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Lawyer's Side
The charismatic senior lawyer, Arvind P Datar, spoke to V Pattabhi Ram on a range of issues relating to judicial reforms. In one sense, it represents the laywers’ side of the story.

IE: There is a huge backlog of pending cases in various courts. Is there a solution to clear this backlog?

Arvind P Datar(AD):  The type of cases pending in different courts is vastly different.   While the Bombay High Court may have a huge backlog of commercial and tax cases, the High Courts of Chattisgarh or Jharkhand may have a substantial amount of litigation in mining disputes.   Thus, it is important to tailor the solutions to meet  specific problems in each state.   Unfortunately, short-term solutions  like creation of fast track courts and mega Lok Adalats are inadequate to deal with this problem.  

The solution will have to be as follows:

•    We should study how judicial time is spent.   In the lower courts,  only a few hours are spent on conducting trial and a lot of time is wasted in calling and adjourning  them.   All work that does not contribute to the disposal of cases should be outsourced.   We can employ retired magistrates or civil judges to deal with pre-trial work.   The judges should conduct trial work for at least 5-6 hours per day.

•    We should see whether we can filter cases.  For example, only cases above Rs 10 lakh be included under section 138 of Negotiable Instruments Act relating to cheque bouncing.   This will filter a large number of cases in the criminal courts.

•    Let’s also amend the procedures.  For  example: much time spent in chief examination and cross-examination can either be significantly reduced if cases are decided on the basis of documents.   Like: Cheque bouncing cases can often be resolved by documents and there is no need to have elaborate evidence from parties, including bank managers.

•    We must club cases involving common questions of law to reduce the arrears. Computer technology can play a very useful role in this.

IE: Should there be a statutory time limit on delivering the judgment and completion of trial?  Can appeals be restricted? Is it time that the system fixes statutory maximum adjournment limits?

AD: A statutory time limit will not help unless it is strictly followed. However, at the High Court level, judges must accept the responsibility of delivering judgments within 30 to 60 days. It is also advisable that a judge should not be allotted work if the number of cases for judgment is accumulated substantially. For example, if a judge has more than ten cases wherein judgments are pending, the Chief Justice should  not allot work to him till the backlog is reduced to a prescribed level.   

Restriction of appeals is not the solution. Sometimes, judgments of lower courts are seriously erroneous and restricting the appeals will result in failure of  justice.  As a thumb rule, two appeals can be provided.

It is also not possible to fix maximum adjournment limits.  Very often, cases are posted on a particular date but are not taken up for hearing on that day even though the lawyers are ready. Therefore, it is wrong to blame only the advocates for adjournments.

IE:  Do you think that the collegium system is a fair system of appointment of judges? Most appointments are mired in controversy.  Is it time that collegium system be changed?

AD: The collegium system has not been transparent and has been criticised  even by senior Supreme Court judges who were part of  the collegium.  There is no explanation as to why a particular candidate is chosen as a High  Court judge.  Further, there is an unwritten rule of ensuring representation on the basis of religion,  caste, gender and so on.   The foundation of  our  judicial system requires that  the  best candidates alone are appointed. If the clear intention is to appoint the best possible candidates for judicial office, it does not matter whether we adopt the collegium system or have a judicial appointment scheme.   The problem comes when  the interest of the institution is sacrificed at the altar of vested interests, personal prejudices and so on.     

However, in my opinion, it is not necessary to change the collegium system.   The defects in the collegium system can be rectified by setting out norms  and having a more transparent system of appointment.

IE: How can we speed up filling of vacancies of judges in both lower and upper courts?

AD: Generally, the number of vacancies is known well in advance and with proper planning, it can be ensured that vacancies   are filled  promptly.  

IE: Government has been setting up many special courts, fast track courts to speed up criminal cases. Are they a good way forward?

AD: I have been informed that  Fast Track Courts have expedited the disposal of old cases.  At the same time, such courts are only temporary solutions.   In fact, they are an acknowledgement  that the ordinary courts are not  capable of  dealing with cases promptly. In the long run, an ideal system should be one where a case is disposed off within two years from the date of its filing.  If the time for disposal is reduced, more number of people will come to court.

IE: Should the number of judges be increased per court?

AD: I am against increasing the number of judges in the High Courts or Supreme Court when we are unable to fill up existing vacancies.   Mere increase in quantity will not help in clearing the backlog.   What is more important is the quality of judges. Five competent judges will dispose more cases than 20 judges who do not have the necessary competence. In the end, it is extremely important to select outstanding lawyers and district judges to adorn the High Courts in various  states.

IE: Should courts go en masse on vacation? Can courts not work in multiple shifts? Can’t we add more judges?

AD: There is no reason to have all the judges going on vacation for four to six weeks, particularly when the arrears are staggering. We can have a reduced work load in summer and judges can take two weeks leave in rotation during the holidays. Another option is to group together batches of cases, post the same and dispose them during the vacation. For example, cases pending before a Full Bench can be disposed off in the vacation.

IE: Your thoughts on corruption in judiciary and how it can be curtailed?

AD: The only way to curtail corruption in the judiciary is to ensure that excellent candidates with unimpeachable integrity are selected. It is also necessary to ensure that judges are given an excellent compensation package with necessary perquisites.   Corruption in pre-independent India was unknown simply because the salaries were so high that there was no need to indulge in financial malpractice.

IE: Does discussion of case in the TV not lead to influencing judges and witnesses?

AD: Yes, it does. If a case has received adverse publicity, public opinion is whipped up against the accused and this could influence a judge. With so much adverse publicity, there is likely to be a reluctance to acquit the accused. There is too much of sweeping conclusions put forth in TV channels without fully appreciating the facts of the case.   The recent allegation against the officials of IOA during the Commonwealth Games in Glasgow is a case in point.  It later turned out that the police had to close the cases for lack of evidence.   Meanwhile, every channel pronounced the officials guilty using the expression “shame game.”

IE: Any other point that you wish to add?

AD: The most important task is to ensure that the judicial output of each judge is doubled or tripled, especially in the subordinate judiciary. In the near future, it is impossible to double the number of judges. The only way to dispose cases is to ensure that a judge disposes twice the number of case than he presently does.

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