Wednesday 24 October 2018

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The Indian Legal System – A Giant Cobweb

 

India needs more Courts, more Judges, simpler laws, a common Civil Code, a common Penal Code, a common commercial Code, a Common Civil procedure Code, and a Common Criminal procedure Code.


The entire Nation- population, more than 100 crores- is caught in a giant cobweb of what is called the Indian legal system. If any one dares to challenge this statement kindly have a look   at the following statistics culled from official sources. (Figures rounded for speedy arithmetic)

Cases pending

1. Supreme Court of India  -         60,000

2. High Courts                   -    42,00,000

3. Lower Judiciary              -  2,80,00,000

                           Total    -    3,22,66,000  or   say 3 Crores

These cases are pending for periods ranging from few months to decades. Some are as old as the life spans of three generations. In addition there are other cases pending for as many years as one may guess, before quasi judicial authorities like the revenue courts, Administrative tribunals, labor Courts, Consumer Courts, CRZ authorities and a host of others.

These quasi judicial authorities are spread in every nook and corner of this Country. They have been created under more than 20,000 State and Central statutes. It has, therefore, not been possible to obtain statistics of pending dockets before such quasi judicial authorities. I would, however, like to place this figure at a modest 2 Crores. Thus the total number of pending cases in all types of Courts and quasi judicial authorities is say 3+2 = 5 Crores. Doesn’t this figure raise a scare? If not, read further.

A dispute is invariably between two persons or rather two feuding families comprised of say 5 persons per family or 10 persons per case. Add about 5 witnesses and other essential personnel per party per case or 10 additional persons directly or indirectly involved in each case. This raises the number of people involved in each case to 20. The 5 Crore cases therefore involve 5 x 20= 100 crores litigating Indians.

Isn’t this an all time record? Does it not prick the conscience of our law makers, lawyers, judges, Ministers and people at large? I would not venture to calculate the actual money spent on litigation or the valuable men days lost on so called consultations, briefings, drafting, deposing and arguing the cases at different levels from Lower Courts to High Courts and in some cases the Supreme Court of India as well by way of appeals, revisions and reviews of orders passed at interlocutory stages and the final judgments.

I would also not venture to guesstimate the cascading effect of a litigation on business and vocations, peace and tranquility, mind and health and general well being of the people of this great Nation or dwell on the incidents of mayhem, injury, homicides and murders or damage to property and valuable assets of the concerned parties by litigants frustrated due to delays in dispensation of justice, perjury by witnesses or simply loss of valuable evidence due to inordinate delays in Courts.

A set of Government statistics discloses that more than 93% of the criminal cases result in acquittal of the accused for failure of the prosecution to prove the charges beyond a reasonable doubt. It is estimated that the law Courts would need more than 300 years to dispose the backlog. No wonder “Kangaroo Courts” set up by goondas and musclemen have a flourishing business.

Before I analyze the cause and effect of the mighty cobwebs , let me also  put forth   another set of statistics  about the number of Judges in our Courts  and compare it with the number of Judges in some developed and developing Countries.

As  of this year the number of Judges in Indian Courts  per  million population ( 10 lakhs)  is 13 as against 58 in Australia, 75 in Canada,100 in United Kingdom  and  130 in the United States of America.

The Law Commission of India in its 120th report submitted to the Government of India on 30th July 1987 had recommended that the strength of judges should be raised to at least 50 Judges per million population. Considering an average Indian’s litigative and argumentative nature, and the heavy backlog of cases I would insist on having at least 100 Judges per million.

But then the State and Union Governments would have to increase their outlay of expenditure from the present meager figures of 0.3% of GDP to at least 5% of GDP – a hefty rise indeed. Our Courts are crammed and crowded. Many of them are located in dilapidated old buildings, libraries are scarce, dockets are strewn around for lack of orderliness and paucity of manpower and archives are rotting.

Modern Technology is slow in reaching the mofussil Courts. A face lift not only in terms of a color wash but overall improvement   of infrastructure and modern IT based technology is the need of the hour. Even if we manage to fill the vacancies in the Courts ( by latest count about 1/5 of the total posts of Judges from Supreme Court down to the lower Courts are vacant at any given time) Courts may  be able to address the issue of backlog in a substantial  way.  

My attempts to lay my hands on the exact number of legislations at the Central and State levels has met with bewilderness and helplessness. By rough guess it appears that there are about 2500 Central legislations and more than 35,000 State legislations in force in India. Rules, Notifications and sundry orders which pass through delegated legislative powers of the bureaucracy is an insurmountable Himalaya.

Governed as we are under the common law system prevalent in United Kingdom and its erstwhile colonies, Law for an Indian is not only what is contained in the wording of Statutes, Rules and Regulations but also in the vast ocean of precedents created by High Courts and the Supreme Court of India from time to time and which are binding on all courts and litigants.

Common Law system  is the most uncertain law system of the world as the  interpretations of various sections, clauses, Rules  and notification keep pouring in from all corners at all times in cross directions. Even the Supreme Court does not hold itself steadfast to its own pronouncement on a given issue.

To overcome this difficulty India must in my opinion resort to codification of its myriad laws. Article 44 of the constitution   which enjoins upon the Government to codify its laws has till this day remained in the words of the Supreme Court a “dead letter”. Dr. Ambedkar was all for it.  

Goa, thanks to the Portuguese, has its own “Codigo Civil” though unfortunately it has remained unchanged and stagnant since 1867 although its mother Country has extensively revised upon it in later years.

“Manusmriti, though controversial, is perhaps the world’s oldest “Code”. Hamurabi and Justinian   Codes were compiled in 2200 BC and 533-34 A.D respectively.

Napoleon thrust upon his people his “Code” in the year 1804. Portugal, Japan, Switzerland, Greece, Italy, Russia and many more Countries have their own Civil Codes. Why not India?  Can we not allay the fears of religious zealots who keep raising the bogey of   anachronism on their religious rights and precepts if a common Civil Code is enacted?  

Dr. Ambedkar had advocated a Uniform Civil Code for voluntary application as and when people were ready for it just as the Special Marriage Act is applicable to those who volunteer to get married under its provisions. Closer home in Goa, though Codigo Civil was enacted in 1867 the Portuguese had not imposed it on all Goans. They had preserved the local customs and usages of native Hindus through a special enactment. This law continues to be in force.

However, Hindus of Goa preferred the Codigo Civil. Muslim and Christians too abide by it voluntarily. Principles like monogamy, equal rights of spouses in property of each other, equal share of heirs in the estate of their deceased parents etc continue to hold sway over our people in spite of our religious preferences.

Our procedural Laws have an inherent potential to create delays. Provisions of review, revision and appeal against interlocutory and final orders are a heavy weapon in the hands of the rich and the mighty to squeeze a poor litigant out of the Court annals no matter how strong a case he has.

India needs more Courts, more Judges, simpler laws, a common Civil Code, a common Penal Code, a common commercial Code, a Common Civil procedure Code, and a Common Criminal procedure Code. We also need a strong Alternative Dispute Resolution Mechanism functioning at all levels of our Judiciary. Above all we need a reliable compilation of all laws, Rules and Regulations in force.

All these myriad laws should be made to pass through a legal sieve of scrutiny. All archaic dysfunctional and outdated laws should be relegated to the dustbin of history. We must begin as a first step, by collating and codifying existing laws subject wise.

Since 1990 we have launched ourselves on the path of globalization, liberalization, privatization etc. Law Reforms have not kept pace with economic development. It is a stupendous job but sooner we do it, better it will be for own Nation of over 100 cores.

I recollect fondly my personal contribution to this great effort both at the national and local level. I am, however, left to rue as successive Governments have had no time to undertake this massive work of law reforms.

This monster of a spider sitting in his sticky web of laws, procedures, Judgments and precedents must be annihilated to usher in “Rule of Law.”




Hi Uday,

As far as knwing Bhai is concerned i knw him personally since his school days. he is a born leader. i was there when he was appointed by congress party and other leaders (and "not gauda") as union law minister.

i request you to kindly stop making assumption and false conclusions with misinterpreted information.

GAUDA HAS NO HAND IN MKING BHAI A UNION LAW MINISTER AS HE HIMSELF WAS APPOINTED BY OTHER COALITION PARTNERS. IT WAS ALL HIS LUCK THT HE BCAME A PRIME MINISTER. BEFORE THT THEY NEVER MET EACH OTHER

BHAI GOT ELECTED ON MERIT AND HE PERFORMED AS BEST UNION LAW MINISTER TILL DATE AND MADE ALL THE GOANS PROUD. TILL NOW HE IS THE ONLY GOAN CABINET MINISTER IN CENTER.

 
NARAYAN pernem |

mr khalap you always manage to get strong reactions for no fault of yours. that is because of 3 reasons. 1st you being a gentleman people think you are a soft target and it is safe to criticise. 2nd is your views on konkani. (please note on language issue i dont agree with you but i know you will always be a marathiwadi and i will always be a konkanimogi). 3rd reason is that you are a nationalist. on this issue we are with you. i dont agree with harsh views of mr bhushan for his language. but i agree with his feelings. bharatmata ki jai and down with portuguese agents. now coming to the issue you have raised in your article if legal system is a cobweb then lawyers are the spiders who have made this cobweb to trap innocent cliants.This is my view what people have to say on this?

 
jayesh nayak |

Hi Narayan,

These days new trend has come in force, at least in Goa that is call you’re liked political big wing as “Bhai”, “Bai”, “Bhau”, “Tai” and likewise.

Why is this change? What purpose it serves as far as interest of Goa is concerned?

Unless and until we get away from such unwanted all these political big wings will continue to take us on golden ride.

I think we must start calling all politicians by their names.

As for as Khalap, Gauda and Mapusa Urban Bank is concerned, I conclude you don’t know much about it! But what I wrote is a fact!! And equally don’t forget to find out why Khalap was made the law minister of India!! Also don’t forget that most of the time truth is bitter!!!

Uday – Margao

 
Uday |

its quite unfortunate that great people of this great nation want to blindly believe in conspiracy theories. if u point finger at anyone, everyone want to believe that he is bad.

bad news travel fast. most of the breaking news are negative. why? because we want to believe in conspiracies and negative things.

there is no relation between deve gauda and khalap except that they worked together in cabinet ministry. Bhai has come out clean after long legal battle. he also brought Mapusa urban bank back on track and now under his leadership bank is prospering very fast.

in those time all the banks including nationalise banks had NPAs. govt of india helped nationalise banks but cooperative banks in india were left to its fate.

but irony is that why only some selected institutions were targeted by BJP govt? why they failed miserably in helping this institutions and why only leader like bhai were targeted?

false cases were put on bhai. for three long years systematically his name was being spoiled by political establishments. but still people have faith in bhai. they reelected him and bhai took over bank and without govts support within a week he brought bank in profit.

only bhai can do this magic

 
NARAYAN pernem |

We have so many laws in place that we need not have more laws. Within the existing framework of laws, all cases can be tackled! But what is being practiced now days is “Justice delayed is justice denied.” Hence we feel the need of more laws!!

As for Mapusa Urban Bank case, I’m sure Khalap is not come out clean! Is it? If the case was to be taken to legal conclusion, I’m sure Devi Gauda’s son, who later became the Chief Minister of Karnataka, also had to be drangged in the court of law! Surprised? I think he never appeared in court in Khalaps case!!

Also find out how and why Khalap was made Law Minister of India.

 
Uday |

angrez chale gaye aur inko chod gaye. Albert pinto ko gussa kyun ata hai. Albert pinto ko gussa isliye ata hai kyun ki uska portuguese grandpa uske grandma ko chodke chala gaya aur is bechare ko uske indian grandpa ke naam pe is garib mulk india me zindagi bitani pad rahi rahi hai. Isliye khalap jaise saare freedom fighters ab pinto ke personal enemy hai.

 
bhushan |

Mr. Pinto you sound unhappy that Portuguese were thrown out of Goa and we goans got liberated from their unjust rule.

its true that todays democracy and justice system is used to blame gud and uncorrupted people like Mr. Khalap. False cases were put on khalap to tarnish his image. i remember khalap saying that he is ready for this Agni Pariksha and that he will emerge like a phoenix bird.

True to his word he came out clean and also brought Mapusa urban bank in profit.

hats off to you bhai

 
Ashish Prabhu |

Goans are not dumb Mr Khalap. That's the difference between democracy & dictatorship, During Portuguese era people got justice in time. Now its" justice delayed justice denied". Anyway, the giant cobweb helped you in the Mapusa Urban Bank (Goa Bank) case. Am I right ?

 
A. Pinto |

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Ramakant Khalap

Adv Ramakant Khalap is former Chairman of the Goa State Law Commission. Being a veteran politician of Goa, he has served the political arena as the union law minister as well as Goa’s deputy chief minister and the opposition leader in the past. He also takes keen interest in literature and cultural activities while heading several institutions, especially in the field of Marathi literature.

 

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