You be the judge on this.
Ours is a free society. It must be maintained that way. Courts of law and justice must be accessible to all citizens. That, unfortunately, does include the unscrupulous.
The Constitution allows it. 'Then change the Constitution,' was an unfortunate knee-jerk reaction, by an elder, at a seminar. Thunderous, to say the least, but in other words, ' …throw the baby out with the bath-water.' If every citizen's voice is to be so heard, chaos would reign. Is that what we want at the end of the day? Or are there saner methods?
It is a fundamental right to approach a court of law. That simply cannot be taken away. It is etched in stone. It is our last key to the vast fields of freedom, our birth right, because swaraj is not only from foreign oppressors. It needs be from our own brethren, too, no matter how crooked they may be. The law is there to protect us, all of us, and it must be used responsibly, honestly and judiciously.
Misuse can be punished; must be punished. But, for a long time, it was not so. Harking back to Justice Cardozo's most famous words, 'All that a judge needs is honesty and courage,' these days many of our courts are coming into their own. Timidity and temerity, Denning's fears, are being replaced by activism against trigger-happy litigants as never before.
Now, let us study these decided cases. And take heart.
Recently, the Haryana government was involved in a not-so-earth-shattering matter of a labour dispute, something that should have been cut short years back. The Supreme Court, Chief Justice presiding, had this to say. 'You (Haryana government) are destroying the judicial system. The question you are raising is already being interpreted by this Court. How many times shall we interpret for you? You are challenging the order of high court after five years and eight months in a case which is time-barred.'
Correctly, the Court then went on to castigate the advocate too. 'You have been approaching six different judicial forums which did not have jurisdiction to try these cases and now you are before Supreme Court. Why did you not advise your client that this cannot be done?' the Court asked (emphasis ours). A dozen words that are worth more than their weight in gold - ones that should be immortalised on the front page of every law book.
The Court slapped fines on the Haryana government, calling it a 'blatant misuse' of the judicial process. 'It is an appropriate case where state government wants to destroy the judicial system. It is high time that now we impose cost of Rs 5 lakh on each of your petitions for filing such petitions.' Strong words. Yet, well-deserved.
If such an order can be applied to state governments, why not against others, especially individuals, who use the courts as if they are participating in a T-20 'hit-out-or-get-out' match?
Criticism alone cannot work. Courts cost money to maintain. Mere calls for more judges are definitely not the only answer. They have to be appointed after due scrutiny. They must be appraised. They are not so many labourers who can be put on the job at a moment's notice. If these appointees are not up to the mark, there will be a plethora of appeals, reversals, remands and re-trials. In short, more litigation.
Next will arise the need for courtrooms in new court buildings. That is expensive infrastructure. Furniture, fixtures; support staff within the courtroom (a minimum of three). Then there is security, office and maintenance personnel, computers, printers, books and journals for each courtroom, bar rooms for lawyers, canteen services for litigants and advocates, parking lots, judges' chambers. Then there is need for libraries with years' worth of judgements and reviews, law journals, commentaries. It is not easy to set up a court where justice will not only be done, but seen to be done. 'More judges' is the tip of the iceberg. But it is the one problem that the clamouring public sees and the media repeats.
This brings us back to square one. What is the greatest cause of delays? As things pan out, pesky litigation is definitely at the top of the list. We need to weed out trouble-makers; fine them heavily. Also, ask advocates to ascertain the intrinsic value of the matters they take up. It is already done in some types of court cases, where the advocate on record must certify the validity of the matter. More needs to be added. Advocates have already been fined for useless references, especially in cases filed by serial and perpetual litigants. Public interest litigation (PIL) is one such hunting ground.
'Why not raise the court fees to deter such cases?' one may ask. It is a sword that can cut both ways. Honest but poor litigants, with genuine grievances, will be kept out; or free legal services will be overburdened. As of now, a strict and active court is the best solution for cutting through the morass of useless cases before it. And each of us, including we, as advocates, should ask ourselves this question before rushing to the courts. 'Do I really have a good case? Or am I knocking on the doors just to raise hell?' If a prospective client comes with the mandate of 'teach the other side a lesson', we always demur. We are there to fight cases, not people. Now, fortunately, courts are teaching such litigants a lesson.
Then there are personal cases, as opposed to institutional ones. A man marries an underage girl. He then tires of her and moves the court for divorce, citing the marriage void ab initio, meaning 'not legal from the beginning'. That also would mean: no alimony. He was shown the door.
An accident victim, Baljit Singh, says that he had undergone surgery on his fractured right arm which was fixed with screws and plates at a private hospital. He sued the doctor for negligence when the fixing came loose. He lost his case because it was not the doctor, but Baljit, who was careless, post-operation.
'It is evident that after the surgery, X-ray was done which showed sufficient fixation of the implant. If the screws or the plates have loosened for some reason after surgery, the doctor who conducted the surgery cannot be blamed,' the national consumer forum declared.
They relied on the report that said, 'As per the expert committee report, the screws along with the plate had already been fixed (properly).' It accepted the report that 'in order to recover, the patient is expected to comply with the advice of the doctor.'
In both cases, the lawyers should have been more circumspect.
When documents are handed over to us, we have learnt the hard way that we, as lawyers, need to verify their authenticity. Clients can mislead, too. In fact, it is best that a lawyer carefully studies a case that is brought to him and gives measured and judicious advice. Of course, crime matters are a different kettle of fish.
SLAPP stands for Strategic Litigation against Public Participation. In simple language it means, 'Let's shut up the other side by filing a case in court.' Classic Goliath suing a penniless David. Do these suits add to the backlog? Definitely. Big Brother bullying small fry is very common. While every Big Brother has a right to move a court of law, should he, can he, and be allowed to, deep fry the small fish? It does not require a rocket scientist to answer that. Happily, now the courts are doing it for the aam aadmi. Jai ho!
Courtesy: Moneylife
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