The Honourable Chief Justice of India, Shri Ranjan Gogoi, began his tenure as Chief Justice on an excellent note. He flagged the issue of mentioning of cases before the Chief Justice to get urgent hearing and disallowed stating that a system is being worked out to in the Supreme Court to list cases based on their filing date.
Welcome step by the new CJI
This is an excellent and welcome step. We should appreciate that. I always hold this view that biggest injustice is being perpetuated through this mentioning system, by virtue of which while about 50000 cases pending in the apex court gets adding on with long waiting periods and ever exploding dockets in the Court. Senior lawyers are able to muscle their cases to get priority hearing. More so in the recent past, if the trend is any indicator, the case of Urban Naxals getting relief within a day had set the cat amongst the pigeons.
Imposition of fees and charges
Indeed, in case this mentioning system is to be sustained it should be on a more objective criteria. Since the time of the Supreme Court is a critical resource in the justice delivery system, I would suggest imposing exemplary fees/charges to be paid by the litigant to be allowed into the mentioning list itself.
Why not keep the fees at Rs 10,000 to begin with? This will enable some check on the tendency of lawyers and litigants to get priority hearing of their respective cases over the pending ones, and hence perpetuating the injustice to the waiting litigants as well as mitigating the docket explosion. Further, the likes of the Yakub Memon case, which gets mentioned in the middle of the night, the fees could be much higher. Similarly, the system could also prescribe a fees of high value for cases to be brought before the vacation judge.
Also in the other courts
Having said that, this vice of mentioning and priority hearings is not limited to the apex court alone. Hence, any such imposition of the fees should be perpetuated to the judiciary below the Supreme Court, like the High Courts and the lower judiciary also. By this we can certainly address the issue of pendency in court cases.
User charges
In this context, it is a matter of record that the government is mulling over imposition of user charges for services, which were generally deemed as gratis services. This has already been put in place in the health sector in some form. In the education sector, the private institutions have already taken over. In other infrastructure, like roads, we have the toll charges. Water, Electricity and piped gas are billed as per the consumption level. It is therefore important that we introduce a kind of fees or user charges for getting priority hearings.
Fees/fines and charges in courts
At the same time, it is not the mentioning alone which is the malaise contributing to pendency of cases and docket explosion. There are many other factors. Take for example adjournments. Many times, adjournments are sought and granted because one of the leading lawyers is not prepared. I do not discourage this. But his non-preparation adds up to the pendency and pressure on the courts. An adjournment charge should be imposed on such cases, so that this trend is discouraged overwhelmingly. In addition, the other party should be compensated with appropriate costs. This is in the discretion of the presiding judges, who are reluctant to invoke their discretion. These costs should be brought in the relevant court rules.
Similarly, is the trend of pass overs. At times, on the pretext that the leading advocate is engaged in some other court, there is a tendency of deputing a junior lawyer to seek pass over. A modest fee of may be Rs 500 should be imposed. An enabling provision should be made in the relevant Court Rules.
Mediation and other alternative methods
It is further a fact that most cases are resolvable through dialogue between the parties. An enabling provision empowering the courts to refer the parties, with their respective consents, is available in the Civil Procedure Code. Many Honourable Judges also are in favour. But at times the litigants do not cooperate.
In this context, in one of my interaction with a former Chief Justice of India, during an informal meeting, I threw open this. At that time he was the incumbent Chief Justice of India. He immediately responded, that he would welcome that. But in India most people litigate for their (in chaste Tamil, he said meesai) moustaches, meaning self-respect or esteem.
In case a lawyer, when approached, finding no merit in the case tenders honest advice, he will have to wind up his practice. So, the common recourse lawyers take is advising the litigant that the case in contestable. These are words of wisdom from a very excellent, erudite Chief Justice of India.
Hence, there should be a fee imposed on litigants for refusing any of the Alternative Dispute Mechanism reference by the courts, using their powers as well as failure of the parties to reach any settlement in mediation, as my good learned friend and excellent mediator at the Delhi Mediation Centre repeatedly has to record.
Explosion to grow
We have to appreciate the gravity of the situation. Already the dockets are exploding. We have an elaborate procedure of recruitment of judges with a lead time of one year. Further, the resources in terms of other infrastructure cannot be provisioned with the speed even if we get the judges.
Hence, supply management of resources is constrained. At the same time, with growing education, the tendency for assertion of rights whether real or illusory is expected to increase with its attendant aggregation to the problem of docket explosion. The Honourable Chief Justice has shown the path. Others have to follow it. One way is to control the demands on these resources. Let's begin.
State funds or Court replenishment Fund
All such fees collected should be accrued in the Consolidated Fund of India or the respective states, as the case may be. Or, it can collected in an escrow account for re-investment into the judicial system of the country, calling it a cess instead of user charges, fine or fees.
It is possible that if these suggestions are factored into the relevant rules of the Court will go a long way in mitigating the endless wait for justice by litigants as well as resolving the issue of docket explosion in the courts in this country.
(RVS Mani is a former Central government officer who shot to prominence as a whistleblower in 2009, when he alleged he had been forced to sign documents that fabricated a narrative of 'Saffron Terror'. His book, 'Hindu Terror: Insider Account of Ministry of Home Affairs', was released recently.)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)