Agenda for Audience with the Hon’ble Chief Justice, High Court of Judicature at Bombay scheduled for 14th June 2022
Agenda for Audience with the Hon’ble Chief Justice, High Court of Judicature at Bombay scheduled for 14th June 2022
Mathews J Nedumpara
14. 06.2022.
Points to be discussed
a) Common grievance of lawyers, litigants, nay, the general public
i. General public: litigation is extremely expensive, unthinkably time consuming, often resulting in denial of justice.
ii. Litigants :•
In addition to the perception of the general public the ordinary class of litigants feel that they are discriminated vis a vis the rich and powerful.
The quality of the legal service which they get from the lawyers and judges is far from satisfactory.
iii. Lawyers:
Lawyers share the grievances of the public and the litigants in equal measure. For them the profession being a means of livelihood, the sense of bitterness is far more deep rooted.
For the majority of the lawyers, who have no godfathers and/or no other financial support, their survival is at great jeopardy. More than 50% of lawyers earn less than unskilled laborers and another 25% earn just enough to make both ends meet. Another 15-20% makes a comfortable and reasonable living and for just 5-10% alone is the profession a great windfall. This 5-10% almost entirely consists of the elite class, most of whom are the kith and kin of judges and senior lawyers, powerful politicians and bureaucrats.
The reason for the denial of justice to the ordinary litigants and non-elite lawyers is:
The feudal and colonial relics which we haven’t been able to escape for the last more than 70 years since independence. With the system of judges designating lawyers as senior advocates and that being considered as a privilege among lawyers who can better secure justice, the very purpose of the Advocates Act for a unified bar, the dream of Dr. Rajendra Prasad and the common bar, was aborted. With the collegium system of appointment of judges, the fate of the lawyers from non-elite background who are no less talented than the elite, further deteriorated. The scenario today is, talented first generation lawyers finding absolutely no prospects of being successful in the profession are leaving the profession and becoming in-house lawyers of big companies or work as de facto clerks in big law firms.
Long term solution
1. The major crisis the justice delivery system faces today is the poor quality of lawyers and judges. The only solution, though it cannot be done overnight, is to attract the best talents as is the case with civil service, IITs, IIMs.
2. Creation of judicial infrastructure, namely, the literal doubling/more of the number of courts and judges and the drastic increase in the judge population ratio to being comparable to that of the US, UK and other countries.
Short and medium term solutions
1. Abolition of senior designation of lawyers, so too, the Collegium system of appointment.
2. Non discriminatory treatment of all litigants and lawyers
Nobody can deny the fact that in the Bombay High Court, the common litigant/his lawyer is given a step motherly treatment and that has been the case for decades, for the simple reason that the voices against discrimination was pitted against the powerful and the elite who are closely connected, mostly hailing from a few families and communities, all hailing from South Bombay. The time has come for such pernicious practices to be brought to an end. The ordinary litigant and lawyer who after great difficulty in getting his case listed, finds that the board is discharged to hear cases of where senior counsel have been engaged, often from Delhi. The fact is that this favor of discharging the board to hear the privileged lawyer is not confined to designated lawyers alone but also to a few juniors who enjoy the same status owning to their lineage.
The solution is to restrict the practice of discharging the board which is possible only if the practice of giving unlimited time is dispenced with.
The practice of hearing bail applications for days and citing innumerable judgments which offers no skill except entering key words and finding judgments, ought to be absolutely discouraged. This is because the Court while taking up the bail application of a VIP/celebrity out of turn, does so at the cost of not hearing a similar plea by an undertrial who has been languishing in jail for long.
The number of judges to hear criminal cases, both for bail and for quashing and other relief be increased.
The solution is to fill up all vacancies and to ensure that the High Court works at its full strength of 94 judges.
Currently petitions under Article 226 are heard by the division bench. No other High Court, today, has such a practice. The petitions Art. 226 can be assigned to single benches and a provision ought to be made for an intra court appeal to a division bench. This is of seminal importance because one right of appeal is universally considered to be an integral part of any fair justice delivery system. There is no right to appeal under Article 136, but a mere right to seek leave for appeal, and that too, not as a matter of right but at the discretion of the Supreme Court. Nobody can deny the fact that the litigant public and the legal fraternity feel extremely aggrieved by the manner in which the powers under Article 136 is exercised, dismissing almost 90 percent of all cases by non speaking, one-line orders, often affording no meaningful hearing, the average time given for hearing being just 2mins.
Dismantling of division benches and conferring all jurisdiction to single benches with a provision for appeal will provide greater availability of judges to hear criminal cases and civil suits, which the judges find difficult to handle.
There is only one judge to hear ordinary original civil suits. The queue for mentioning every day is a mile long. The judge has his limitations. Frustrated as a judge is bound to be, bars mentioning and calls for the board to be started.
Abolition of the Original and Appellate side and synchronization of the Court into one High Court of Bombay. The Original side of the Bombay High Court is known to be the rich man’s court and the Appellant of the not-so-rich. The Bar is also divided on those lines. The jurisdiction of the City Civil Court and commercial courts is limited to 1crore and 50 lakhs, respectively, it is alleged, to serve the interests of the elite class. Except for the High Court of Delhi, Calcutta and Mumbai, the High Courts have no ordinary original civil jurisdiction, irrespective of the valuation. If the civil court jurisdiction is made unlimited, the High Court’s burden will be reduced, the only casualty being that the elite class lawyers on the original side would consider it below their dignity to appear in the City Civil Court.
The simplification of the rules of procedure.
The Bombay High Court, on its Original side has more than 1000 rules and on the Appellant side has almost the same number. The rules serve almost no purpose, except to make access to justice difficult. The only saving grace is the practice where petitions are heard on lodging number before it being scrutinized, and every often with the disposal of the case at the lodging stage, the requirement of curing defects coming to an end.
The bifurcation of the High Court into the Original and Appellate side is on account of certain historical facts which are of no relevance today. Today the High Court functions de facto as two separate institutions with the resultant chaos. If there is a will, the High Court could be synchronized into one.
E-filing, e-courts, video recording of court proceedings and saving of stationary
The concept of e-court, owing to the pandemic, has taken great strides. The High Courts of Karnataka, Gujarat, etc. have implemented live streaming of Court proceedings, a giant leap in the province of accountability and transparency. It is time that the Bombay High Court too, follows suit.
Illtreatment of litigants and lawyers
The Bombay High Court too, is no exception to the widespread complaint of arrogance of the judges and the consequent ill-treatment of lawyers and litigants. There are widespread grievances against one of the senior judges who we refrain from naming.
The abysmal state of the lower courts
About the quality and standards of the subordinate judiciary nothing could probably be done overnight. But the interference of the High Court could atleast bring an end to the misconduct on the part of judges and the apathy shown to the litigant public. The concept of open court where any member of the public could enter and watch the proceedings is under grave threat for in the name of covid restrictions litigants are denied entry.
Difficulties particularly faced by lady advocates
Though creation of crèche and other facilities for woman with infants and young children may not be feasible, many of the other difficulties which lady lawyers face such as __ ___ can be remedied.
Automatic listing of cases
In the Kerala High Court, a writ petition filed before 12pm will be listed on the very same day on a two line urgent memo filed by the lawyer. There is no need for any mentioning. In the Bombay High Court, it takes months, if not years. In High Courts like that of Delhi, Punjab, Tamil Nadu, Karnataka it is listed on the third day.
Vacation Court
We are grateful to the Chief Justice for constituting a fairly large number of judges in the last summer vacation. However, that was not enough for judges had to sit beyond 8pm to hear the cases listed, so too, had to decline many pleas for listing. Criminal courts have no vacation. That principle should be applied to the High Court as well. The criminal benches of the High Court should work at full strength during vacation.
Denial of basic human rights by criminal courts
The pernicious practice of mechanically remanding an accused of even not so serious offence to police custody and thereafter to judicial custody should be brought to an end.
Difficulties faced by litigants
Though the litigants are the principal stakeholders, they are hardly reckoned. They are discriminated, often illtreated. They even find entry into the court difficult because of restrictions imposed in the name of covid. The concept of an open court where any member of the public, as a matter of right, can enter the court room, which is the guarantee for deliverance of impartial justice, is put to great jeopardy. The litigants, clerks, even lawyers have many grievances for which there does not exist even a forum for redressal. Appointment even of a senior officer as Public Grievances Officer may offer some relief.
The clerks and even lawyers sometimes receive rude treatment at the hands of the associates and officers of the Registry. The grievance officer can offer certain amount of relief.
Tribunals becoming a synonym for inefficiency, corruption and malpractices
This is a matter which requires emergent remedial measures.
Chambers for lawyers
The Bombay High Court is probably the only High Court in India without any lawyers chambers at all. The Fort area mostly consisting of old and dilapidating buildings and now going to be well connected with the rest of the city with the emerging Coastal road and the metro requires emergent redevelopment. The entire court complexes including the new High Court, Civil Court, Tribunals can be located in the Fort area itself, profitably.
Mathews J. Nedumpara
President,NLC.
98205 35428
mathewsjnedumpara@gmail.com.
Rohini Amin
General Secretary
99204 77447 .