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The adjournment ailment
Written By murali772 - 24 January, 2013
Bangalore law and order Media Reports judiciary Justice Praja RAAG
The Supreme Court on Wednesday said delay in dispensation of justice could well be attributed to the judiciary's almost institutionalized generosity in granting adjournment of hearings and called for its complete abolition.
"The lavishness with which adjournments are granted is not an ailment exclusive to narcotics (case) trials; courts at every level suffer from this predicament. The institutionalization of generous dispensation of adjournments is exploited to prolong trials for varied considerations," said a bench of Justices D K Jain and J S Khehar in its judgment in a case relating to delay in disposing cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
The court unabashedly said, "Such a practice deserves complete abolishment." It found that the legislature had enacted a crucial amendment in the form of fourth proviso to Section 309(2) of the Criminal Procedure Code, 1973, to tackle the problem, but lamented that it awaits notification for more than three years.
- - - "Therefore, this court directs the concerned courts to adopt the method of 'sessions trials' and assign block dates for examination of witnesses...This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which he is liberated from his civil duties qua a particular case," the bench said.
For the full text of the report in the ToI, click here.
This is about the most serious of causes leading to the notorious kinds of delays in the delivery of justice in the country as a whole. I have personally experienced this in the following two cases:
1) where a Bangalore City Civil Court took 5 yrs and 10 months to decide on what in legal terms is referred to as an "open & shut" case (pertaining to recovery of a substantial sum of money), and, with the defendant company, based in Kolkatta, not taking cognisance of the order, I am now pursuing an Execution case in Kolkatta, where the situation is just as bad.
The situation is so bad that the general talk in business circles is that if you want to avoid or delay paying your dues, the simple thing to do is to get your creditor to file a case against you. This has led to the creation of an industry which uses strong-arm tactics to get the money for you.
2) a criminal case under Sec 332 (IPC - voluntarily causing hurt to deter public servant from his duty) against somebody closely known, where the matter has dragged on for over 5 years, with the end still far from sight. The resulting frustration for the person concerned is to be experienced to be believed.
In both the cases, the number of adjournments granted by the courts, for the most frivolous of reasons, would normally be seen as scandalous except for those who have got inured to the goings on.
What is most shocking is that all that is awaiting the implemention of a Supreme court order, abolishing the practice of liberal granting of adjournments, is the notification of an enabling amendment passed by the legislature over three years back.
It is perhaps time the Civil Society collectively pursued this matter on a most urgent footing.
We, from PRAJA-RAAG, had in our submission to the Justice Verma panel (check here), highlighted the matter of delays in the delivery of justice, and suggested besides a) Publishing of progress of cases, with brief notes, on court web-sites, and b) Appointment of 'professional court managers', in order to allow the judges to concentrate on just the judicial matters.
From PRAJA-RAAG's side, we will be making suitable representations to the government and judiciary, on the matter of adjournments also, soon.
Muralidhar Rao
COMMENTS
n - 24 January, 2013 - 16:37
is the notification of an enabling amendment passed by the legislature over three years back
Was curious about this so started digging a little bit. Page 7 of the CPC Amendent Act states that
(b) in sub-section (2), after the third proviso and before Explanation 1, the following proviso shall be inserted, namely:—
“Provided also that—
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.”.
Some interesting amendments like (page 3):
41B. Procedure of arrest and duties of officer making arrest. — Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
Good amendment.
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
More paperwork?
Anyway, the steps to notify it in the gazette are below.
Notifying the rules etc. in the gazette
11.4 After the rules, etc., are finalised, steps will be taken by the department concerned to publish them in the gazette and, where the Act provides for it, to lay them on the Table of each House. The procedure to be followed in this regard has been described in para 11.5.
Laying of rules etc. on the Table of each House
11.5.1 After publication, the rules, etc., will be laid on the Table of the House as soon as possible and, in any case, within a period of 15 days (30 days in case of notifications relating to a state under the President’s rule), reckoned from:
PRO 6.15
(a) the date of their publication in the official gazette if the House is in session; or
PRO 6.15
(b) the date of commencement of the next session, if the House is not in session.11.9.2 Where it is proposed to amend the rules on the basis of the recommendations of the committee, the department concerned will take steps to amend the rules, notify the amended rules, etc., in the official gazette and to lay them on the Table of each House (vide paras 11.4 and 11.5.1).
Per ToI report, it appears that the amendment has passed the legislatures and is awaiting the notification by the ministry of home affairs. Secretaries (see last two pages of the official CrPC) to the govt. of India notify to the gazette though it is hard to know the right secretary per this organization chart.
n - 24 January, 2013 - 16:49
Judicial division deals with CrPC and an amended CrPC 2010 has been signed by V K Bhasin who was attached to the Law Ministry. All this is really confusing. J L Chugh is the current joint secretary for the judicial division at MHA. Do joint secretaries have gazette notification powers? The powers of obfuscation learnt from the British is "amazing".
Bangalore is Mine - 24 January, 2013 - 18:13
From the TOI report, I gather that 2 significant point have been raised, viz,
- "No adjournments shall be granted at the request of a party, except where the circumstances are beyond the control of that party."
The above had been enacted through an amended, but is pending notification for the past 3 years. Thus, it is pending currently.
- Whenever witnesses are required, adopt the method of 'sessions trials' and assign block dates for examination of witnesses. "This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which he is liberated from his civil duties qua a particular case,"
The above is an 'direction' given to the other courts to be implemented right away. This means it is not mandatory, but a 'best practise' to be followed.
Vimal
murali772 - 5 March, 2013 - 13:02
In the words of the high court judge: “The matter is being adjourned almost on every occasion in the last 10 years to accommodate the counsel regardless of the sufficient cause and only on mere request. Even today, counsel for the appellant has not appeared. Another counsel got up and said that the counsel engaged is not well and, therefore, the case be adjourned.” Yet, the judge with “extreme reluctance and against my conscience with a view to do substantial justice was constrained to adjourn the case to accommodate the counsel”.
This judicial mindset is distressing and it is high time it was given a decent burial. Justice Misra, speaking for the bench, recalled the Supreme Court’s previous observations that “adjournments have grown like cancer corroding the entire body of justice delivery system” and expressed his anguish at the nonchalant manner in which adjournments were sought and granted in a routine fashion. Justice Misra rightly stressed that delay, either by the functionaries of the court or the members of the Bar, significantly exhibits indolence.
He gave a stirring clarion call for a concerted effort to wipe out arrears because “a time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command”. He concluded with the hope that “a sensible individual inspiration and a committed collective endeavour would indubitably help in this regard”. It is the burden duty of lawyers and judges alike to ensure that this grand hope is realised and it is not a case of ‘words, words, words’.
For the full text of the column by Mr Soli Sorabjee, in the New Indian Express, click here. Say that louder, Sir!
PS: Incidentally, I sent out the letter attached to the opening post to the CJ, Karnataka High Court, on 2nd Feb, for which I have received the postal acknowledgement.
murali772 - 9 March, 2013 - 12:21
Karnataka High Court’s new Chief Justice D H Waghela on Friday said that the state cannot have a judicial system mired in outdated traditions and problems of the past century. Speaking at a welcoming ceremony organised by the Karnataka State Bar Council (KSBC), Justice Waghela praised Karnataka for bringing about an information technology revolution in the country. “My mission here is to help my learned colleagues and the Bar in transforming the approach of the institution in dealing with the consumers of justice. They approach the judicial system with great faith and expectation,” he said.
Justice Waghela also stressed the need to take quick action to bring about a visible and perceptible change in the system of delivering justice at all levels of the judiciary. “I promise you today that every effort will be made to see that mission of the Indian judiciary of having zero tolerance to delay and arrears of cases is made a reality,” he said while asking for the co-operation of all participants in the legal process.
For the full report in the New Indian Express, click here.
That's pure music to the long suffering litigant public of the state. The only question is why hadn't the need for such an approach dawned on the others so far. Bangalore has from long been producing goods, as well as offering services, that are world class, and to exacting timelines. While judicial and governmental processes can't be expected to move as fast as the industry, the ever-widening gap had become a huge impediment in the healthy growth of the economy as a whole, apart from the adverse impact it had on the quality of life of the ordinary citizen. In such a scenario, Justice Waghela's talk comes as breath of fresh air. One trusts the Bar will respond positively. From the Civil Society side, I am sending out a letter to him expressing appreciation and extending whatever support required.
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