Stalled Wheels of Justice

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Stalled Wheels of Justice records the malady as well as the remedy. It contains heartrending stories of litigants who were crushed under the wheels of justice. Mr Shishir Tripathi, the author of this book, has the unique advantage of hailing from a family of lawyers as well as being a journalist. Therefore, he has been able to provide an insight into the way in which judiciary in India functions, what ails the system of administration of justice in our country, the issue of access to justice, the way certain laws are misused, the performance of the Legal Services Authority over the years, the factors that contribute to the problem and "The Alternative'.

The problem of backlog of cases in India and the attempts to tackle the same is a century old. It is rather a matter of coincidence that this book is being released exactly after 100 years of the constitution of the first committee to examine the problem of delay.

The first committee to examine the problem of delay was set up in 1924 under Justice Rankin. Since then, several committees have put forth recommendations, but little progress has been made on the implementation front. These include the Justice S.R. Das High Court Committee (1949), the Trevor Harris Committee in West Bengal (1949), the Wanchoo Committee in Uttar Pradesh (1950), Justice J.C. Shah Committee (1972), Satish Chandra Committee (1986), and the First Malimath Committee (1990).

Apart from these, the Law Commission has addressed the issue in several reports since 1955: the 14th, 79th, 80th, 120th, 121st, and 124th reports. Other reports on this issue such as 221st, 222nd, and, especially, the 229th touched upon the issue of delay, pendency, and arrears. The Second Malimath Committee submitted its recommendations in 2003. In the Conferences of Chief Justices and Chief Ministers, the issue of backlog has always been a hot topic. On 24-25 October 2009, judges of higher courts, officials of the Ministry of Law and Justice, members of Bar Council of India, and the faculty of the Indian Law Institute and other academic institutions gathered for the 'National Consultation for Strengthening the Judiciary Towards Reducing Pendency and Delays' and came up with suggestions. The amendments to the Civil Procedure Code in the year 1999/2002 giving a big push for Alternative Dispute Resolution (ADR) also attempted to remove the logjam.

Unfortunately, the reports, recommendations, and consultation papers just piled up without any concrete result being achieved.

This is perhaps due to the fact, in my opinion, that all the reports and recommendations attempted to provide only a symptomatic relief to the ailment as allopathic medicines do to the common cold.

There appears to be a failure on the part of all the committees to understand the litigation culture of the common man in the country. The way the psyche of a litigant in this country works is very peculiar. While 50 per cent of the people who come to the court or are dragged into the court want speedy justice. The other 50 per cent appear to come to court not with the objective of securing a justified victory but with an object of prolonging the status quo, thereby retaining an unjust enrichment or an undeserved advantage. In a litigation between a landlord and a tenant, the tenant merely wants prolongation of the proceedings. So is the case of a borrower in a litigation between a lender and a borrower. In this tug of war between those who want speedy justice and those who want justice delayed, the court is caught.

Many bystanders jump to their feet and suggest that courts should be ruthless in dealing with defaulters including borrowers, tenants, etc., so that they do not achieve the object of delaying justice. But the solution is not as simple as that. In a country where capital is scarce and ownership of land, buildings, and houses is in the hands of a miniscule minority, making all others depend upon such a minority for locating their homes and establishments (small, medium, or big), the pace with which the wheels of justice can move is controlled by the other 50 per cent of the litigants.

I think the solutions suggested by many of the committees in the past replicated developed societies' committees' recommendations. In developed societies, the cost of litigation is prohibitively high. Keeping the cost of litigation high is antithetical to the idea of access to justice. A high cost of litigation will deter litigation and keep the idea of access to justice illusory.

All scholars and analysts invariably commit two mistakes while addressing the problem of backlog of cases. One is that they do not try to find out why a large number of people keep coming to courts despite their abject failure to dispense justice. The other is that no worthwhile research is done to find out how many cases get disposed of within a reasonable period of time. What makes news is only failure and not stories of success.

'Let the law take its course' is an often-used axiom in the legal world. The expression is used with a tone of authority and finality because it is assumed that the law will take the right course and justice will be served. But does that always happen? It is a question which has a disappointing answer.

In the legal labyrinth, one has to often struggle for years, sometimes decades, to find an exit. In many cases, at the end of the long tunnel what one encounters is engulfing darkness and the light remains elusive. The wheels of justice are stalled, and when they move, they move at their own pace.

If there can be a face for the stalled wheels of justice, it would be Machal Lalung. In July 2005, Lalung walked free after fifty-four years as an undertrial. He languished in the Lokpriya Gopinath Bordoloi Mental Hospital in Tezpur for thirty-eight years, even after being declared fit by the hospital in 1967.

'I don't know why I was arrested nor do I remember the date. I was then a young boy like him,' said Lalung, pointing to his college-going grand-nephew.

Machal Lalung was arrested when he was 23 years old in 1951 under Section 326 of the Indian Penal Code (IPC) for voluntarily causing grievous injuries. Ironically, his case never came up for hearing even once. As he was found mentally unstable, he was sent for treatment and then forgotten.

When Lalung was released, he was 77 years old. When the story was published, a Supreme Court lawyer wrote a letter to the then chief justice of India highlighting Lalung's plight. The chief justice of India took cognisance of it and eventually framed guidelines for undertrials who are languishing either in jails or mental hospitals for longer periods. Lalung was awarded compensation.

But what can compensate for an entire life spent behind the bars?

Attributing the quote to Pip-the hero of Charles Dickens's novel Great Expectations, Amartya Sen in An Idea of Justice writes, 'In the little world in which children have their existence there is nothing so finely perceived and finely felt, as injustice.'

Sen adds, 'But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough, is not the realisation that the world falls short of being completely just-which few of us expect-but that there are clearly remediable injustices around us which we want to eliminate.'

What comes closest to this idea of manifest injustice is 'justice delayed' and unequal access to justice.