We have inherited the present system of our courts and their procedure from the British which has been tried for more than 150 years. It has, however, to be admitted that old is not always gold. The system suited well when it was introduced. It is still to a great extent the best judicial system but, like any other system, it has become old, ineffective and is unable to cope with the changing pattern of the society. New blood in the procedure needs to be injected and sooner the better. The late Mr. M C Setalvad, the first Attorney General of India, in his address to the Bar Association of India said:
No doubt the British system of administration was very good and led to excellent results, but it had its defects which have been accentuated in two ways. We are now a democratic country and we are a much more populous country. In these days, therefore, what is required is a radical change in the method of administration of justice. We want court to which people can go with ease and with as little cost as possible. It is not merely the quickness of justice but it is the easy approach and quick disposal both which are needed and that only can be achieved if the system is completely overhauled.
This was said about 40 years ago. Have we made any improvement? Chief Justice Ranganath Mishra had given an optimistic note. He, in his Law Day speech in 1990 observed:
In these forty years law has considerably progressed in many aspects. The bar of locus standi was liberalised as early as in 1981. Ever since then, there has been a sizeable mould to the nature of litigation particularly in superior courts. In these 8-9 years, Public Interest Litigation has become popular and has served the cause of the community to a great extent. It is in this group of cases that the court has exhibited its competence of being a social auditor. The impact of the judicial process in social living has been clear and discernible; the common man has perhaps been able to see the benefit the judicial system is capable of bringing about.
Admirers and critic often indicate that for reasons which are more than one the judicial system has shown appearances of cracks fatigue. It has therefore become necessary to deal with the situation both promptly as also dexterously.
It would not be enough to overcome the almost inevitable inefficiency of justice according to law. But far-reaching changes are certainly impossible while the regime of individualism upon which the prevailing ideal is based is considered desirable. As long as individual interest id preferred to general interest, both civil and criminal justice must remain inefficient and insufficient to a large extent. Those who speak of judicial inefficiency are usually unaware of the highly artificial meaning of the conception. The law is efficient in civil suits when it enters judgement and issues execution as expeditiously as possible. Thereafter the efficiency ceases to be the primary consideration. As a result of humanitarianism which is the necessary corollary of the present individualism a whole series of obstacles arise in the enforcement of execution. The property of the debtor is often put beyond the reach of the creditor either by the procedural delays which make it possible for the debtor to transfer it or by formal exemptions from execution. The person of the debtor is of course beyond seizure. In this respect the law of previous centuries more frequently recognised rights of provisional arrest and imprisonment for debt, was certainly more efficient. But a return to the older law will hardly recommend itself now. In any event there would still remain the economic poverty of the debtor to defeat the efficiency of the law, and it is safe to venture that latter would be blamed exclusively for every miscarriage of justice. In the criminal law the situation is somewhat reversed. Once judgement against the offender is given, it is much more certain to be executed. But the concern for the individual is manifest in the procedure to judgement. The provisions are not only considered procedural safeguards but are great constitutional rights. They are indeed constitutional rights which have been won only after many centuries of bloodshed and in no democracy would their abandonment be seriously considered. The almost insoluble dilemma is that they benefit not only the ordinary citizen who occasionally finds himself in the coils of the law but the professional criminal who by long experience has learned to take advantage of all its defences.
Since it is difficult to secure radical alteration of fundamental social institutions, the reform of judicial administration usually concerns itself with adjustments of the judicial machinery. Reforms of procedure are far more frequent than changes of substantive law. Perhaps that is one of the reasons why the results frequently leave so much to be desired. It is true that the distinction between substantive law and procedure to a great extent if artificial. All reforms of procedure affect substantive rights but certainly they cannot improve the situation where the substantive right is of a dubious character. In general the creation of new courts is a very frequent expedient in reforms. Its popularity with politicians arises from the fact that it increases their patronage by providing new offices to fill. Changes in steps in procedure often have the curious result of increasing the congestion of the courts at least for some time. A great deal of litigation is often necessary to settle their effect. The fundamental puzzle of procedural reform is the indispensability of any one particular device. Since legal technique permits of a considerable degree of variance for the accomplishment of similar ends, it can be said that almost any form of procedure reasonably adapted to secure the fundamental purposes of the law will work if there is the will to make it work.
On the other hand, it must be remembered that men discharge their civil obligations and abstain from crime not only from fear of legal sanctions but also from moral and practical considerations. The modern tendency certainly has no forms of social control. Finally, it must be realised that even the defects of administration of justice, at least in civil matters, may have social value in discouraging litigation, in impelling them to exhaust the possibilities of conciliation. In an acquisitive society, it is perhaps desirable that the paths of litigation be strewn with a few thorns.
No doubt the British system of administration was very good and led to excellent results, but it had its defects which have been accentuated in two ways. We are now a democratic country and we are a much more populous country. In these days, therefore, what is required is a radical change in the method of administration of justice. We want court to which people can go with ease and with as little cost as possible. It is not merely the quickness of justice but it is the easy approach and quick disposal both which are needed and that only can be achieved if the system is completely overhauled.
This was said about 40 years ago. Have we made any improvement? Chief Justice Ranganath Mishra had given an optimistic note. He, in his Law Day speech in 1990 observed:
In these forty years law has considerably progressed in many aspects. The bar of locus standi was liberalised as early as in 1981. Ever since then, there has been a sizeable mould to the nature of litigation particularly in superior courts. In these 8-9 years, Public Interest Litigation has become popular and has served the cause of the community to a great extent. It is in this group of cases that the court has exhibited its competence of being a social auditor. The impact of the judicial process in social living has been clear and discernible; the common man has perhaps been able to see the benefit the judicial system is capable of bringing about.
Admirers and critic often indicate that for reasons which are more than one the judicial system has shown appearances of cracks fatigue. It has therefore become necessary to deal with the situation both promptly as also dexterously.
It would not be enough to overcome the almost inevitable inefficiency of justice according to law. But far-reaching changes are certainly impossible while the regime of individualism upon which the prevailing ideal is based is considered desirable. As long as individual interest id preferred to general interest, both civil and criminal justice must remain inefficient and insufficient to a large extent. Those who speak of judicial inefficiency are usually unaware of the highly artificial meaning of the conception. The law is efficient in civil suits when it enters judgement and issues execution as expeditiously as possible. Thereafter the efficiency ceases to be the primary consideration. As a result of humanitarianism which is the necessary corollary of the present individualism a whole series of obstacles arise in the enforcement of execution. The property of the debtor is often put beyond the reach of the creditor either by the procedural delays which make it possible for the debtor to transfer it or by formal exemptions from execution. The person of the debtor is of course beyond seizure. In this respect the law of previous centuries more frequently recognised rights of provisional arrest and imprisonment for debt, was certainly more efficient. But a return to the older law will hardly recommend itself now. In any event there would still remain the economic poverty of the debtor to defeat the efficiency of the law, and it is safe to venture that latter would be blamed exclusively for every miscarriage of justice. In the criminal law the situation is somewhat reversed. Once judgement against the offender is given, it is much more certain to be executed. But the concern for the individual is manifest in the procedure to judgement. The provisions are not only considered procedural safeguards but are great constitutional rights. They are indeed constitutional rights which have been won only after many centuries of bloodshed and in no democracy would their abandonment be seriously considered. The almost insoluble dilemma is that they benefit not only the ordinary citizen who occasionally finds himself in the coils of the law but the professional criminal who by long experience has learned to take advantage of all its defences.
Since it is difficult to secure radical alteration of fundamental social institutions, the reform of judicial administration usually concerns itself with adjustments of the judicial machinery. Reforms of procedure are far more frequent than changes of substantive law. Perhaps that is one of the reasons why the results frequently leave so much to be desired. It is true that the distinction between substantive law and procedure to a great extent if artificial. All reforms of procedure affect substantive rights but certainly they cannot improve the situation where the substantive right is of a dubious character. In general the creation of new courts is a very frequent expedient in reforms. Its popularity with politicians arises from the fact that it increases their patronage by providing new offices to fill. Changes in steps in procedure often have the curious result of increasing the congestion of the courts at least for some time. A great deal of litigation is often necessary to settle their effect. The fundamental puzzle of procedural reform is the indispensability of any one particular device. Since legal technique permits of a considerable degree of variance for the accomplishment of similar ends, it can be said that almost any form of procedure reasonably adapted to secure the fundamental purposes of the law will work if there is the will to make it work.
On the other hand, it must be remembered that men discharge their civil obligations and abstain from crime not only from fear of legal sanctions but also from moral and practical considerations. The modern tendency certainly has no forms of social control. Finally, it must be realised that even the defects of administration of justice, at least in civil matters, may have social value in discouraging litigation, in impelling them to exhaust the possibilities of conciliation. In an acquisitive society, it is perhaps desirable that the paths of litigation be strewn with a few thorns.
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