Judicial System is responsible for burden on courts and delay in justice?

Yogesh Gupta, Advocate and Ishan Gupta, Advocate

What is major cause of over burden of courts?

In my opinion, the number of subordinate courts Arbitral Tribunals, presiding officer of Tribunals, Police officers do not follow the law declared by Hon’ble Supreme Court of India and Hon’ble High Courts. Judgment given by one judge of the Hon’ble High Court is not followed by other judge of the same court. Otherwise the other judge should refer the case to higher bench. The dual views of judges of the Hon’ble High Court also increase litigation in the lower courts. It becomes difficult for the judges of lower courts to decide cases because of different judgments of same points. The system is at fault which increase burden on court. The over burden of courts delay in justice. Delay in justice means loss of faith of public in judicial system.

How burden on courts can be reduced? 

The Constitution of India is very elaborate. The method to solve the problem is mentioned in the constitution of India. If we examine the articles of constitution, the solution becomes obvious. Article 141 of the Constitution is very important and same is reproduced as under: “Law declared by the Supreme Court shall be binding on all courts within the territory of India”

Once the constitution of India advised us to honour the law declared by Supreme Court of India then we should honour the same. Substantial role of the Supreme Court is of legal mentor of the nation. Constitution sanction is given to the binding nature of the judgments of Supreme Court of India, Judges, Arbitral Tribunals, Presiding Officer of Tribunal, whatever their own view, must follow the decisions of Hon’ble Supreme Court. The decision of Supreme Court is binding not only under Article 141, but also under the doctrine of binding precedent. The moment a judgment is pronounced by the Supreme Court, the law is declared and everyone is supposed to know the law. The law laid down by Supreme Court cannot be ignored merely because party to a suit was ignorant of it or failed to plead or refer to it before court. Departure from law laid down by Supreme Court by calling Supreme Court decision as per incuriamimpermissible for any court except the Supreme Court of India. Where the pronouncement of Supreme Court is clear on a point and suffers from no ambiguity then the law laid down by Supreme Court act as precedent.

It is the duty of every advocate and legal minded person to advise the litigants not to file appeal against the order of subordinate court if the order is according to law declared by the Hon’ble Supreme Court of India. If the judgment of subordinate courts are contrary to law declared by Hon’ble Supreme Court then litigant will definitely file appeal and same will definitely over burdened the appellate courts unnecessarily. The over burden of appellate courts delay justice. The appellate courts usually remand the case to lower courts for fresh decision if the judgment is not according to the law laid down by the Hon’ble Supreme Court of India.

The Hon’ble Supreme Court of India declared in case of Maharwal Khewaji Trust Vs. Baldev Dass, “Temporary Injunction cannot be declined on the basis that alienation will be subject to law of lis pendens. Courts should not permit the nature of property being changed which also includes alienation or transfer of property which may lead to loss or damage being caused to the property who may further leads to multiplicity of Proceeding”. If the judgments are followed in letter and spirit by all subordinate courts then it will definitely stop the multiplicity of litigation.

The legal advisors are appointed in every department to give opinion, example legal advisors to SSP and IAS Officer. Police officers register number of cases against law. Many persons adopt coercive method to enforce the civil liability. Number of wrong cases were got registered in Punjab against Rice Millers although the dispute is of civil nature. Milling agreement for paddy was executed between food procuring agency and rice Millers. There is a penalty clause in the agreement. There is also an arbitration clause in the agreement. The Hon’ble Supreme Court of India hold in caseBal Kishan Dass Vs. PC Nayar 1992(2) CCC 79. “Where there was an arbitration clause in the agreement between parties in the matter of procurement of paddy and rice by the petitioner to the respondent and arbitration proceedings in the matter ending and that having regard to all circumstances the matter is purely of civil nature”.

 The Hon’ble Supreme Court recently again held in 2005(1) RCR 727 in a case titledKailash Verma Vs. PUNSUP “Govt. department entrusted paddy to accused for shelling. Accused did not return the rice as per agreement. It is a dispute of civil nature. No offence under Section 406 IPC is made out”.

In spite of the clear law declared by Supreme Court of India, the police officers registered number of cases against millers and presented challan in courts. The courts framed charge in number of cases by mentioning in the order that the facts are distinguishable although facts are similar. It causes burden on courts because rice millers file revision against charge and petition under Section 482 Cr.P.C. The cases of miller over burden the Hon’ble Punjab & Haryana High Court, Chandigarh. The Hon’ble Supreme Court of India should enquire the matter in the interest of public so that faith of public in judicial system remains. 

The Hon’ble Supreme Court of India has given a very good judgement after discussing the previous judgement on excepted clause of arbitration agreement. The matter comes under excepted clause of agreement are outside the scope of Arbitrator. The Hon’ble Supreme Court of India declared in F.C.I. Vs. Surindera, Devindera and Mahindera Transport Company in 2003(1) PLR 843 “ Matter which were excluded under the agreement should not be referred to the Arbitrator”.  Inspite of the clear law, such type of disputes which cover under excepted clause of the agreement usually referred to the Arbitrator.  The Arbitral Tribunals are not following the judgment of the Hon’ble Supreme Court of India.  The result of non following of law of Supreme Court is that number of applications for setting aside award under Section 34 of Indian Arbitration and Conciliation Act are pending in Principal Civil Courts in Punjab and appeals are also pending before the Punjab & Haryana High Court against order passed on application under Section 34 of Arbitration and Conciliation Act by principal civil courts.  This judgment is also not followed by number of judges. 

The Government should amend the provisions of Order 21 of CPC regarding execution.  Consumer Protection Act is a very good act for the purpose of execution because judgment debtor could be convicted under Section 27 of Consumer Protection Act for non-compliance of the order of Consumer Forum.  It is also necessary that similar provisions should be made in C.P.C.  The amendment in C.P.C. is very necessary in judicial system so that decree of court could be executed within a reasonable time.  It is also necessary to make amendment in Contempt of Courts Act. The person who fails to comply the order of the courts and also the officer whosoever does not follow the law declared by the Hon’ble Supreme Court of India, should be punished under Contempt of Court Act.  The amendment in Contempt of Courts Act will definitely reduce the burden of courts and will create faith of public so that litigant may give respect to courts as is given in number of foreign countries. The burden of courts is also increased due to non-appointment of Government Pleaders by the Government.

The latest judgment pronounced by the Hon’ble Supreme Court of India on Section 326 Cr.P.C summarizes procedure of trial is not followed that it is illegal. The basic law has been laid down by the Hon’ble SC of India in AIR 1962 SC 690. It is mentioned in para no.14 of the judgment that successor magistrate has no authority to proceed further from the stage the previous magistrate left. This is not irregularity but want of competence as held in para no.15 of the judgment. The supra judgment was followed in 2011 (4) RCR (Cr) 148. The trial court and the Hon’ble High Courts are bound by the aforesaid judgment. Nobody has any power to distinguish the same. The courts are bound to follow procedure prescribed in Section 262 to 265 Cr. P.C. It is mentioned in para no.17 of the judgment 2011 (4) RCR 148 that if trial is conducted in different manner from that prescribed in code, the trial is bad and no question of curing and irregularity arise. According to Section 461 (M) Cr. P.C, the proceedings conducted by the successor magistrate are deemed to be void but now courts are not following the basic provisions and the law laid down by the Hon’ble Supreme Court of India. There are number of litigations pending before the Hon’ble High Courts in this respect which also increase burden on courts.

I appeal to all my colleagues and litigants to give the instance where the law declared by the Hon’ble Supreme Court of India was not followed by Subordinate courts, Arbitral Tribunal, Police Officers or by any other person so that we bring the matter into the notice of the Hon’ble Supreme Court of India.  I also request to the Hon’ble Supreme Court of India to issue guide lines in this respect and direct to the Government to frame law in this respect.  Amendment in Contempt of Courts Act is also necessary to implement the judgment of Hon’ble Supreme Court of India. I hope that burden of court will definitely reduce upto 25% within a year if the judgement of Hon’ble Supreme Court of India is followed by every institution.