Thursday, November 22, 2012

Hands-off Justice Delivery

An earlier post on Disincentives to Bad Litigation.

There are various models of justice dispensation.  India, like many modern states, has adopted the Adversarial System.  If one files a suit or a complaint, the court allows the warring parties to argue and the judge finally decides based on the merits of the arguments.

Unfortunately in India, due to the already strained system of law and other historical-cultural factors (more on this later), the judiciary has misused this principle to epic proportions.  It is the norm, and not the exception, for judges to NOT read the petition or an application and decide on an issue.  The norm is for the courts to ask someone: "So what do you have to say about this?"

If you submit an application, or a complaint, to the court, the court will check it for technical correctness (court fee, the margin being wide enough, double spaced typing, and so on) and issue "notice" to the "respondents".  It will not verify, except if the respondents are biggies, if the petition has any worthwhile content.  The "maintainability" of a petition is in most cases limited to checking its legal maintainability (for example, whether a bail application in the High Court has earlier been filed in the Sessions court), not whether its content makes any sense.

So, here's what happens in Indian courts:  A person is aggrieved.  He wants to petition the court.  For technical and legal correctness (the rules of which are labyrinthine and sometimes even anecdotal, instead of formalized), he has to engage a practicing lawyer.  The lawyer files the petition.  The court "admits" it.  Almost universally, the court then sends "notice" to the respondents named in the petition without so much as looking at what the petition contains.

The respondents then file a reply.  The court then asks the petitioner to file a "rejoinder".  Then, if one is lucky, in a few years the lawyers get a few minutes to convince the judge to read a few choice sentences or paragraphs of the hundreds if not thousands of pages in the case file.  The judge decides the case, and then later writes a judgment in which the large mass of the writing is to paraphrase what each party has argued, and in the end give a one or two line judgment.  Most of the judgments of lower Indian courts end with this statement: "I find no weight in the arguments of the respondent hence the petition is allowed," or "The petition is without merit.  Dismissed.  No order as to costs."

Alas, even this is an ideal scenario.  Most cases get a bunch of intermediary applications (IA) arguing one little technical point or the other.  Again, a notice is issued to the "respondent" to reply to the application.

I think this can justly be called "hand-off justice delivery".  The judges don't read anything on their own.  The judges only sit and listen and read when the lawyer asks them to go to page x, para y.  The lawyer presents the case law (selectively of course).  The judges are sometimes surprised to learn of a certain historical case, but they in no event will thumb the case law themselves to figure out the history or current status.

The judges are not interested, and nor have the time for, reading the petitions and applications.  They do not have the time to go through case law.  That job, and bread-and-butter, is for the lawyer community and the clerks and the typists.

I know an Indian lawyer whose modus operandi is only far too common, unfortunately.  Suppose he is engaged by a defender to respond to a petition.  Before responding to each point, he asks his clerk to type a response denying each and every sentence in the original petition.  "It is wrong and denied that x.  It is wrong and denied that y."  The "x" and "y" are taken verbatim from the original petition.  The substantive rebuttals can wait.

I repeat, the judges don't read the petitions but routinely shift the burden of the work to the respondents.  Even for applications whose illogic or conclusion is obvious, a few months have to pass necessarily because of the to-and-fro between the lawyers: Notice, Time to file reply, Reply, Time to file rejoinder, Rejoinder.

And obviously, there is generally no cost imposed for filing frivolous IAs.  Because "frivolity" is not for the judge to judge.  How can the judge decide on the frivolity of the application if he doesn't even read it?

This kind of charade in the courts suited the British well.  After all, why bother with listening to or reading of the arguments of a slavish and illiterate and smelly and emotional populace?  The judges listened only to the big-shot lawyers, who spoke in British English and usually got their training in London.  It was all good fun.

Judges and Lawyers formed a fraternity in that era.  And that continues to this day in India.

In the Supreme Court of India, I know for a fact that on a "date" when the judge is supposed to give a reasoned order or instruction about the case, thick files dense with documents and arguments are thumped to the other side without so much as a glance at their contents.  Some curt order is given granting more time to the respondents or suchlike.  Hearings on a thick file sometimes last 2 minutes.

The judges do not bother themselves with the details of the case or even of reading through the basic prayers  in the application (prayer = what is being asked for) asked for before issuing "notice".  It is probably too much work for them.  Let the respondents, and the lawyers that they engage, worry about the prayers.

If you get an unassertive lawyer who doesn't know how to outshout his opponent and make the judge read the relevant parts of your supposedly well-reasoned arguments, you will not get justice in India.

In the same vein, if someone counts (for Indian courts) the pages of documents unread by anyone except by the writer, that astronomical number will raise the very Gods from their slumber.


Jogeshwar said...

I guess now I know how? I always wondered how a Judge in a high court was able to listen to 200 - 250 cases in one day i.e. till 3 pm. I was reasoned that they are able to go through cases so swiftly because they have read the petition before.I think it is not possible to read so many petitions before hand. Also judges are given cases based on their area of expertise, for example a lawyer who used to practice land matters and is elevated to a judge is given cases related to that only. Some lawyers wait for the roster to change so as to be heard by a judge who they think will favour them. Lawyers file the petition on time but themselves get their petition objected so as to delay the case for hearing without time barring it. The provision of caveat also wastes unnecessary time. Then if you win or lose a case in high court you the the option to file LPA, the gets reheard by a division bench, so winning a case once isn't enough. Canny lawyers charge fee each time an application is to be filed to make/add changes in the petition. Also it is the typist of judges that usually type most of the judgement and the judge has to add little to a judgement. As a result powerful people accustomed to system of justice dispensation in India, prefer to get things done without having to go to court, they maintain an army of goons to settle their disputes quickly or use bribery.

MuktaSunit said...

Someone forwarded your blog. I read a few articles and I am now hooked - subscribed to your blog entries.

Thank you for laying out the nature of the beast. We all know the judicial system is dysfunctional; the phrases "travesty of justice" are commonly used in the Indian context. But not very often does one get to read about the actual working - or lack thereof.

Question : Is there any canonical reading about Judicial Reforms that you can recommend ? Any online references might help. Thank you.

zrini (srini, ஸ்ரீநி, வாசு, சீனு, சீனி etc.) said...

Amazing critique.. you are doing a great service.. thanks. I suppose things are not as bad in other places, though all the overpopulated third world must be fated more or less similar?

Anonymous said...

A depressing rendering of the sad reality that is the judicial system in India.

Play angry Birds said...

Nice post..really informative blog..

Suhas said...

You are simply Brilliant Harminder, keep doing the good work