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Delays in the judicial process in not news in India. If one approaches a court for settling a dispute, it is taken for granted that the matter would continue for a few decades. Although, much has been spoken and written about judicial delays in India, most discussions are limited to the logistical limitations of the judicial process. There is hardly anything available regarding the internal dynamics of a system intentionally smothered from all directions.
There is yet to be a Chief Justice in India who has not complained about the difficulties to clear off the huge backlog of cases. There is yet to be a government in India that has not admitted this problem. There is yet to be a lawyer in India, who has not tried to beat the delay of the system or use it for his benefit. Delay in judicial process is an eyesore for Indians who have had approached its legal system.
The expectation of a litigant is to get the matter decided within a reasonable time. Whether it is a civil or a criminal trial, a litigant always dreams to get out of court at the earliest possible opportunity. This is because litigation is a costly and time-consuming affair, needless to say, a headache that bothers a person at regular intervals. Probably the only person to appreciate litigation is a lawyer. However, a lawyer who favors delays in the judicial process is enjoying the recipe for suicide, for his practice as well as his profession.
So, who benefits from delays in the judicial process? In India for example, those who benefit from protracted legal proceedings are those who are corrupt and wish to hide things under the carpet. Largely, such a categorization better fits the corrupt politicians in India including those who benefit from corruption in public life and without exception - the criminals. This probably explains why there is less attention in addressing delays in the judicial proceedings in India.
The judiciary and its procedures in order to function properly require resources. If such resources are denied then one is left with a namesake legal system that is not allowed to function. It is like owning a good car with no means to fill in the gas. This is the state of Indian courts today.
Lack of financial resources alone is not the cause for delay in judicial process in India. Look at the procedural laws, known as rules of procedure in the courts in India. For simple processes like obtaining a copy of a document, a litigant has to file at least three applications. Each application has to be logged in half a dozen registers, sealed, and stamped a dozen times. These procedures were a necessity some sixty years ago. Therefore, simply modernizing infrastructure is of little use if procedural laws are outdated.
Another classic example is depositing court fees for litigation. The procedure for depositing court-fee is as long winding as contesting a case. A person has to file four petitions and spend at least a month waiting to deposit court-fees for a case. The Civil and Criminal Rules of Practice - a set of laws that decides procedures for administrative matters in a court dates back to the early British era. Since then these laws have either been abandoned or modified some sixty years ago in the United Kingdom. However, India still practices them.
The smothering of the judicial process by the Indian government is intentional. Intentional because, as per its current financial position it does not consider itself a poor country or claims to be one. Nevertheless, look at the courts in India. Except the palatial buildings of the High Courts and the Supreme Court, the lower courts in India lack basic facilities to function. It is these lower courts that most people depend on to settle their disputes while trial courts adjudicate criminal cases. It is these lower courts that face acute shortage of labor and finance. When these courts fail to produce results, people resort to settling disputes on their own. This increases frictions within the society. Delays in judicial process also promote corruption.
A well functioning justice system ensures fairness in the society. Courts are public institutions that can effectively challenge arbitrary state actions. Courts have a greater role to play in ensuring a level ground for societal interactions. Courts control crime and prevent injustice in the society. In an equation where the state is supposed to be concerned about the society's needs, the governments ensure that its justice dispensation mechanisms are well oiled and run smoothly. When it is not so, one could presume that the government is not interested in the betterment of its people, but is more concerned about its survival.
A nonfunctioning justice system is a crude way of controlling society. There are parallels within Asia where governments have resorted to destroying the justice systems within their territories. The dismissal of the chief justice by the military rule in Pakistan, militarization of courts in Myanmar and Thailand, government officers' serving as judges in Bangladesh, political interference permitting corruption in judiciary in Sri Lanka are all examples of how governments try to control their judicial processes.
In India, the government that boasts democratic values cannot think of a direct intervention into its justice mechanisms. In the past and present, the government of India, has always tried to control the judiciary. Fearing heavy criticism and to save face it has limited its direct interventions in the judicial process. The Indian way of controlling its judiciary is by the parochial approach of chocking the justice system with restrictions in finance and use of outdated laws.
With this approach, the government tends to clog the system to such a state to render it nonfunctional. When the functioning of the justice system and the role of the respective governments in promoting justice mechanisms in their countries are considered, India is no different from its neighbours.
The familiar symbol of the Goddess of Justice depicts the role of the justice dispensing mechanism in a society. However, the presumption is quite different when the symbol's blinding veil is torn off, the scale is tilted, and the sword is rusted. This is what the justice dispensation system in India depicts today.
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
