CHAPTER- III

PRESENT INDIAN JUDICIAL SYSTEM: AN ANALYSIS.

 CHAPTER- III

3.0 PRESENT INDIAN JUDICIAL SYSTEM: AN ANALYSIS.

3.1 Introduction

The British Raj refers to the British rule between 1858 and 1947 of the Indian

Subcontinent, or present-day India, Bangladesh, Pakistan, and Myanmar, during the period

whereby these lands were under the colonial control of the United Kingdom as part of the

British Empire.1 2In India, British style courts were established by the East India Company
'y
in 1775, wherein the British ignored local indigenous adjudication procedures and

modulated the process of adjudication in the courts on that of the British law courts of the

period. The party control over evidentiary development of litigation has traditionally been

a significant distinguishing feature of the British, American, and Indian systems compared

to the Continental European systems of Germany and France, and former colonies

influenced by models of greater judicial control.3 The structure of the Indian judiciary has

both vertical and horizontal dimensions and is more accurately described as a pyramid,

arguably a comparatively flat one.4

The present Indian Law is largely derived from English common law which was first

introduced by the British when they ruled India. Various Acts and Ordinances which were

introduced by the British are still in effect today.5 The outcome of a legal judgment in

favour of one party or the other, rather than a compromise or conciliated settlement, is a

feature common to formal legal systems of Roman origin, not only those based on
1 http://en.wikipedia.org/wiki/Judge
2 Bernard C. Cohn, Some Notes on Law and Change in North India, 8 Econ. Dev. & Cultural Change
79,90 (1959)
3 John H. Langbein, the German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985).
4 Raj Kumari Agrawala, History of Courts and Legislatures, in (Minattur Joseph), The Indian Legal System 1978.
5 Ibid,
63
European or more specifically British models. The traditionally separate British

procedures for equitable remedies to a significant extent qualified the win- lose feature of

these formal justice systems.6 British procedural justice was incompatible with the values

of Indian rural jurisprudence.7 The present Indian judicial system is borrowed from

outside and transplanted on Indian soil, or that it is based on alien concepts unintelligible

to Indian people. The criticism that the present system of administration of justice is not

suited to the genius of Indian people is based on the ground that Indian society is basically

an agrarian society, not sophisticated enough to understand the technical and cumbersome

procedure followed by Indian courts. The judiciary is relatively independent and the legal

system is based on English common law. India's independent judicial system began under

the British, and its concepts and procedures resemble those of Anglo-Saxon countries. The

practical application of this system in India has achieved mixed results.8 Some observers

have recently emphasized the positive role played by a strong Indian judiciary in

increasing the accountability of democratically elected officials.9 Yet, others believe the

adversarial procedural justice system in India has failed from its inception.10 As India

celebrates its sixtieth year of independence, and as it pursues economic liberalization

efforts, it is time to assess its civil justice process and to facilitate the design of long

needed reforms.

6 G. Palmer, The Law of Restitution (1978).

7 Cohn, supra note 1, at 91. See also Robert L. Kidder, Courts and Conflict in an Indian City: A Study in Legal
Impact, 11 J. Commonwealth Pol. Stud. 121 (1973); Oliver Mendelsohn, The Pathology of the Indian Legal System,
15 Mod. Asian Stud. 823 (1981). C.f. Law Commission of India, Seventy-Seventh Report on Delay and Arrears in
Trial Courts, at 7 (1978) [hereinafter Seventy-Seventh Report ]
8 Bernard C. Cohn, Some Notes on Law and Change in North India, 8 Econ. Dev. & Cultural Change 79,90 (1959).
See also Robert L. Kidder, Courts and Conflict in an Indian City: A Study in Legal Impact, 11 J. Commonwealth
Pol. Stud. 121 (1973); Oliver Mendelssohn, The Pathology of the Indian Legal system, Mod. Asian Stud. 823 (1981).
9 Peter Waldman, Jurists' Prudence, Wall St. J., May 6,1996, at A1
10 Cohn, supra note 1, at 90
64
3.2 Indian Constitution and Judicial System: The Indian Constitution is founded upon

the doctrine of separation of powers. As per this doctrine there are three organs viz.,

Legislature, Judiciary and Executive and all these three organs should discharge their

functions independently, none should encroach one upon another. Nevertheless in India,

this doctrine is not applicable strictly, but checks and balance theory is applicable.

Indian Constitution has adopted the federal system of America, and there exists

separate sphere for the Centre and States. Nevertheless to administer both Union and State

laws, the Constitution of India provides for a single integrated system of courts. In the

hierarchy of the judicial system at the apex there exists Supreme Court of India consisting

of a Chief Justice and 25 other justices, appointed by the president.11 It is constituted as

the supreme guardian of the Constitution of India and also the Supreme Guardian as well

as the Protector of Fundamental Rights.12 The High Court stands at the head of the state's

judicial administration.

Articles 233 to 237 of the Constitution of India deal with subordinate courts.

Different State laws furnish for distinct species of jurisdiction of courts. Each state is

divided into judicial districts presided over by the Principal District and Sessions Judge,

who is the Principal Civil Court of original jurisdiction and can try all offences including

those punishable with death. He is the highest judicial authority in a district. Below him,

there are courts of civil jurisdiction, known in different states as Principal Civil Judge

Senior Division, Principal Civil Judge Junior Division, Similarly, criminal judiciary

comprises Chief Judicial Magistrate and Judicial Magistrate First Class.

11 Art. 124 (2) of Indian Constitution.

12 Art. 32
65
3.3 Hierarchy of Courts

3.3.1 The Supreme Court of India

The Supreme Court has original,13 appellate14 and advisory jurisdiction.15 Its

exclusive original jurisdiction extends to all disputes between the Union and one or more

States or between two or more States. The Indian Constitution confers an extensive

original jurisdiction to the Supreme Court to enforce Fundamental Rights.16 Appellate

jurisdiction of the Supreme Court can be invoked by a certificate of the High Court

concerned or by special leave granted by the Supreme Court in respect of any judgment,

decree or final order of a High Court in cases both civil and criminal, involving substantial

questions of law as to the interpretation of the Constitution.17 The President may consult

the Supreme Court on any question of fact or law of public importance under Article 143

for its advisory opinion.

The judgment of the Supreme Court is regarded as law of the land.18 It has many

Benches for the litigation, and this apex court is not only the final court of Permissible

Appeal, but also deals with: interstate matters, and matters comprising of more than one

State, and the matters between the Union government and any one or more States, on its

original side.

The President of India may wherever necessary seeks consultation, opinion and

guidance of the Supreme Court. The Supreme Court is empowered to punish any person

for contempt. The Constitutional Bench is the largest Bench of the Supreme Court of

13 Ibid, Art. 131.

14 Ibid, Arts. 132 to 134.
15 Ibid, Art. 143.
16 Ibid, Art. 32.
"ibid Art. 132(1).
18 Ibid Art. 141.
66

i- 1123 Z P‘2
India, depending on the importance attached to the matters before it, as well as the

workload of the court it consists of 7 or 13 judges. A full bench consists of 3 or 5 judges

and the Divisional Benches consist of 2 and 3 judges. The Appeals to this Court are

allowed from the High Court, only after the matter is deemed to be important enough on

the point of law or on the subject of the Constitution of the nation, and is certified as such

by the relevant High Court.

A person may, in the absence of any certificate from the High Court, with the leave

of the apex court, appeal to Supreme Court, by filing a Special Leave Petition before the

court.19 Any body may, with the leave of the apex court has got right to file a Writ against

the violation of Fundamental Rights enshrined under the Constitution of India. However

without the leave of apex Court, certain writs are directly filed, against the orders of the

Court Martial, and the Central Administrative Tribunals.

3.3.2 The High Courts

Each State has a High Court, and is the highest court in that State, and generally

the last court of regular appeals. Generally the High Courts are only the courts of Appeal.

The High Courts play a very significant role in the scheme of administration of justice.

They enjoy civil, criminal, ordinary as well as extraordinary jurisdiction.

The High Courts are also termed as the courts of equity. When there is violation of

fundamental rights any person may approach the High Court and also for any other rights

under Article 226 of the Constitution. Every High Court is also empowered to supervise

over all its subordinate courts falling within jurisdiction under Article 227 of the

19
Ibid, Art. 136.
20
Ibid
67
Constitution. In fact, when apparently there is no effective remedy available to a person in

equity, it can always move the High Court in an appropriate writ.

High Courts are empowered to frame their own rules, and arrange to implement

them. These Courts have the ordinary original civil jurisdiction, under certain provisions

of Law. Many times the High Courts have concurrent jurisdiction in addition to

subordinate courts, for effective remedy at the earliest. For the purpose of speedier,

cheaper and effective dispensing of justice, some of the High Courts have different

division benches in different parts of the respective states. For the of disposal of its

business, the Judges in the High Court, either sit singly or in benches of two or more

judges for deciding more important matters.

Each High Court comprises a Chief Justice and such other judges as the President

may, from time to time, appoint. The Chief Justice of High Court is appointed by the

President in consultation with the Chief Justice of India and the Governor of the State.21

The procedure for appointing puisne judges is the same except that the Chief Justice of the

High Court concerned is also consulted. They hold office up to 62 years of age and are

removable in the same manner as a judge of the Supreme Court. To be eligible for

appointment as a judge, one must be a citizen of India and have held a judicial office in

India for 10 years or must have practiced as an advocate of a High Court or two or more

such courts in succession for a similar period.

Every High Court is empowered to issue to any person or authority and government

within its jurisdiction, direction, orders or writs including writs, which are in the nature of

habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the purpose of

21 Ibid, Art. 217(1).

22Ibid, Art. 217(2)
68
enforcement of Fundamental Rights and for any other purpose.23 This power may also be

exercised by any High Court exercising jurisdiction in relation to territories within which

the cause of action, wholly or in part, arises for exercise of such power, even if the seat of

such Government or authority or residence of such person is not within those territories.

Each High Court has empowered to superintendence over all courts within its jurisdiction.

It has been empowered to call for returns from such courts, make and issue general rules

prescribe forms to regulate their practices and proceedings and determine the manner and

form in which book entries and accounts shall be kept.

3.3.3 Organization of Subordinate Courts

In India, throughout the country the structure and functions of the subordinate

courts are more or less uniform. Descriptions of courts indicate their functions. In

pursuance of the powers bestowed upon them the subordinate courts deal with all disputes

of civil or criminal nature. The proceedings before the subordinate courts are subject two

important codes prescribing procedures, the Code of Civil Procedure, 1908 and the Code

of Criminal Procedure, 1973 and further strengthened by local statutes.

The. administrative control over the members of the subordinate courts vests with

High Courts under Article 235 of the Constitution of India. In relation to such State to

exercise further powers bestowed under proviso to Article 309 read with Article 233 and

234 of the Constitution, the State Government should frame rules and regulations in

consultation with the High Court. The members of the State Judicial Services are governed

by these rules and regulations. For the first time under the directive of the Supreme Court

of India, the Central Government has set up a National Judicial Pay Commission to

examine the present structure of emoluments and conditions of service of judicial officers

23 Ibid, Art. 226.

69
in the states and Union Territories. The Commission has made its recommendations to the

State governments. The same, as a rule, officer entrusted with power under both the

statutes presides over the court and it is known as Principal District and Session’s Court.

Depending upon workload, a District Court may have jurisdiction over more than one

District. Generally these courts have unlimited pecuniary jurisdiction and depending upon

the power bestowed on the incumbent officer-in-charge of the court, it can handle criminal

cases.

In some states, these courts with unlimited pecuniary jurisdiction are called courts

of civil judge (senior division) while in other states they are described as courts of

subordinate judge. Apart from these courts, there are other courts known as small cause

courts. These are set up either under the Provisional Small Causes Act at the District level

or under the Presidency Town Small Causes Court Act in Presidency/Metropolitan towns.

3.3.3.1 District Courts: These courts are primarily Civil Courts to hear generally the

appeals from the courts of original civil jurisdiction in the Districts and Tehsils (Talukas).

However these courts have also been given original civil jurisdiction under many

enactments. This court exercises jurisdiction within its territorial or local jurisdiction of

the District. These courts are again depending upon the workload classified into Principal

District Court, I Additional District Court, and II Additional District Court etc. The

Principal District Judge of these courts makes over all supervision of subordinate civil

courts.

3.3.3.2 Session Court: The State is to establish a court of the session court for every

district. The court is to be presided over by a judge appointed the High Court.24 These

courts are primarily Criminal Courts, with jurisdiction to revise the orders from the

24 Section, 9. Cr.P.C, 1973

70
subordinate Magistrates as well as to try serious offences, as prescribed by law.

Nevertheless these courts have also been given original criminal jurisdiction under many

enactments. This court exercises jurisdiction within its territorial or local jurisdiction of

the District.

3.3.3.3 City Civil and Sessions Courts: These Courts are only in the Mumbai, Chennai

and Kolkata, and are primarily Civil Courts of original jurisdiction of higher monetary

valued suits, however these courts have also been given powers of certain appeals against

its subordinate small cause’s courts. The session’s courts are primarily Criminal Courts,

with jurisdiction to revise the orders from the subordinate metropolitan magistrates as well

as to try serious offences, as prescribed by law.

3.3.3.4 Principal Civil Judges (SD& JD) Courts: Depending on the monetary

jurisdiction assigned to the category of the court, all the civil litigation matters are filed

before the courts of the original civil jurisdiction, either the Senior Division or the Junior

Division depending upon the workload of the court. These courts again classified into I

Additional Civil Judge Senior Division, II Additional Civil Judge Senior Division and

Civil Judge Junior Division, I Additional Civil Judge Junior Division, II Additional Civil

Judge Junior Division. Most of the times there are more than one Judges of the Junior

Division in every Tehsil, and of Senior Division in every District.

3.3.3.5 The Chief Judicial Magistrates and other Judicial Magistrates’ First Class: In

every district the State government may, after consultation with the High Court, establish as

many Courts of Judicial Magistrates of the First Class and of the second Class, depending

upon the work load. The presiding of these courts shall be appointed by the High Court.25 The

Chief Judicial Magistrate heads over the other Judicial Magistrates of First Class in every

25 Section 11 (2) Cr.p.c, 1973

71
tehsil. Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge and other

Judicial Magistrates shall, subject to the general control of the sessions Judge, be subordinate

to the Chief Judicial Magistrate. These courts are primary criminal courts, where every

offender is first produced after arrest by the police.

3.3.3.6 Special Executive Magistrates: In every district the State Government may after

consultation with the High Court, establish, for local area, one or more Special Courts of

Judicial Magistrate of the First Class or the Second Class to try any particular case or

particular class of cases. Where any such special Courts have been established, no other

court of Magistrates in the local area shall have jurisdiction try any such case or class of

cases. The presiding officers of such courts are appointed by the High court. These and

other Magistrates of the Second class are appointed for trying of very minor criminal

offences and quasi criminal matters, and generally report directly to and are subordinate to

the Chief Judicial Magistrates, who also generally hears appeals against the orders passed

by these magistrates.

3.3.3.7 Courts of the Metropolitan Magistrates: In every Metropolitan area, the State

Government may, after consultation with the High Court, establish courts of Metropolitan

Magistrates, at such places and in such numbers as it thinks necessary. The presiding

officers of such courts are appointed by the High Court. The Jurisdiction and powers of

every such Magistrate shall extend throughout the Metropolitan area. In every

Metropolitan area, the High Court shall appoint Metropolitan Magistrate as Chief

Metropolitan Magistrate.29 The Chief Metropolitan Magistrate and every Additional Chief

Metropolitan Magistrate shall be subordinate to the Sessions Judge and every other

26 Ibid
27 Section 9 Cr.p.c, 1973.
28 Section 16 Cr.p.c, 1973.
29 Section 17 Cr.p.c, 1973
72
Metropolitan Magistrate shall, subject to the general control of the Session Judge, be

subordinate to the Chief Metropolitan Magistrate.30 Again another legacy of the British

Raj is the courts of original criminal jurisdiction in the presidency towns of Mumbai,

Kolkata and Chennai. Though under certain Acts, they have exclusive jurisdiction, where

every offender is first produced after arrest by the police.

3.3.3.8 Small Causes Courts: These courts, a legacy of the British Raj, are the courts of

original civil jurisdiction in minor civil matters and litigation and only in the presidency

towns of Mumbai, Kolkata and Chennai. Though under certain Acts, exclusive

jurisdiction, irrespective of the monetary valuation of the subject matter, is granted to

these courts.

3.4 Judicial Procedure:

There are generally two types ofjudicial process, they are:

1) Adversarial Process and

2) Inquisitorial Process.

3.4.1 Adversarial Process of Dispute Resolution:

The contemporary Anglo-Indian adversary system has gradually evolved over several

hundred years. In fact this system is originated in Germany and England. The scheme of

Indian jurisprudence, in which, a judge delivers a decision in a controversy between

parties who assert contradictory positions during a judicial examination such as a trial or

hearing. Indian courtrooms have often been compared to battlefields or playing fields. The

adversary system by which legal disputes are settled in India promotes the idea that legal
■y *

controversies are battles or contests to be fought and won using all available resources.

30
Section 18 Cr.p.c, 1973
31
Ibid
73
 In the Anglo-Indian adversary system, a party may not be judged without having

been heard or called. Parties must disclose in due time to one another factual arguments

supporting their claims, the means of evidence they produce and the legal arguments they

rely upon so that each party may organise his defence. Parties choose freely their advocate

either to represent them or to assist them in accordance with what the law allows or

requires. Oral arguments are held in public hearings, save where the law requires or allows

that they be held in the judge's chamber. The parties to a dispute or their advocates square

off against each other and assume roles that are strictly separate and distinct from that of

the decision maker, usually a judge or jury. In his decision, the judge may take into

consideration grounds, explanations and documents relied upon or produced by the parties

only, if the parties had an opportunity to discuss them in an adversarial manner. He shall

not base his decision on legal arguments that he has raised sua sponte without having first

invited the parties to comment thereon. The decision maker is expected to be objective and

free from bias. Rooted in the ideals of the present Indian judicial system, the modem

adversary system reflects the conviction that everyone is entitled to a day in court before a

free, impartial, and independent judge. Adversary theory holds that requiring each side to

develop and present its own proofs and arguments is the surest way to uncover the

information that will enable the judge or jury to resolve the conflict. In an adversary

system, the judge or jury is a neutral and passive fact finder, dispassionately examining the

evidence presented by the parties with the objective of resolving the dispute between

them. The fact finder must remain uninvolved in the presentation of arguments so as to

avoid reaching a premature decision.

74
 The term Adversarial means a competitive battle between disputing parties in

respect of their dispute. In this process when there is legal wrong or injury caused to a

person or determined class of persons by reason of a violation of legal right or

Constitutional right, then aggrieved party (i.e., Plaintiff\ Petitioned Applicant) by paying

of the prescribed court fee may file suit/petition/writ petition in the appropriate court to

enforce their infringed right.

The Registrar of the Court or the Chief Justice of India or High Court or Principal

District Judge or Principal Civil Judge Senior or Junior Division will allocate the case

either to appropriate Bench or other inferior Presiding Officers of the court depending

upon the facts of the case and its importance. Thus for the disputing parties the judge will

have no access. They also have no freedom to choose their own judge for their case. A

civil proceeding involves generally many stages including pleadings, a determination of

Jurisdiction, trial, judgment and decree, appeals (including revision and review), and

execution.32

The present Indian Judicial civil system resembles this process. The adversarial

process commences proceedings by filing a plaint by the plaintiff. After filing the plaint

the court will issue summons to the defendant for his appearance and filing his written

statement. The defendant has to appear before the courts on the date on which his

appearance is fixed and required to file his written statement. On the basis of pleading

filed by the each party, the court will frame issues or points for determination. Each party

will lead their evidence and they have to prove respective case. This system permits the

disputing parties to control their dispute. They are also required to present their case in

their own ways. From this it is very clear that parties have got primary responsibility to

32 Ibid
75
prove their respective case by leading evidence and producing relevant documents. Until

the parties’ suit is finally disposed off, the parties have got option to file number of interim

applications under the Code Civil Procedure Code, 1908, like applications for temporary

injunction, appointment of commissioner, attachment of property, arrest before judgment,

appointment of receiver, production of documents, permission to sue as an indigent

person, setting aside an ex-parte decree, exempting of issuance of two months notice

against government, bringing legal heirs, amendment of pleading etc under specific

provisions. When there is no specific section or order to claim their relief then aggrieved

parties may move an application under section 151 of Civil Procedure Code 1908, which

provides for the inherent powers of the court. Thus this system provides for a lengthy

procedure and the parties are bound to follow and adhere it.

After leading the evidence, next stage involved is that, both the parties have to

advance their part of the arguments. After hearing arguments of both disputing parties, the

court will pronounce the judgment. Decree follows the judgment.

The aggrieved parties against decree of the civil court also have got right to prefer

an appeal or revision or review. The parties should bear all necessary and incidental

expenses of the court from the filing of case until it is finally disposed off like advocates

fees, typing charges, court fees, appeal fees etc. Thus it is costly and expensive. The

hearing of the dispute, takes place in the open court. Public have right of access in the

open court. The procedure is formal and inflexible. The court will record the evidence of

the disputing parties in the open court. There is no confidentiality. The parties shall

adhere to rules of evidence and other procedural laws.

76
 The court will not interfere in the matter of collecting required information to

discover the truth. The role of the court is just like a passive umpire. Thus the parties\their

lawyers play an important role in proving their respective case. The courts simply

watchdog of those facts and give its decision by mechanically applying law or similar

principles to such facts taking into consideration materials placed on the record.

In criminal proceedings also when there is a legal wrong or injury is alleged to have

been caused, then on behalf of aggrieved person any body can set the criminal law in

motion. The investigating officer investigates the case and submits the case and produce

the accused before the appropriate court. The public prosecutor conducts the case on

behalf of State and tries to prove the case against the wrongdoer. In certain situations even

the private persons may also file criminal cases against the wrongdoer, when the officer in

charge of police station refuses to record the statement of the complainant. The criminal

court gives equal opportunity to the parties to represent their cases. Both parties have

equal rights to produce their oral and documentary evidence, to have right to be

represented by their advocates and place their arguments through their advocates.

The court punishes or acquits the accused person only after hearing the arguments

according to the procedure. The court does not show any bias and it acts strictly in

accordance with the legal rules only. The parties to an Anglo-Indian lawsuit are

responsible for gathering and producing all the evidence in the case. This forces them to

develop their arguments and present their most compelling evidence, and also preserves

the neutrality and passivity of the fact finder.

The adversary process is governed by strict rules of evidence and procedure that

allow both sides equal opportunity to argue their cases. These rules also help ensure that

77
the decision is based solely on the evidence presented. The structure of this legal system

naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code

of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to

win by any means. Thus in the adversarial proceeding the rule of the court is just like a

passive umpire. The presiding officer has no rule to play, but give his verdict on the basis

of materials placed on the records. Further it consumes a lot of time since before deciding

the case the parties are permitted to produce number of interim applications. The

aggrieved party has also got right to prefer appeal, revision, review etc against order

passed by the lower court. In conclusion, it may be stated that the adversarial system is

quite cumbersome. There is little control over inefficient legal representatives and lawyers

who manipulate the system to gain unfair advantage for their client or to increase legal

cost. Often the system of cross-examination is intimidating to witnesses, it places them in

uncomfortable surroundings and forces them to choose sides, when they really should be

there to testify as to the facts as they know them. This is a clear indication that at times the

adversarial system is ineffective and flawed.

3.4.2 Inquisitorial Process of Dispute Resolution

3.4.2.1 Introduction

Beginning in 1198, Pope, Innocent III, issued a series of decrees that reformed the

ecclesiastical court system. Under the new processus per inquisitionem (inquisitional

procedure) an ecclestiastical magistrate no longer required a formal accusation to summon

and try a defendant. Instead, an ecclesiastical court could summon and interrogate

witnesses of its own initiative, and if the testimony of those witnesses accused a person of

78
a crime, that person could then be summoned and tried.33 In 1215, the Fourth Council of

the Lateran affirmed the use of the inquisitional system. The council also forbade clergy

from conducting trials by ordeal or combat. As a result, in parts of continental Europe, the

ecclesiastical courts operating under the inquisitional procedure became the dominant

method by which disputes were adjudicated. In France, the parlements — lay courts —

employed inquisitorial proceedings.34 In England, however, King Henry II had established

separate secular courts during the 1160s. While the ecclesiastical courts of England, like

those on the continent, adopted the inquisitional system, the secular common law courts

continued to operate under the adversarial system. The adversarial principle that a person

could not be tried until formally accused continued to apply for most of the criminal cases.

In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for

the future shall, upon his own unsupported complaint, put anyone to his law, without

credible witnesses brought for this purposes”.35

In the development of modem legal institutions which occurred in the 19th century,

for the most part, most jurisdictions did not only codify their private law and criminal law,

but the rules of civil procedure were reviewed and codified as well. It was through this

movement that the role of an inquisitorial system became enshrined in most European

civilian legal systems. However, there exist significant differences of operating methods

and procedures between 18th century ancient regime courts and 19th century courts; in

particular, limits on the powers of investigators were typically added, as well as increased

rights of the defense.36 It would be too much of a generalization to state that the civil law

33 http://wikimediafoundation.org/wiki/Fundraising
34 Ibid
35

79
is purely inquisitorial and the common law adversarial, indeed the ancient Roman custom

of arbitration was the earliest form of adversarial proceeding, has now been adapted in

many common law jurisdictions to a more inquisitorial form. In some mixed civil law

systems, such as those in Scotland, Quebec and Louisiana, while the substantive law is

civilian in nature and evolution, the procedural codes that have developed over the last
"37
several hundred years are based upon the English adversarial system.

3.4.2.2 Meaning and Scope of Inquisitorial System

An inquisitorial system is a legal system where the court or a part of the court is

actively involved in determining the facts of the case, as opposed to an adversarial system

where the role of the court is solely that of an impartial referee between parties. The term

‘inquisitorial’ is derived from Latin terms ‘quae’ meaning ‘questing’ and inquire meaning

‘to ask.’ This process is originated from French legal system. Inquisitorial systems are

used in most countries in Western Europe and Latin America. The inquisitorial system

applied to questions of criminal procedure as opposed to questions of substantive law; that

is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for

which one can be prosecuted, nor the sentences that they carry. It is most readily used in

many, but not all civil legal systems. The main feature of the inquisitorial system in

France (and other countries functioning along the same lines) in criminal justice is the

function of the juge d’instruction, often translated as investigating magistrate. The juge

d'instruction is a judge who conducts the investigations in the case of severe crimes or

complex enquiries. He or she is independent from the political power as well as the

37 Ibid
80
prosecution. Contrary to the prosecution, which is, in final, supervised by the Minister of

Justice, the juge d'instruction, as a judge, is independent of the executive branch.

The judge hears witnesses and suspects and orders searches or other investigations.

The goal of the juge d’instruction is not the prosecution of a certain person, but the finding

of truth, and as such his duty is to look both for incriminating and exculpating evidence (a

charge et a decharge). Both the prosecution and the defense may request actions from the

judge, and may appeal the judge's decisions before the court of appeal. The scope of the

enquiry is limited by the mandate given by the prosecutor's office: the juge d’instruction

cannot start to investigate crimes on his own accord.39

If the juge d’instruction decides there is a valid case against a certain suspect, he

refers the suspect to a tribunal or court, where the proceedings oppose the prosecution and

the defense. The juge d’instruction does not sit in the court that tries the case and is in fact

prohibited from sitting on future cases involving the same defendant. The case is tried

before the court in a manner similar to that of adversarial courts: the prosecution generally

asks for Jhe conviction of the criminals, the defense counsels fights their claims, and the

judge or jury draw their conclusions from the evidence shown. Juges d1instructions are

used only for the most severe crimes (murder, rape, etc.), and for moderately serious

crimes (embezzlement, misuse of public funds, corruption, etc.) when the case has a

certain complexity.40

In administrative courts such as the Conseil d'Etat at litigation, the proceedings are

markedly more inquisitorial. Most of the procedure is conducted in writing; the plaintiff

38 Ibid
39 Ibid
40 Ibid
81
writes to the court, which asks explanations from the concerned administration or public

service, which answers; the court may then ask further detail from the plaintiff, etc. When

the case is sufficiently complete, the lawsuit opens in court; however, the parties are not

even required to attend the court appearance. This method reflects the fact that

administrative lawsuits are for the most part about matters of formal procedure and

technicalities.41

In this process the fact-finding rests on the court i.e., the presiding judges with

assistance of their officials, experts, etc., will collect the relevant and required material

information to prove the case in order to find out truth. Thus role of the presiding judge

active one. This process resembles with Indian criminal justice system. The investigation

made by the Lokayukta and Upa-Lokayukta under the Lokayukta and Upa-Lokayukta

Acts (State Acts), and by the commission of Enquiry under the Commission of Enquires

Act, 1952 come within the ambit of the inquisitorial process.

Recently the inquisitorial process is also adopted in PIL matters. In India the

concept of the public interest litigation is still not defined, since there is no independent

statute to this effect. It is judicial-aided and judge-guided strategy evolved to help the

poor, downtrodden, and helpless, socially and economically disadvantageous persons etc.

The apex court,42 however, for the first time defined this concept. Thus on behalf of

aggrieved person any member of the public can file writ petition since there is

liberalization rule of locus standi. Hence it is clear that aggrieved party alone not need

initiate the legal proceedings to get wrong redressed. The member of the public shall not

pay the requisite court fee or other necessary incidental expenses to prove the case, since

41 Ibid
42 In S.P. Gupta V Union ofIndia.
82
he not fighting his own case. The court will to bear the all the expenses. But he should be

public spirited litigant espousing the case of the aggrieved party. He need not collect the

relevant evidence, since the court will collect the required evidence through appointing

commissioner to prove the case of aggrieved party. Further some cases the court itself,suo

moto, took cognizance. If suo motu intervention by a judge is permissible on the basis of a

letter to the editor, he could intervene on any other basis (e.g., news item in any

communication media, report given by a friend, somebody blockings at the door of the

judge with his pathetic story, the judge coming across some injustice in his daily life).43

This concept was originated by Justice M P Thakkar J., as a Judge of the Gujarat High

Court (as he then was) who converted a letter to the editor in a news paper by a widow

mentioning her plight because of the non-payment of the provident fund family pension

after her husband’s death, and ordered a show cause notice to be issued without any

further formalities to the Regional Provident Fund Commissioner and another. The arrears

were paid after the first hearing. Further for the ends of justice, the Court can also convert

a letter into writ petition and take cognizance on the basis of the letter written (i.e.,

Epistolary Jurisdiction) by the member of the public or voluntary organizations of the

oppressed people. This concept is another innovation in processual dispensation and it was

developed for the first time by Justice Krishna Iyer in Kamgar Union v. Union of IndianH

and later by Justice Bhagwati in Kadra Pahadia45

The Court can also enforce its judgment even after passing of its verdict by taking

the case on its board. Thus even after passing of its judgment, the Court enforces its

judgment by appointing commissioner and directing to him to give the report about non-

43 Public Interest litigation In India, A critique, by S K Agrawala,p.9

44 A.I.R. 1981 S.C. 344.
45 AIR 198 ISC 936
83
compliance (i.e., creeping jurisdiction). The Court carries supervisory function in order to

enforce its judgment. Otherwise it is going lose its image in the eyes of the public. Hence

in PIL matters the court plays an active role. The object of this process is to give justice to

poor, helpless, disabled and socially and economically disadvantageous persons. From this

it can be concluded that even in case of civil side of inquisitorial process presiding officers

play an active role for the ends ofjustice.

3.5 Characteristics of Adversarial Procedure: Adversarial procedure has several

characteristic features which have made it acceptable world wide they are:

(1) Fair Trial: In adversarial process the judge shall adopt fair trial i.e., nothing shall

be kept confidential. Before passing any order or judgment the judge will allow

each party to prove their respective case and it will be conducted in public. Since

there is no scope for the parties to play hide and seek game the procedure secures

fairness to both the parties.

(2) Impartiality and Neutrality: In adversarial process the judge never takes sides.

He gives equal importance to both the disputing parties at the time of hearing of the

case. Such treatment is required at every stage and in every respect. This must not

only be done, but also seem to be done. The parties have got option to change

presiding officers, whenever they feel that the presiding officers take sides. The

presiding officers will also decides the case taking into account materials placed on

the record. Hence there is no question of any type of bias.

(3) Certainty of Decision: In adversarial process, the judge at the time of arriving

judgment or order is bound by the Civil Procedure Code, 1908, Indian Evidence

84

*
 Act, 1872, and Other Substantial Law. A decision of the Supreme Court is

regarded, as law of the land and all subordinate judges are required to be bound by

it. On the other hand, the subordinate courts are bound to follow the decisions of

the concerned High Court, whereas other High court decisions are persuasive in

nature. Hence there is certainty in the judgments of all courts.

(4) Decision is in the Hands of Court: In adversarial process the decision is in the

hands of the presiding officers of the court and not in the ands of parties. Each

party is required to prove its respective case in order to win in case. The court will

decide the case on the basis of materials placed on the record.

(5) Merits of the Case: The parties are required to present their pleading. On the basis

of the pleading the court will frame the issues. On the basis of issues each party

adduces its evidence in addition to other documentary evidence. To conclude the

case the court shall also hear the arguments of the parties and consider the relevant

case law and provisions. Hence the courts decide the case on merits.

(6) Enforcement of Decisions: The judgment creditor can easily enforce the decree or

order passed by the court. In case judgment creditor unable to enforce the decree or

order passed by the court on account of threat or intimidation of the judgment debtor

then judgment creditor can take assistance of the police to enforce the same. The

judgment of court enjoys high respect in the society, if anybody violates, it will be

regarded as contempt of the court.

85
3.6 Disadvantages of Adversarial Process

Millions of people are unable to access the system of administration of justice due

to various circumstances including social or economically disadvantaged position, lack of

awareness, expensive, excessive cost, cumbersome procedures etc. Some of the

disadvantages of adversarial process are:

(1)Not Flexible: The adversarial process is not flexible. The parties cannot, as per

their discretion, choose time and place of hearing. It is not convenient to both

parties. The time of hearing can be chosen by the court and similarly the place of

hearing shall always be in the court premises. The courts adopt the formal

procedure. Both the disputing parties cannot withdraw from the adversarial process

at any time without assigning proper reasons.

(2) Expenses: It is more expensive. At present in almost all the countries seeking

justice through the courts has become very expensive and to this, India is not an

exception. The parties are required to pay lawyer's fees, court fees, travelling

charges, appeal and revision fees, and other incidental expenses. Yet another

problem faced by the people is that physically accessing courts. For instance in

certain matters that can be filed only in the Higher courts, people may be required

to travel long distances that may again deter them from pursuing the remedy

available.

(3) No Appreciation of their Respective Case: In the adversarial process the role of

the presiding officers is not active one but it is a passive one. He will decide the

ease taking into consideration the materials placed on the record. In this process,

therefore, there is no scope to parties to discuss about their respective case and

86
 appreciate each other’s case better and judge too will not convince the parties on

the ground of impartiality.

(4) Lawyer: In the adversarial process parties may sue with or without legal expert i.e.,

lawyer. However on account of too much technicalities involved in the case, each

of the disputing parties is required to nominate lawyers. Usually the counsels

submit pleadings and present arguments in English. Majority of the litigants in

India are not aware of relevant law and procedure of court. Further they also do not

know what arguments and pleadings their advocates submit to the court.

Institutional weaknesses in the legal profession also contribute to protracted

litigation, resulting in backlog and delay. First, the value (and cost) of legal services

is low, because lawyers are in overabundant supply. The backlog and delay

problem is so extensive that lawyers are not able to achieve significant objectives in

a timely manner, thus reducing the value of their services in the market place.

Additionally, litigants seek those lawyers who are well known for their

effectiveness (and, thus, well compensated) to such a degree that they are

overworked and have little time to prepare their cases. Second, the professional

competence of lawyers is seemingly unsatisfactory. Law is not a competitive career

choice in Indian society, which favors medicine and engineering. Thus, there are

few outstanding law schools in India, and even law schools that provide high

quality education do not attract the best students in relation to other professional

schools. Legal education is conducted without any external academic standards.

87
(5) Increase of Work Load: In the adversarial process which is based upon the formal

process, the judge at the time of deciding the case is bound to follow the

numerous procedural laws like the Civil Procedure Code, 1908, the Indian

Evidence Act, 1872, the Criminal Procedure Code, 1973 etc. Besides this whatever

materials and other submissions placed on the court that shall be recorded. The

adversarial process will unnecessarily consume precious time of the public.

Ultimately this will cause increased workload of the court.

(6) Choice of Specialists as Neutrals: In the adversarial process there is no choice of

choosing one’s own judges. The aggrieved party has to file his case in the

appropriate court for the redressed. It is an internal regulatory business of the court

as to which judge will hear the case.

(7) Confrontation, Conflict and Acrimony: There is no satisfaction to the both the

parties even after the passing the judgment or order or conclusion of the case and

enmity will be continued to remain even forever. In fact the litigation may end in

either winning or losing, but this will not end their enmities. Since in the

adversarial process the judge is the ultimate decision maker. It will neither bury the

past nor preserve the present relationship and paves to no better future without

unnecessary confrontation and conflict and acrimony. Thus even the dispute ends

but enmity remains forever.

(8) Affect Business Reputation, Goodwill and Ongoing Relations: Adversarial

process adversely affects the parties’ from the loss atmosphere of business

reputation, goodwill, and ongoing relation in litigations.

88
 (9) Rigidity: The present judicial system is very rigid, since the court has to follow

procedural laws, which are often cumbersome and difficult for laymen (even the

educated) to comprehend. Man's habits, thinking, social circumstances, culture etc.,

go on changing and accordingly society changes from time to time. But law is

conservative, since rules, principles, etc., are uniform, certain, fixed and permanent,

and they do not change with speed of social change. Thus it requires time to

change.

(10) Delay: In 1798, William Godwin declared that justice suffered from three defects

- delay, cost and glorious uncertainty in the final outcome of any litigation. After

more than 200 years, nothing has changed. And what is ironic is the fact that in all

other avenues speed and efficiency has become the hallmark of modem civilisation.

The need is urgent - to quicken the pace of justice and shorten the time period

occupied by the trial of suits and criminal proceedings and by the appeals, revisions

or reviews arising out of them.46 An essential prerequisite for achieving the goals of

reforms is an efficient and transparent legal system. The legal system that enables

economic choice, promotes ethical and sound business practices, cuts transaction

costs and enables healthy commercial dealings through fair contracts is as essential

as good infrastructure and sound polity.47 Justice E S Venkatramiah points out that

reforms that had been undertaken to improve administration of justice have

included reforms to increase efficiency of the bar. The question of delay in the

administration of justice has been addressed innumerable times in the past. With a

46 1[1] In Renewing Governance - Issues and Options, ed, Banerjee and Chandrasekharan, Tata McGraw Hill, 1996.
47 A sound legal system and effective machinery for administration of justice at an affordable cost are the foundation
of any civilised society Dr Manmohan Singh - Convocation address National Law School of India University, 1994

89
 view to solve this problem, a variety of suggestions have been made,48 including

the appointment of more Judges, changes in the distribution of business,

amendments in the rules of procedure, the elimination of delaying tactics and the

like. Various Law Commissions and other bodies have studied this problem and it

has become a thing of concern to even members of the legal profession but no

solution seems to be available as yet to tackle this. Delayed justice, if justice at all,

is a basic premise of the Indian Judicial system. Nearly 20 million cases are

pending in various courts all over the country, even for a population of 800 million,

is an exorbitantly large number. And this rate of pendency is likely to continue with

a growing population, unless some thing is done about this soon. The causes for

delay are numerous - loopholes in the law itself, inefficient police investigation

methods, redundant and voluminous paperwork, lack of infrastructure etc.

Justice V D Tulzapurkar of the Supreme Court has observed:

If an independent judiciary is regarded as the heart of a republic, then the

Indian republic is at present suffering from serious heart aliment. In fact, the

superior judiciary of the country has of late been under constant onslaughts,

external as well as internal, which are bound to cripple the health, welfare and

progress of our body politic, as an ailing hear cannot ensure vigorous blood

supply for the sound health of its people.

Former Chief Justice P N Bhagwati in his Law Day speech in 1985 said:

48 There are three basic models for reducing court delay and expediting justice. First, making the use of existing court
resources more efficient; second reducing the demand for court services and resources; and third, expanding court
resources to meet the increasing demand for court services.

90
 I am pained to observe that the judicial system in the country on the

verge of collapse.... Our judicial system is crashing under the weight of

arrears. It is trite saying thatjustice delayed in justice denied.

We often utter this platitudinous phrase to express our indignation at

the delay in disposal of cases but this indignation is only at an intellectual

and superficial level. Those who are seeking justice in our own Courts have

to wait patiently for year and years to gets justice. They have to pass through

the labyrinth of one Court to another until their patience gets exhausted and

they give up hope in utter despair.... The only persons who benefit by the

delay in our Courts are the dishonest who can with impunity avoid carrying

out their legal obligations for years and each affluent person who obtains

orders and stays or injunctions against Government and public authorities

and then continues to enjoy the benefits of such stay or injunction for years,

often at the cost ofpublic interest.

About the Supreme Court, the Chief Justice observes:

The Supreme Court is on the brink of collapse with the enormous inflow

of cases and heavy arrears. I, for me, do not think that a large increase in

the number of Judges is desirable. If the number of judges is unduly

increased, the Supreme Court will become like a glorified High Court with

fragmented bench structures. The Supreme Court will lose its identity as a

Summit Court and there will be no cohesiveness and uniformity.

91
 I am not in favour of curtailing in any manner whatsoever the

extraordinary jurisdiction of the Supreme Court under Article 136, He further

says on High Courts, "So also the situation in High Courts is quite alarming.

Justice Bhagwati feels that the country's judiciary is on the verge of

collapse due to the massive backlog of cases in Courts. "It is not just a crisis,

the judiciary is on the verge of collapse on account of the massive number of

arrears, especially as far as the high Courts an the lower Courts are

concerned.'' He points out that there are over 20 million cases pending

countrywide and says that most of the problems have resulted from the

executive's indifference and insensitivity. Additionally if there were really good

people to man the lower courts then so many appeals would not be filed in the

higher Courts.

The law's delays are classic arid universal. It has served to describe the almost

immemorial condition of civil suits. The Dockets, or calendars of civil causes, are always

overcrowded and it may take years to get a trial on merits. The expenses of commencing a

civil action and the legal costs involved are too heavy and it become hardly worth-while to

base an action on a small claim. The procedure is too elaborate and technicalities impede

the litigant at every stage. Even after an initial judgment, number of appeals may be

further cause of delay. Where the final judgment is secured, execution is more than likely

to be returned unsatisfied. Under such circumstances the honest litigant is impeded in the

assertion of his legal rights, while paradoxically enough the dishonest litigant is

encouraged to assert unfounded or exaggerated claims. The expenses of the engaging upon

92
a protracted litigation should cause parties to settle for smaller sums or go without

redress and justice.49

Justice H R Khanna of the Supreme Court had observed:

Another thing which is shaking the confidence of the people in the

judicial system is the high incidence of acquittals and the increasing

failure of the system to bring major culprits to book. Judges, of course,

have to give their verdict on the material on record and no one can and

should expect the Courts to hold a person guilty unless there be credible

evidence to substantiate the charge against him. One major reason for

the high percentage of acquittals is the decline in the quality ofpolice

investigation and its consequent inability to procure and produce

credible evidence as may establish the guilt of the accused. Such decline

in its turn has been due to interference by the politicians in the

investigation of cases. It is well-known that the greater a person is a

goonda or an anti-social being the greater is his value and utility at the

time of elections. When politicians seek and secure the assistance ofanti­

social being at the time of the election, the latter extend their assistance

in the expectation that when those anti-social elements are in trouble at

49 Delay and technicality are operative not in civil action alone. The condition is not better in the administration of criminal justice.
In the pre-democratic era the arbitrary character of criminal justice led to accusations of excessive harshness, while at present the
outcry is against an excessive tenderness towards malefactors. Many criminals are never even apprehended. Those who are have
more than an even chance to escape by taking advantage of the loopholes of the law. The inherent drama of a criminal trial in the
very nature of things always favours the defence. Except in matrimonial action and libel cases a civil trial is usually free of such
influence. On the other hand, corruption, favouritism and petjury are especially operative n criminal trials. Every period has its
own cause celebre. It is a hearsay that wealthy and powerful malefactors escape while the poor and friendless go to jail. Innocent
men are sometimes framed by the police; and it is small comfort that the same technique is employed to the professional criminal
behind the bars upon fabricated charges.

93
 the hands of the law enforcement agencies, the politicians would come to

their rescue and take them out of the difficulty. The help rendered by the

politicians to anti social beings when in difficulty is the quit pro quo for

the help given by the anti social beings at the time of elections. All this

naturally makes the task of the police investigation of crimes extremely

difficult. This apart, we find that a good bit of the time ofpolice force is

taken in the security and other arrangements for the VIPs.

Since as we are all living in the age of information technology and thanks to the

initiative taken by Justice Venkatachaliah when he was the Chief Justice of India, at least

the Supreme Court has started applying information technology to speed up the process.

It may be worthwhile for the judiciary to get the entire judicial processes examined from

an information technology point of view and see to what extent without sacrificing any

sacred principles of law and justice, the process can be expedited. Since problem of the

judiciary is the huge backlog of cases throughout the system. It may be worthwhile to

think of some simple principles by which many of these backlogs could be cleared.

Unless a way is found to clear the backlog, the judicial system will always be under

strain.50 Since the Indian judicial system is inherited from British legal system, Britishers

prescribed it at that time, without considering the need of Indian society nor did they

consider the practical aspect of the procedure. So, this system is drawn from different

sources without seeing the ground realities. Some people today prefer to keep quiet,

rather than go to the court of law. So, now this system is more Indianised for making it fit

50 Delays in Indian Judicial System and Remedies, N. Vittal, Central Vigilance Commissioner, (Comments made on
the 5th Bhilwara Oration, 23.03.2000)

94
to society. It is heard that in ancient time justice system was very good. The disputes

were settled on the spot by delivering justice. But ancient justice proceedings were oral in

general and therefore no much record is available. Hence now it is inevitable to develop

supplementary to the present judicial system in order reduce the burden of the court.51

(11) Winning or Losing: Both the parties’ stand in equal footing i.e., winning or losing,

their respective cases. Thus, until the court pronounces its verdict / judgment, there is

no certainty who is going to win the case or lose the case, even though it is based on

Procedural and Substantial Law.

(12) Compulsion: When the aggrieved party (i.e., Plaintiff) files the case before the

court, then the other party (i.e., Defendant) has to appear before the court even though

he is not interested in approaching the court. Otherwise the court will pass ex-prate

decree. Hence the Defendant has to appear before the court and defend the case.

(13) No Confidentiality: In the court all proceeding will be conducted in public. The

proceedings will also be recorded; hence there is no scope for confidentiality. Any

person or authorities can apply for a certified copy of the judgment or order or

document, pleading etc., placed before the court to prove respective case of the

parties.

(14) Interim Injunctive Relief: The disputing parties constantly move number of

interim injunctive relief applications, (viz., applications regarding adjournment,

appointment of commissioner, temporary injunction, appointment of receiver,

production of document, amendment of pleading, set aside an ex parte decree, etc.,)

and the court will granted it or reject it, but long delays in hearing the contentions of

those enjoined stand pat. The right of appeal is a substantive and procedural right.

95
 The parties need not wait until the conclusion of the case, rather, they can file appeals

prior to final judgment. When appeals are made, the trial court proceedings are often

stayed, even though there is no legal requirement to do so. The High Courts too have

an identical two level appellate review system, consisted of (lower) single judge and

(higher) dual judge panels. The reports point out that there a lack of co-ordination

between the two levels. A lower court judge may modify his own previous ruling

while the first unmodified ruling is still pending in the dual judge panel. This not only

leads to inconsistency and confusion over the legal status of the appeals themselves,

but it also duplicates the use of valuable court time. The service of process for interim

orders often provides ineffective notice, particularly when litigants live in remote

villages. The High Courts serve process through the district courts, and the district

courts serve without requiring acknowledgment. The mails are not used because it is

assumed that process will arrive after the scheduled hearing date. Finally, the High

Courts are equally passive in assessing costs to parties pursuing non-meritorious

actions and appeals. Thus, there is no disincentive to counter the strong incentives to

seek relief at the High Court.52

(15) Public Trust and Confidence: In India backlog and delay in the disposal of civil

disputes step by step ruin the public trust and confidence. This act is important

hindrance to India's chosen path to social justice and economic development. The

incapacity to enter final legal decisions within a reasonable time renders state action

functionally immune, turns obligations to perform contractual duties into effective

rights to breach with impunity, and lessen remedies finally provided. In sum, the

52 Ibid
96
 incapacity to resolve disputes in a timely manner weakens public and private rights

and obligations.

(16) Adjournments: The records of new filing maintained by hand and documents

submitted to the court are frequently misplaced or lost among other important paper.

The councils are required to wait for number of hours until their cases to be called.

Even when the case is called, judicial attention is frequently deferred by innumerable

adjournments: the witness is not available, the parties are not present, the opposite

lawyer has not arrived, or a document is not yet available. When parties do appear,

extensions and adjournments are frequently requested and generously allowed

without formidable available costs, even for defendants who repeatedly fail to answer

the plaintiffs allegations. These exemptions enable the defendants (and plaintiffs

who have been awarded interim relief) to delay without penalty. When the case is

heard, a judge orally summarizes testimony for a court reporter. There is little

likelihood that this judge will be the same one to issue a decision because judges are

transferred more quickly than legal dispositions are made. Judges are so underpaid

and overworked that they often adjourn and delay the preparation of a case, if only to

put off the demands of reaching a decision.

(17) Inefficient Court Administration \ Excessive Judicial Control: Specifically,

inefficient court administration systems, excessive judicial passivity in an adversarial

legal process, and severely limited alternatives to a protracted and discontinuous full

trial frustrate several goals of the adversarial process itself. Inefficiency in court

administration denies timely access to legal dispositions. Excessive party control

53 Ibid.
97
 places those seeking legal redress in an unequal position because respondents can

abuse and delay the resolution procedures with impunity.54

(18) Scheduling and Notification of Appearances: Lawyers express frustration that the

schedule of appearances is frequently not accessible until the evening before the court

session, and that those cases not called are not rolled over into the next day's calendar.

This situation results in many failures to appear and little time to prepare for the next

day's hearings. Furthermore, courts use a disproportionate amount of time calling for

appearances. Usually in every court the average day of six hours, loses one and one

half hours to this process. Because parties seem to view the court's docketing system

as unpredictable, they infrequently appear in court when their case is called. Since

parties so infrequently appear, the court may call for 100 appearances before

conducting official business. Other parties respond by remaining in court on the

remote chance that a case might be called for hearing. Because the judges are

expected to prepare for hearings in advance, chronic postponements require judges to

waste many hours preparing for appearances that do not take place according to

schedule.55

(19) Taking of Evidence: The lack of continuity and court centered process of taking

evidence supplements yet another important factor to backlog and delay in the

proceeding:

a. The parties are required to bring filing and records into open court to be filed with

the registrar of the court. Apart from that the discovery of documents and

witnesses and framing of issues requires a long period of time, demanding court

attention and resources before in court hearings can begin. With limited

54 Ibid.
55 /fc. j

98
 exception, India has no out of court discovery process (e.g,, depositions,

interrogatories or requests to admit). Not only does the in- court process obviously

take up more court time, but it also complicates the coordination of the court's

schedule with the availability of witnesses. Because the courts are not effectively

able to compel witnesses to appear, the evidence taking stage of civil litigations

suffers significant delay. Moreover, the courts do not place any time restriction on

the evidence taking process. The historical justification for in- court testimony is

to allow the judge to evaluate the witness's demeanor. This justification is

undermined (1) by long periods of time between the court appearance and the

judge's disposition, requiring judges to refresh their recollection by re reading the

transcript, and (2) by the judicial rotation system, which means that the judge who

adjudicates is rarely the same judge who heard the evidence in court. Thus, the

purpose of witness evaluation is undermined under the current operation of the

oral evidentiary process, and judges are left to perform tasks, which are not

central or necessary to their own decision-making. Witness and party testimony in

court require significantly more court time. The Indian trial process entails direct

and cross-examination; however, each answer is restated (not verbatim) by the

judge to the typist for the record. The testifying person then checks the record and

signs it. Currently, the courts do not enjoy a mechanized reporting system

whereby court reporters could record verbatim reproduction of oral testimony in

written form. Finally, the unavailability of alternatives to litigation clogs the

system. Many cases awaiting judgment are no longer contentious, and long

awaited judgments are often difficult to enforce.56

56 Ibid
99
 (20) Reluctance to Enforce Pre-Existing Authority: The judges are playing very

important role in causing delay in the disposal of cases on account of not exercising their

pre-existing authority. In the first hearing the judge may not put the questions to the

parties or counsels, whether they admit or deny factual allegations contained in the initial

pleadings and record such admissions or denials. Apart from that the court may also not

examine the parties or any witnesses and record the results in order to narrow the issues

before the court. However, these procedures are generally not followed. Unwillingness of

the judiciary in taking the initiative, in spite of pre existing judicial powers, frustrates

efforts to develop more efficient and disciplined civil process. Generally the courts

empowered to develop, publish, and enforce rules governing the conduct of litigation,

but, for the most part, they have not developed such rules, and court rules that do exist

are neither comprehensive nor uniform. The result is a largely "oral" system of rules

applied on an ad hoc basis and with little discipline. In addition to that majority ofjudges

are not taking keen interest to alter procedural practices that compound backlog and

delay, but they rarely exercise their authority to the extent necessary to manage litigation

effectively. For example, judges usually can (1) make settlement hints \ suggestions, (2)

summon the defendant and documents and witnesses relied on by the defendant, and (3)

charge costs for false, frivolous, vexatious pleadings and motions. In practice, judges

seldom exercise this authority. As a general matter, judges play little or no role in

moving cases toward resolution fairly and expeditiously. Judicial unwillingness to

exercise managerial authority may be related to a variety of structural and institutional

factors.57

(21) Case Assignments: Due to constant rotation of judges and short period

assignments from one place to another place and sometimes one judge hears the case

57 Ibid
100
 and another judge decides the case and this leads to weaken the institutional and

professional accountability for disposing of matters in a timely manner. Another

lacuna for prompt disposal of the case is due to transfer of case from one to another

judge. The presiding officers in order to reach their required quota choose those

cases, which are summary in nature and thereby ignoring complex matters.

Furthermore, reassignment of matters to judges unfamiliar with the litigation

CD

duplicates use of precious judicial energies .

(22) No Contentious Matters: Due to delay in the disposal of cases many courts are

filled with cases that are no longer quarrelsome. With passage of time the parties may

also lose their interest in the litigation due change of circumstance and conditions like

non-existence of subject matter, bankruptcy loss of their jobs, personal incapacities

etc., of the opposite party, while the case remains on court’s calendar. The courts will

have difficulty in carrying out their dockets of such moot matters unless they reform

the court management system.

(23) Classification of Claims: The decentralized and frequently inconsistent

classification system leaves the lower courts unable to consolidate claims based on

common issues of law and/or fact. For example, a land acquisition dispute involving

300 claimants is likely to be divided into 300 separate litigations, each with its own

attorneys, filings, time schedules, procedural maneuverings, evidentiary preparation,

appeals, and court dispositions. Without a proper classification system and an

effective plan for handling an enormous backlog of old cases, no efforts to

consolidate the preparation of evidence or the resolution of legal issues may be

58 ibid

101
 pursued. This has a disabling effect on the ability of the Indian courts to handle

complex and multiparty litigation, and results in duplication of judicial efforts to

adjudicate common issues.59

(24) Use of Forms: In fact the courts do not use forms as a means of obtaining and

controlling information about the substance and progress of litigation. Further, to the

limited extent that courts do make use of forms, there is little, if any, uniformity

among the forms used. As a result there exists no system with dependable

information source, and no reliable way for judges to track the progress of the

litigants in moving forward with litigation. This lack of sufficient use of forms

deprives courts of a vitally important element of case management.60

All the above factors make the adversarial system improper to most of the cases where

parties are poor and illiterate. This makes the adoption of an alternative system of

adjudication imminent.

3.7 Conclusion

In fact the Indian Judiciary is the custodian of rule of law. Though the legislative and

the executive organs furnish strength and continuity to the governance system, it is the

judiciary that guard the spirit of the Indian Constitution and ensures the people’s faith in the

institutions of polity. Although most times, the higher judiciary is in the news for its

landmark and sometimes unconventional and path-breaking judgments, it is the subordinate

judiciary that is engaged in a multitude of judicial decisions that affects the common man

directly. Yet, it is rarely that the subordinate judiciary is given the importance that it

deserves in the domain of rigorous empirical intellectual analysis. Human Rights are those

59 Ibid
60 Ibid
102
rights that are inherent in a person by virtue of being human. While basic human rights are

guaranteed to persons both in domestic laws as well as international instruments, unless they

can be enforced, they would be meaningless for people, Thus, law should not merely

recognize the rights of citizens, it should also provide for remedies to be resorted to in case

of violations. However, even where law provides for remedies, and forums for the

enforcements of basic rights, the same would hold no meaning unless they can be accessed

by all, equally, regardless of religion, sex, caste, race, colour or status. While the right of

access to justice has been specifically declared to be a fundamental right in the Indian

Constitution, the Supreme Court has specifically recognized it as a human right. In Tashi

Delek Gaming Solutions v. State ifKarnataka,61 was observed, a person must be held to have

access to justice if his right in any manner whether to carry on business in infringed or there

is any threat to his liberty. Access to justice is a human right.

A vibrant judicial system is a hallmark of greatness of any nation. The Indian

judiciary is acclaimed all over the world for its realistic and dynamic approach. It has

identified the basic issues keeping in view the social objectives. Indian Constitution not only

assures political justice but also social and economic justice. By its innovative

pronouncements Indian judiciary has brought confidence in the minds if the citizens that

there shall be no denial of any political, social or economic justice.62 A judicial system is a

dispute resolution system and it must be recognized as a “service” which provides

consumers expeditious and effective resolution of these disputes it offers a mechanism for

the enforcement of rights and obligations of individuals, a function which is essential in a

functioning polity or for that matter a functioning economy. Therefore, an effective, efficient

6'(2006) 1 SCC 442

62 Nyaya Deep. Volume VII, Issue 4, p. 3 editorial
103
and humane judicial process is an essential foundation of good governance particularly in a

country like ours, committed to the rule of law.63

The adversarial system of judicial system is not only failed in administering justice in

a timely manner in India but also failed in America and in England and litigation is

considered a primary means of resolving legal disputes. In India this model does not appear

to be designed to meet the needs of a rural population with widespread poverty, illiteracy,

and unfamiliarity with formal legal procedure. It has become a decaying institution on

account of lack of internal mechanisms or strength or will to adapt to the changing times.

The judiciary has become almost a law unto itself, answerable to none and under no

pressures to reform or change with time. In India, this model was imposed to supplant

traditional rural forms of Indian dispute resolution, which involved respected adjudicators in

a more conciliatory, less formal process, and greater flexibility in remedial action. Since

backlog and delay, and the continual need for access to justice in Indian society, require

adaptations of both modem processes increasingly popular among the international business

community and traditional processes better suited to rural society. These adaptations must

offer accessible, affordable, and effective alternatives to the adversarial process.

Indian democracy depends upon the faith of the existence of judicial system. On the

other hand day-by-day it’s going to lose its importance on account of rigidity, expensive,

compulsion, uncertainty, delay, and lack of confidentiality, satisfaction, convenience etc.

Hence to regain the faith in judicial system it is inevitable to adopt another alternative

speedy disposal system.

63 Ibid, Also see Husssainara Khatoon v. State of Bihar, AIR 1979 SC 1369
104