Act, it takes almost a year to record
a pre-summoning evidence. I have suggested an amendment whereby a complaint
can be accompanied by an affidavit documenting all the facts. The affidavit
itself can then be treated as a pre-summoning evidence. A year's delay
can be reduced to a one-day affair. I welcome other suggestions to compress
procedures and make the system more responsive. We are examining laws
on consumer protection, land acquisition, criminal procedures, accident
claims and matrimonial maintenance to make litigation time bound.
The Department
of Company Affairs (DCA) undertook an initiative last year. Out of 5,16,100
companies registered till April 1999, 2,54,565 defaulted in filing annual
returns. Since prosecutions lead to fines, the DCA launched an amnesty
scheme which was a big success. DCA, with a budget of Rs 34 crore, collected
a Rs 495-crore revenue in six months. Over half the defaulters availed
of the amnesty by paying exemplary fines. We settled lakhs of pending
and future cases. We must identify more such laws where offences can be
compounded before amnesty schemes.
I'm willing
to amend the Legal Services Authority Act, 1987 for a mandatory pre-litigative
mechanism in public institutions. Pre-litigative conciliation by an independent
judicial appointee can reduce a lot of litigation with the government.
Another
plan is to set up five fast-track courts in each district from April 1.
The Centre will fully fund these 1,734 new courts for five years. A judicial
consensus will determine the cases to be sent to them. It would be a welcome
move if the judiciary transferred cases more than two years old to these
courts for day-to-day adjudication.
You asked
whether our Government is playing a one-day match or a five-day Test.
Governments, like batsmen, are not judged by the time at the crease but
by runs scored. There have been governments that played series after series
but couldn't score. Posterity will recognise not those who batted longer
but those who left their footprints behind.
Yours
sincerely,
Arun
(Arun
Jaitley is Union minister for law, justice and company affairs. )
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