A SYMPATHETIC JUSTICE DELIVERY SYSTEM PART 5

by S.D. Dave


For long the answer to the question of “for whom do courts exist?” was, “the litigants and nobody else.” But things have changed. A lot of water has flown under the bridge. One should not be either surprised or astonished, by the answer he gets.

The term ‘Litigants’ does not require even a broad definition as, in practically all the democratic countries, it has been the part of the popular parlance, since the very inception of the institution rendering justice either real or illusionary, whether free from all or loaded with some of the vices, independent or dependent upon the will or authority of some power centres, which generally remain unseen and veiled.

We understand that the Litigants are those who either initiate or defend a cause, in the legal framework for the redressal of their grievances and the resolution of their disputes. They are called ‘plaintiffs’ or ‘defendants’. They are sometimes called ‘applicants’ or ‘non-applicants’. In Criminal Trials the State happens to be a litigant as the Prosecutor, while the accused persons are those, who are in the dock defending themselves.

This final component of a sympathetic justice delivery system has a significant place of its own whilst expecting a lot from the other components as well. It has great expectations from them, and lesser liabilities for itself, the most prominent being the need of self-education and consciousness. This liability, if not appreciated and not discharged properly, would act at their own detriment and peril.

Litigants everywhere, because of their needs, create a class by themselves. They could be notionally segregated from those who have been, or are not required to litigate. But again they are divided among themselves on the basis of the social, economical, professional and gender considerations. Their life would be shaped as per the consideration and their grievances also would be based upon this micro-segregation.

Their grievances or the causes, requiring to be decided by the Judicial Forum would be based upon this micro-segregation. A farmer, a merchant, a professional, a white collar bureaucrat and the blue collar worker, all would be having their own problems, different from those of the others. Gender, similarly also counts as much. It cannot be denied that not only in India but in other developed or developing countries also, the number of women requiring the resort to the Judicial Forum, is far low than that of the men, though their grievances are too serious, harmful and hurting, calling for an early resolution.

The popular perception, that the Litigants approach the Judicial Forum out of a sheer necessity and compulsion but never out of their choice or wish, is accepted as a correct one. The Litigants in India have to reach the Courts situated far away from their rural habitat. They are not affluent and do not have the resources to finance the litigation. They manage for the expenses for the Court fees and service of the processes, but the expenses for the transport and for the daily needs during the Court attendance, would be beyond their paying capacity. They are required to spare days for attending the Courts and be away from their usual work, resulting into the loss in their earnings. The cost of litigation sores high beyond their capacity.

The Decrees are required to be executed by filing Execution Petition, which is nothing but a fresh round. This may not be true in respect of the procedures adopted by other countries but the things are different in India, where the Code of Civil Procedure contains a lengthy Chapter (Order XXI) prescribing a step-by-step mechanism. The Litigants in India do know, or learn by their experience that the costs and procrastination are two deterrents squatting on their path to justice. These are all important factors to be considered when we speak of the need of the other components to be sympathetic toward them.

The State has to assure a safe transport and clean sanitation for the women litigants, the absolute needs for which there has been a blind eye. The Bar and the Bench Blog, International Women’s day 2019; ‘The Plight of Women Litigants in India’ talks of a study conducted by Vidhi Center for Legal Policy, covering District Courts in Delhi NCR, which reveals that most of the Court complexes have no washroom for women. The Blog also refers to a paper published in 2014 which highlights the infrastructural issues faced by the women in District Courts located in Maharashtra, Gujarat and Himachal Pradesh where public transportation during night was either unavailable or unreliable; and the adequate sitting in the waiting area were lacking. The Blog reproduces the views of Karuna Nundy, a Supreme Court Lawyer, highlighting the barriers to access to justice that women come across where she emphasizes upon the lack of women toilets in general and in State buildings. The Blog refers also to the experience of Nandini Khaitan (Partner - Khaitan and Company) regarding a Court in West Bengal. When she had inquired regarding the sanitary situations, the women there had pointed to a small enclosure within the Court complex, covered on three sides, having a torn tarpaulin roof and a tin door, which did not lock. “But after all there was a bull sitting outside keeping guard.” The State requires to be sympathetic to the women litigants by providing both the transport and the sanitary facilities.

Not only the women litigants but women lawyers also become prey to gender based discrimination, adopted, approved and propagated by male members of the community.

Indira Jaisingh, a legal luminary, who does not require an introduction, in her letter addressed to the Chief Justice of India refers to an incident. “I was referred as a ‘Wife’ rather by the name as the Counsel, by a Senior Male Lawyer in the courtroom, although immediate corrective action was taken by him upon my protest….The Judge did not protest….on one another occasion in the Supreme Court while I was arguing, a Senior Male Lawyer referred to me as ‘That Woman’ while he was referring to all his male colleagues as ‘My Learned Friend’. This was when I was the Additional Solicitor General and was representing the CBI.”

Should these expressions coming from Karuna Nundy, Nandini Khaitan and Indira Jaysinh, not be an eye-opener? Or the State, the Judiciary and the Bar would continue to wear the blinkers? And would be silent onlookers of the handicaps in the way of the litigants especially the women?

It is always the wish of Litigants that the other side does not pray for, and the Courts would not grant adjournments on avoidable reasons or flimsy grounds. Adjournment costs them dearly and renders the ultimate verdict, a very late event. The litigations have become inter-generational and yet tend to thrive for a still longer life, making the lives of the litigants miserable.

The Courts can be sympathetic by fully utilizing the Court-hours only for the judicial work. The Courts on the higher pedestal have been overcrowded by litigations initiated or defended by the rich and the mighty. The Corporate and the Club’s warfare, the efforts to recover huge amounts by invoking the contempt jurisdiction of the Courts, the internal warfare in the independent Investigating Agencies, the Bureaucracy, the Boards and the Bodies have been able to occupy more space in the working hours of these Courts, ushering out the causes of the common man wherein the issues of their life and death are involved and demand for an early resolution, at least in the lifetime of the Litigants.

The widening of the scope of Judicial Review is sought to be justified on the grounds of ‘Constitutional Morality’ by the Judges, the Lawyers and many a times by the Litigants. The overlooked pitfall is the fact that the opening of new areas for judicial review and widening of the scope of their jurisdiction, do result in the same situation. A reasonable resolution related to the expansion of jurisdiction appears to be the need of the hour. Somebody somewhere ought to initiate at least a debate on the issue in right earnest.

Looking to various difficulties faced by the Litigants, many countries including India, lean in favour of an established Pro bono legal assistance mechanism, which has yielded good results. The Bar as one of the components should come out vigorously to support the cause of the Litigants.

Appreciating the fact that the Litigants, unaware of procedural niceties, do feel handicapped, some countries, U.K. being prominent amongst them, have created two institutions, like Litigation in Person (LIP) and McKenzie friend. Under the LIP a party to a family law case is entitled to represent itself in a Court where he/she is not under any Statute required to engage a Solicitor or a Barrister. They may be accompanied by someone who helps them, called a McKenzie friend (named as such after the case which established these principles in 1970). Though to allow or not such a help is  always a matter of discretion of the Court, it is generally exercised for granting rather than refusing such a prayer. The McKenzie friend, in exceptional circumstances is allowed to act as the agent and to address the Court and to examine witnesses. Should other countries including India not think in this direction?

The Litigants as the cooperating partner or the component of the JDS must help themselves during the entire course of litigation. Self education giving some elementary knowledge in all the areas of the legal proceedings, like pleadings, issues, collection and presentation of the documents and the calling of the witnesses for oral testimony, would prove to be of great help to them.

The Litigants, therefore, should continue to demand for a Sympathetic JDS and must be ready and willing to extend the support by way of being ready for the prosecution of the cause before the Court, by self-education and self help.

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Justice Adda was a part of the Cambridge Social Ventures Programme in the Cambridge Centre for Social Innovation at Cambridge Judge Business School 2016-17.