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Updated: May 1, 2013 01:51 IST

When judges don’t adjudicate enough

Gopal Subramanium
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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.

Sub-culture

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.

Buying ‘peace’

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)

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The author is either biased against ADR or has not understood its true meaning and purpose or feels it is a threat to the legal profession. Lawyers are not supposed to be involved in ADR. It is the parties that sit together and decide on a mutually acceptable solution. ADR can result in parties agreeing that there is no mutually acceptable solution and that the dispute must be decided by a Court. The Government and Courts should in fact promote ADR as the first course of action towards dispute resolution. One, two or three day paid classes can be held by ADR professionals to teach people the fundamentals of ADR and concepts like ZOPA (Zone Of Possible Agreements), BATNA, etc.

from:  Samir Mehta
Posted on: May 2, 2013 at 14:00 IST

Thank you so much for such an article. To an outsider, ADR may appear to be an efficient mechanism designed to reduce the burden on courts. In reality, it is one of the most preferred methods used by builders and unscrupulous entities, the reason being there lies no appeal against an arbitration. As has rightly been pointed out in the article, the litigants save themselves from the labyrinth and accept arbitration.
One has only to look at the provisions of Arbitration & Conciliation Act, 1996 to find out what the author means by second hand justice.

from:  Amjad Imam
Posted on: May 1, 2013 at 19:29 IST

Seeing the current scenario of the tussle between the Judiciary and
Executive in Indian government, I feel that the suggestions and
remedies given by writer are too idealistic, whereas the concept of
ADR mechanism og resolving disputes through mutual understanding and
settlement is a practical solution available to the Litigants to
resolves their civil disputes and claims against opposite party. ADR
mechanism is indeed effective remedy available to the government and
judiciary to reduce te burden and disposal of pending cases in the
long run. However, it is very much important to device effective tools
and tecniques and efficient manpower in the matters of negotiation and
arbitrations. In a civil dispute parties are fighting for their claims
and many times such claims can be resolved tactfully by just sitting
on a table and discussing the interests of both parties. An efficient
Negotiator or Arbitrator can definitely try to balance the interests
of both the parties andarriveatasolution

from:  Sumeet Jal
Posted on: May 1, 2013 at 15:59 IST

The author has given nice suggestions for reforms in the judiciary. Better infrastructure, commissions auditing the performances are good ideas. But, the proposal that retired judges should get their last drawn salary as pension is unfair. If this is the policy, then firstly, government has to bear extra cost and secondly, it should be uniform for all services. Why single out judiciary for such benefits?
Yes, one reason for courts to resort to ADR is reducing number of pending cases. The author strikes a note of caution that ADR should not become excuses for the executive's failure to provide necessary judicial infrastructure. But, the point of judges not adjudicating enough is flawed in my limited understanding. If litigants cant find solutions through ADR then the courts do take p the cases for hearing. So, justice is done. So, one cannot blame the judiciary of taking short cuts. ADR is a prudent tool till judicial infrastructure is adequate.

from:  Mukut Ray
Posted on: May 1, 2013 at 11:22 IST

Fully agreed that there is a "illegitimate conspiracy of silence" on reform and audit of judiciary by the corrupt politicians with the self serving interest of their ilk in mind. India and Indians definitely deserve "first hand justice" and the self-serving politico-class is no one to decide to deny this to us.
Excellent writing for making us - Indians - think on one of the scourges we are unnecessarily carrying for the more than 65 years.

from:  Rahul
Posted on: May 1, 2013 at 11:14 IST

Alternative Dispute Resolution is not so frustrating as it as been made by fixing targets for subordinate Judiciary and also lack of knowledge regarding the rights of the parties (common man) to seek justice. It is unfortunate that our Judiciary and its administration is so neglected by our parliament (Politicians) in our country where the Judiciary is considered as the “Protector of our Constitution”. It is high time not only to educate people about the Judicial system and its function but also to educate Judges by providing proper and frequent training as to how use their Judicial and discretionary power conferred under the Constitution of India.

from:  Shobha.S
Posted on: May 1, 2013 at 11:08 IST

Thought-provoking piece of writing rather an eye-opener.Though ADR is considered as most effective,alternate mechanism and an efficient substitute and has really delivered and lessened the burden of courts but there is need to go into its base and guage the nature of justice emanating from it.From litigant perspective,ADR is another name for efficacious remedy - no protractive litigation,less costs,less time and quick justice.But at the end of the day if we would analyse the nature of justice,it seems only substitute of justice rather 'mechanical justice' delivered where litigant always nods his head for everything asked by authority as he has no other option but to avail of this opportunity in 'last resort'.Though,ADR has sort of supplemented courts and has become an efficient delivery system but instead of investing on these ad-on's,more apt would be to make courts more efficient by staffing them with more judges if there is paucity so that 'real justice' is ensured.Because at the end of the day as the author rightly puts it that we don't have any 'feedback' system - through which we could know the satisfaction of litigants - who are actual recipients.Recommendation of Commission is worthwhile and should be considered.

from:  Shayesta Nazir
Posted on: May 1, 2013 at 10:03 IST

The article by Gopal Subramanyam Solicitor General of India and former Chairman, Bar Council of India has rightly expressed his views for the need for massive expansion of judiciary. The so called alternative method of arbitration is not giving justice and forces to accept via media under frustration. The need of the country is massive expansion of judiciary considering the backlog of cases and growth of cases and expansion of judiciary with all infrastructure. When politicians, parties and cases are growing why judiciary is not allowed to grow. Due to restriction of growth defaulters and cheats have audacity to increase their own growth at the cost of honest people. Massive expansion of judiciary is the need of the hour.

from:  B S GANESH
Posted on: May 1, 2013 at 08:47 IST
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