24/04/2016
Last week, the Supreme Court of India penalised two companies with Rs25 lakh each for resorting to delaying tactics and in the process wasting valuable time of the courts. This amount is unprecedented and is a definite positive signal towards ushering in a new era of timely delivery of justice. However, it raises the fundamental question: Who is to be blamed for delaying the final decision – one of the parties, both the parties, lawyers, judges, law or entire system?
The Supreme Court observed that the matter had been pending for almost 20 years without much substance and real progress. Numerous appeals had been filed at different stages and access to the best of the counsel because of deep pockets, ironically, aggravated the problem of delay, rather than amicable settlement. Adjounments were sought and granted umpteen number of times.
Let us examine
Usually in any matter, one of the parties is not interested in faster resolution. It is very unusual for both the parties to delay the matter, and is typically experienced with the govenment being one of the parties, which may not at all be concened even with resolution, forget about faster resolution for a variety of reasons. Unfortunately, favouring the other party in consideration of certain monetary or non-monetary illegal and unethical benefits is one of the primary reasons for slowing the process by the govenment. Such matters are quite common and the court dockets are full of them.
If one of the parties is working towards fast disposal, in a fair litigation process, the courts do come forward and make all things possible for speedy decision making, however, the law provides for a large number of appeals and special leave petitions for the intervention of the higher courts at various stages. Appeal, as a matter of procedure, is generally as a matter of right, but, special leave petitions and other writ petitions are considered to be a legal remedy which depends on the discretion of the judge. Thus, the role of the judge is extremely important. Exercise of discretion is not a mechanical process; it involves application of the law to the facts and making a decision supposed to be the most optimal and rational decision in those circumstances.
In Skipper Construction vs. DDA case, decided by the SC about 20 years ago, the court had lamented that adjounments were granted mechanically and courts had often not exercised discretion judiciously. That case also had been languishing for a long time and several courts at all levels in Delhi. The lawyers in so many cases have been exploiting all the available appeals and truly speaking that is considered to be the job of a lawyer to find out all the possibilities in the substantive and procedure law and exhaust them before giving up. The deeper the pockets of the litigant, the higher are the chances of exhausting all the available options. It is akin to medical treatment. The more the resources available with the patient and his family, the more the efforts are to save him, even if he is in a vegetative state.
In such a scenario, it is the duty and responsibility of the judicial officer to be firm and strict, but at the same time humane and flexible, to ensure that the matter is not delayed inordinately. One of the serious reasons as to why it becomes at time for the judicial officers to act speedily is the ‘face value’ of certain lawyers. Some lawyers, due to different reasons – seniority, popularity, nuisance creators, activists and political affiliations – have much higher perceived face value and they take undue advantage of their position. Often, many judges play to the galleries and do not wish to take the risk of making hard decisions lest they should become unpopular. This is absolutely undesirable.
The law must not provide for too many appeals as was advocated by the first attoney general, MC Setalvad in 1952. Even Palkhivala had hinted for one and final decision to expedite the move towards certainty. The entire system needs overhauling, which can best be done by concerted efforts to the judges, lawyers and the legislature. Blaming and penalising only the parties for delay is not the right approach.
