IN THE SUPREME COURT OF INDIA, NEW DELHI. ORIGINAL CIVIL JURISDICTION. Writ petition (PIL) No: /2013 Prof. Abdul Gani Bhat s/O Late Mohammad Ramzan Bhat, R/O Pomposh Lane, Natipora, Srinagar, Kashmir. Petitioner. v/s 1. Hon’ble chief Justice of India, Through Registrar General Supreme Court, New Delhi. 2. Hon’ble Chief Justice of all High Courts in the Country, 3. Hon’ble Minister for Law and Justice, Government of India, New Delhi. 4. Hon’ble Ministers for law and Justice Of all the States of the Country. Respondents WRIT PETITION – PIL - UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA. To The Hon’ble Chief Justice of India and his Companion Judges. The humble petition of the petitioner above named MOST RESPECTFULLY SHEWTH: 1. This writ petition is containing practical suggestions for streamling the Judiciary and wiping out backlog from the courts and ensuring equitable and speedy justice to the people of India and is filed before this Hon’ble Court for achieving the same object. 1a. A judiciary-headed (The Chairman was a former Chief Justice of India), judiciary-heavy (six of the eleven members, including the Chairman, were from the legal profession) National Commission to Review the Working of the Constitution has observed: “Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice” 2. Justice System in the Country had been received in its solid state as a ‘precious legacy’ of the Britishers and has not been touched, moulded and dyed into the country’s democratic colour even till to day when more than 65 years have passed by from attaining the ‘freedom’. The resultant chaos, confusion, lack of justice and lack of faith of the people in the Courts of justice is rampant everywhere in the country. 3. The Petitioner would like to suggest some measure which may go a long way in minimizing waste, speeding up cases, wiping out back-log and dispensation of real and equitable justice by our courts of law. i. Before filing a case it should be made incumbent on the party to serve a notice to the other party for making amends lest the party would be knocking at the doors of justice at his risk and responsibility. This Notice should be treated an important document and should be given evidentiary value in court proceedings. It will go a long way in curbing litigation in court as there is every likelihood that the parties may settle their matters among themselves at this stage itself, without allowing the case to move to the court. ii. Once the party rings the door bell of a court of law, the Court should treat the ringer as a sufferer and should treat him with kindness and candidness. iii. Once the case is filed before a court of law, the meter should necessarily start ticking against either of the parties. The issue of notice to the other party should be a matter of course. The notices may be of one month in ordinary cases and one week in urgent cases. The other party should get exact and legible copies of the petitions/replies/objections/ counters and rejoinders etc. along with copies of affidavits and Power of Attorneys/ vakalatnamas if any. iv. All clerical work such as issuing notices, receiving replies, counters and rejoinders should be off-loaded from the Bench, and assigned to the Registrar Judicial in the Supreme Court and High Courts and to Section Officers/Administrative Officers in lower courts. v. All cases filed in the Courts should be properly acknowledged by computer generated receipts or hand written receipts where computer facility is not available or by affixing seals denoting receipt of petition on the filing indexes. vi. The filing of cases should be simplified. There should be no defect discovery section to discover defects for the sake of defects. But there should be only a broad guide line about contours of petitions. Where more copies are required to be filed in the court, only one copy of petition should be required to be filed in the first instance for finding defects, and thereafter the required number of copies could be filed. This will save much of the time, money and energy of the party and will save the National resource of paper. Supreme Court should set up filing courters in High courts and High Courts should set up filing counter in district courts so that one has not to suffer hardships of coming to the superior courts situated far away from his place. The superior courts should receive petitions by e-mail and by post also. Court fee in the shape of stamps of the respective States should be acceptable in the Supreme Court. vii. The courts should not be too procedural or technical and should not meticulously find fault with the petitions but should look at their substances. The Registry cannot and should not stall any petition from its onward movement to the court, for any reason whatsoever, even after a party fails to correct/amend the petition and further when the party requests that the same may be placed before the court as it is. viii. If a party fails to submit reply within the time limit, the averments and facts of the petition should be treated as true and as admitted by the opposite party and decision in favour of the petitioning party should follow as a natural corollary forthwith without fail. ix. After all the basic formalities have been completed at the level of Registrar Judicial/Administrative Officer the cases should be placed before the Judges for decision, with an office report, copies whereof should be supplied to the contesting parties as a must. Copies of all the orders if and when passed in the cases by the court, should be provided to the parties as a matter of course. x. There should be no adjournments once the cases are sent up to the Judges. A party may seek an adjournment at the stage of filing reply/objections, counters and rejoinders, under unavoidable circumstances only, but such adjournment should invariably be accompanied by appropriate costs to be paid to the other party. Canons of equity, justice and fairplay alone should be the guiding principles in the court. xi. All (colonial) discretions of judges, which are of dictatorial and arbitrary character and are exercised so, where ever found in constitution, Codes or Statutes and Rules should be done away with. xii. There should be no dramatisation of cases in the courts, a colonial legacy, where the advocates excel with each other in verbatim, memory and lung power and speak all sorts of things. All pleadings, arguments and counter arguments should be specific and in writing only. xiii. The colonial practice of judges sitting on high pedestals should be done away with. Judges should sit on large tables flanked by two or more Assisting Judges/ official assistants and contesting parties sitting in front of the Judges. Petitioners in-person should be encouraged in the courts and should be made to feel free to express themselves and give vent to their feelings and grievances, and should not be pooh poohed, looked down-upon, or discriminated against in any way vis-à-vis advocates. xiv. Once the Judges receive the cases, they should, after due deliberations with their Assisting Judges/Assistants etc, prepare tentative draft decisions on the basis of averments and pleading of the parties and on the basis of law obtaining in the case and should send copies thereof to the parties for their written comments/ arguments if any. After receipt of the Written Comments/ Arguments, and after their study and scrutiny, the parties should be called for personal meetings with the judges which may be either in person (preferable) or through Recognised Agent or Pleader, when the cases would be discussed threadbare finally. The appearance of the parties should be optional, and there should be no dismissal of the case for non-appearance of a party. xv. The Judges should thereafter on an appropriate date announce judgements in front of parties in person in full or at least the operative portions, where after reasoned judgements should be given out not more than a week or a fortnight thereafter. The present practice of ‘judgement reserved’ for indefinite periods for ulterior motives, should be done away with. It a judge deviates from this procedure, without any cogent reasons, it should be viewed as a serious misconduct on his part, leading to his discharge or dismissal from service even. Signed/certified copies of the decisions/judgements should be provided to the parties, immediately thereafter as a matter of course. xvi. Imposing of costs should be a rule and the costs should not be nominal or symbolic, but should be appropriate and commensurate with the plight of the winning party, which should take into account not only the money spent by him, but also the time, energy, pain, pathos and agony, and loss suffered by him because of the other party. The courts should specify the time limit within which the costs are to be paid and should fix penalties for default. xvii. Though the State is supposed to act fairly and lawfully, yet it happens to be the major litigant in the courts because it does not affect any individual officer’s pocket and further because it has a stream of public advocates/prosecutors. Costs against Government should be heavy and should not be debited to the Consolidated Fund of the State but should be saddled on the erring officers where the abuse on his part is blatant and brazen, which will go a long way in curbing abuse and misuse of their offices and will stop much of injustice, oppression, harassment and deprivation by bureaucracy. It will also go a long way in brining down government cases in courts and the Government officers will try to be fair, equitable and just in their dealings and an atmosphere of fairness and justice will get ensued in the bureaucracy. xviii. The State should be treated at par with other private litigants and should not be given any preferential treatment in any respect by the courts as is prevalent in some Registries/Offices. xix. The winning party should have the exclusive right on all costs and penalties imposed on the opposite party. The present practice of crediting the costs arbitrarily to the ‘Advocates Welfare Fund’ or ‘Legal Aid Committee’ or the State Fund, etc. should go. Other than court fee no levy should be charged, as is illegally done in some courts on petitions, documents and deeds, for ‘Advocates Welfare Fund’. xx. Falsehood and fraud, which is rampant in court as of now, should be viewed seriously and should be immediately tackled and curbed by the Registrar Judicial/ Administrative Officers, either on their own motion or on verbal report received or on simple applications from any one. It should be treated as a court duty to curb the falsehood on its own. If the falsehood is drafted by an advocate, he also should be held responsible and collateral proceedings should be started against him/her also, which will make him/her cautious and serious while drafting petitions and replies. xxi. Appeals to High Court and Supreme Court should be rare and should be a matter of right and not of any discretion as is presently the case with SLPs before Supreme Court. Appeals should be viewed seriously and should be treated as complaints. If the appellant succeedes, the Appellate court should see whether the Judgment of the lower court was against law and justice, was not based on facts and merits of the case but on extraneous consideration and should fall heavy on the lower court judges if the judgement was given on extraneous considerations, by recommending appropriate punishments which may include their discharge/dismissal from service. The appellant should be awarded heavy costs if he succeedes, or saddled with heavy penalties if he fails. xxii. Before filing an appeal the infirmities and illegalities in the order/judgement should be brought home to the judge/judges through review petitions for correction/ modification/ review/ recall, so that the judge/judges may not face awkward situations before appellate courts. xxiii. There should be no dismissal of any case without giving cogent and plausible reasons. The words and phrases - ‘discretion’; ‘to the satisfaction of the Court’; and pleasure, (of colonial era) - where ever found in the laws should be repealed. Subjectivity should yield to objectivity. xxiv. Under the present system of the adversarial system of administrative of justice the accused is treated as innocent and remains like a prince till the end of the proceedings. All the burden is cast on the innocent victim to prove that he did not deserve the lashing and beating, assault and defamation whatsoever on the part of the accused. In fact he is put to a disadvantage. First he receives the beating from the accused now from the court to use all his efforts, means and methods to convince the court to the hilt, and prove ‘beyond reasonable doubt’ that he did not deserve the bashing and beating and that it was the accused alone who did the harm to him. This system of administration of justice is very pernicious to the Indian society and should yield to inquisitorial system of administration of justice, where the burden should be on the accused to prove his innocence and the judges playing an active roles. xxv. Persons of public spirit and social service filing cases of public Interest Litigation for common good should be patted and encouraged and awarded appropriate costs and encomiums in the decisions for their taking all the trouble and spending their time, energy and money in bringing the malady before the court. xxvi. Courts should monitor implementation of its Orders and judgements. It should be its sole responsibility and exclusive duty to see that its orders are obeyed and implemented. A party may bring into the notice of the court any disobedience of its orders, any time, verbally or in writing and the court should be quick to act on its own and punish the disobedient with heavy costs/penalties including imprisonment. The costs/penalties should go to the winning party. xxvii. The Supreme Court and High Courts in the country should not have any power to veto any act or law of the country from its operation on the judges and they should come under all laws and Acts, be it Right to information Act, Anticorruption Act, Penal codes/Acts and Employees Conduct Rules etc. Judges should respect the Separation of powers and should not treat in other’s fields. Judicial over-activism by Courts should stop. xxviii. There should be no elevation or nomination for appointment of High Court and supreme Court Judges. Appointment and dismissal of High Court and Supreme Court Judges should be simplified. They should be appointed on the same pattern as that of Super Services such as IAS, IFS etc. and they should be groomed in Judicial Academies. The ornamental Article 124 in the Constitution for so called impeachment of judges should be repealed. There should be a separate Judicial Commission for appointment, disciplining and dismissal of judges. They should have power to receive and investigate complaints against judges, and to, suspend, discharge and dismiss them. The Judicial commission should be manned by ombudsmen/ eminent personalities of the Country. xxix. The Retirement age of Supreme Court and High Court Judges should be same, not more than 65 years, till which age their faculties of brain and bran remain agile and active. This will also end the lobbying by High Court Judges for their elevation to Supreme Court. Beyond this age, except in some cases, the faculties of a person wane and deplete - energy gets depleted and memory wanes - Beyond that age the Judges would comport themselves more by show of authority than by real work. xxx. Judges should be made to adhere to a time schedule of working and the colonial legacy of enjoying vacations by the Supreme Court and High Court judges for around 6 months in a year (excluding sudden holidays) should be given a go bye. xxxi. The Judges should in no case go for bonhomie with politicians, bureaucrats and advocates; and for get-to gathers, inaugurations, receptions, etc. especially during working hours. xxxii. Character assassination and defamation of people should be viewed seriously and should be treated as murder. Complaints of defamation should be disposed off on priority basis on a faster keel. The court fee for filing damage-suits for defamation should be nominal/minimal and limitation period increased to 3 years. This would make the society sophisticated and civilized, and much of the sickening, bickering, quarrels and feuds on this score would disappear from the society. xxxiii. The Supreme court which at present is a fortress of “High Security Zone” should be thrown open to the public forthwith, and all pernicious rules and regulations such as accompanying of a policeman with the petitioners in-person from the gate then handing him over to the Gate keeper of the concerned court, asking the petitioners in person to seek permission from the court to ‘file, appear and argue their cases’ before the court and for filing memo of appearances etc. should be scraped forthwith, as the petitioners in-person are the Citizens and masters in a Democracy and have the inherent right to file, appear and plead their cases before a court of law. xxxiv. There should be guidance and counseling facility for common people at prominent places in the Supreme Court, High Courts and Lower Courts. xxxv. Law Libraries should be set up at Supreme Court and High Courts and lower courts for the common people, so that people could know law and their rights and duties and get enabled to file cases and appear and plead them properly before the courts. xxxvi. In Supreme Court and High Courts (subsequently in lower courts as well) video and audio recording gadgets should be installed at proper places for recording court proceedings in order to bring in objectivity. This will also act as checks and balances on judges from digressing from the judicial path and from abusing and misusing courts and law, from acting authoritatively and from passing disparaging remarks against parties before them and will bring in objectivity. Personnel handing such facilities should not be under the control of the Heads of the courts, but should be under the control of Judicial Commission and a party should be able to get a CD copy there of on that very day or the very next day so that such CDs are pure and in pristine form. Efforts should be made to televise the court proceedings, and publish them through mass media, as they affect the destiny of the lives of the people. News papers may earmark separate page/pages for court news. xxxvii. The judges of the higher courts should not be appointed on any public post, such as chairmen/ members of any commission/Board etc. after their retirement, as it serves as a bait to them while in active service and effects their freedom to dispense justice without favour. Further their appointment as such would be only ornamental as filling-in the blanks, as they would not be able to perform any worthwhile job at their advanced ages, and would simply pass their days and comport themselves with an euro of authoritarianism around them. xxxviii. Judicial stamps should not be diarised as is the case at Supreme Court. The diarizing of stamps is meaning less. It will minimize the avoidable waste of paper, ink, time and energy of the stamp vendor and the purchaser would be able to use them any time. xxxix. Along with Advocates Associations, there should be Justice Seekers’ Associations in the courts, which should be encouraged and initiated by the concerned courts so that the problems and difficulties faced by the Justice seekers are highlighted by these associations. They should be provided the facilities of room for office etc as is provided to the advocates. 4. These are few measures which when adopted would usher in openness and transparency in the courts and the wall of secrecy, opaqueness and darkness therein would crumble, Courts will be responsive, transparent, and accountable. Sunshine will fall all around. The cases in courts will end in no time. Real justice would be pouring out from the courts. Peace, tranquility, development and prosperity would usher in the society, and a time would come when the judges will have scant or no work and owls would start hooting in courts. There would be superfluity of judges and instead of increasing their number you may have to decrease it. 4a. The petitioner has not filed any other petition in any other court including this Hon’ble Court for the relief projected in this petition. PRAYER As such it is prayed that: I. This Hon’ble Court may be pleased to pass a Writ of Certiorari directing all the courts in the country including the Supreme Court to adopt these measures, by making necessary amendment in their rules/regulations and by passing necessary legislation by the Centre/States, were ever required. II. This Hon’ble Court may further be pleased to pass any other order writ or direction as it deems fit and proper under the facts and circumstances of the case. 21.1.2013 (Prof. Abdul Gani Bhat)
Posted on: Thu, 11 Jul 2013 15:53:42 +0000
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