The frequent recommendation of alternative methods of dispute resolution by courts limits the effectiveness of the legal system and results in ‘second hand’ justice
Dr. Bhim Rao Ambedkar had cautioned us in his speech on November 4, 1948, delivered in the Constituent Assembly that: “The form of the administration must be appropriate to and in the same sense as the form of the Constitution ... [It] is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution … Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.”
It has been 65 years since independence, and we are yet to learn the true meaning of constitutional morality, and to develop the inherent natural tendency to repel any attempt by anybody to obfuscate the spirit of the Constitution.
Given that the ability to approach courts for successful adjudication of claims is a necessary corollary of the culture of legality, the ineffectiveness of the judicial system has given rise to an alternative sub-culture, which is nourished by delays and corruption in the judicial and administrative systems. The judicial system today faces an existential crisis which is manufactured by the very same actors who are responsible for ensuring that standards are maintained in the system.
Adjudication of claims is of transcendent importance to people because through it, they are assured that the rights guaranteed to them would be given effect to. In order to have an effective judicial system, it is absolutely imperative that the constituent units of the system are worked upon simultaneously rather than sequentially, with individual attention to each such unit. It would be too naïve to ignore the psychology of judges, lawyers and litigants as essential constituent of the judicial system.
Despite the present state of affairs, people believe that courts will interpret, develop and apply the law by involving various constituents of the justice delivery systems in order to dispense ‘justice’ that gives the judicial system its utility and justification and enables a person to eke accountability. ‘Alternatives’ to the court systems (such as tribunals and regulatory bodies) have been devised by governments of the day because these allow them to escape difficult questions and diffuse them in various tribunals. It allows them to surreptitiously corrupt the form of the administration of justice without corrupting the spirit of the Constitution.
While we may deploy the language of justice in a discourse asking for judicial and legal reforms, there is rarely a mechanism that is actually available to the government and the judiciary to receive feedback or do what could be called “a performance review”. Limited feedback is taken from the judges and bar associations, and litigants have no say in the administrative policies of the courts — even though they are the recipients of ‘justice’. There is an illegitimate conspiracy of silence. I, therefore, recommend that the Indian must have a “National Judicial Commission for Performance & Audit of the Judicial System” under the Constitution which aids the High Courts. A judicial commission without any mechanism for receiving “feedback” would be an inchoate legislation.
Some people, especially those within the system, have argued that fixation of targets of cases to be disposed of and review of judgments in grant of promotion are methods that could be considered as sufficient check on the judges. I do not think that fixing of targets to be met by judicial officers is a mechanism of monitoring; in fact, I regard fixation of targets as anathema to the justice dispensation system. One cannot measure the success of a judge by the number of cases he has disposed of. Even fixation of targets for subordinate judiciary is an exercise that conceptually forms a roadblock in access to justice, and perhaps forms one of the reasons why courts are mandating that parties resort to alternative methods of dispute resolution (ADR).
I consider the court-mandated resort to ADR as one of the factors that limits the effectiveness of the judicial system. Dispute resolution by way of ADR mechanism should be resorted to by disputing parties of their own accord, and I consider it a failure of the judicial system when a person is compelled, either by the court or by the state of affairs that prevails in the judicial system, to choose such alternative methods of dispute resolution. I cannot discountenance that there is inherent value and idealism in resolution of disputes through negotiations, mediation or even arbitration, but I consider the burgeoning of ADR as symptomatic of lack of effectiveness of the judicial system.
The language of rights and entitlement is typically alien to mediation proceedings, thus, one has to necessarily barter his rights during the mediation to buy what is perceived as “peace of mind”. Lawyers are found to concede to court’s suggestions to mediation in order to hold the court in their favour. In fact, a party who refuses to settle fears a risk of negativity from the court, even if the law is with him.
The promotion of ADR and private means of dispute resolution to hastily divert litigation away from the court minimises the obligation of the state to spend on providing infrastructure for the courts, and thus it is not surprising that ADR also finds favour from the government. In fact, it is a myth to consider that ADR works on its own. The truth is ADR works because of the ‘threat’ of the court process.
It is improper for the courts to shy away from adjudicating, and look at ADR. It is the duty of the courts to adjudicate; if there is a shortage of judges the judiciary must demand more judges. A person must not be compelled to be content with ‘second hand justice’ merely because the number of judges is not sufficient. The judiciary has to take responsibility for adjudication of all the claims in this country.
It is necessary that there must be an independent evaluation of infrastructure required for the judiciary. A special budget for the judiciary must be voted in Parliament. The utilisation of such monies can be undertaken by the judiciary with trained personnel from the office of the Comptroller & Auditor General.
The resort to tribunals and regulators on the ground of domain expertise is an overstated argument. In fact, the clock needs to be turned fully. The regulator must not denude the executive to take responsibility for policy making, while the tribunals must not be the harbinger of retiring judges.
To insulate the judiciary from any deviation from ‘the Restatement of Values of Judicial Life,’ it is necessary that judges receive their last drawn full salary as pension till their demise. They must be truly advised, and more expanded interpretation must be given to Article 124 (7) of the Constitution so that the opinions of retired judges do not become wagons of credibility.
Undoubtedly, the National Judicial Commission for Performance & Audit of the Judicial System must also audit the functioning and effectiveness of the entire judiciary. The judiciary is one. All courts are constitutional courts. Even subordinate courts can be empowered by law to issue writs under Article 32(3) of the Constitution. Thus, there should be a trilateral judiciary not based on the hierarchy of power.
There is a necessity to constantly remind ourselves of the principle of constitutional morality which requires constant expiation of perversions that we introduce into the Constitution. The judicial system is the system of last resort, and it is therefore, judges’ primary duty to ensure that they are able to effectively vindicate the litigants’ rights.
(The writer is a former Solicitor General of India and former Chairman, Bar Council of India)