Is there a time bar for justice?

I remember being aware of a case which was pending since more than 20 years, in which the dispute between the plaintiff and the defendant was whether the pathway to a temple atop a hill should be through the plaintiff’s property or the defendant’s property, which were both contiguous.

Both sides contended that the pathway should be through the other’s property. By the time the case came up for recording of evidence to ascertain the credibility of the case of both sides, the plaintiff and the defendant were both dead and the dispute no longer survived, as the hill on which the temple was located had been razed to the ground. Hence there was no temple, no hill, no plaintiff and no defendant!

Ironically, therefore, when the Court had the time to examine which of the two contesting parties it should hold in favour of, there was no dispute and no one left to fight. So, when the case was taken up for final disposal, the judge happily beamed and said “dismissed for non-prosecution” and that was the end of the case.

In the Bombay High Court, when I started practice more than 25 years back, it was common to find the next generation carrying the burden of cases on behalf of their parents.

When I recently requested a single judge of the High Court to take up a case which was filed in 1985 on a priority basis and give some fixed date for commencing with recording the evidence of the plaintiff, the judge looked at me sheepishly and told me that there were cases of earlier years that were still languishing in his Court and formed part of his roster.

I had no words to plead with him any further. 

Over the years, the backlog of pending cases has only increased with no effective final redressal of cases for the litigants. Soon a time will come when the persons before the courts would be prosecuting cases filed on behalf of not their parents, but their grandparents. Then they will be asked “How much of the case is to your personal knowledge?” after which some technical rules of evidence will be pressed into service and the case will be dismissed.

Is this effective justice? Justice delayed is justice denied! Is this something which is only to be taught to the law students and not to be viewed seriously to warrant some constructive steps to ameliorate the plight of litigants?

Whilst some of our judges work very sincerely, we need to look for more effective solutions for ensuring that the redressal of grievances takes place in a timely manner. If a man is thirsty and is crying for water, one needs to quench his thirst soon by giving him water to drink. Is there any purpose of sending a truck full of Bisleri bottles to the crematorium after he died of thirst?

Is there no time limit for delivering justice? Isn’t inordinate delay a travesty?

I am of the firm belief that there is sufficient talent within the system which can and ought to be tapped and used to reduce the delays which our present legal system is burdened with.

Perhaps one effective way of addressing the issue of curtailing backlog, particularly in the Bombay High Court, and in reducing the long time which it takes to get a final adjudication in court matters, is to devise a system whereby certain respected and senior members of the Bar are made to act as temporary judges.

Such temporary judges can be assigned a particular number of cases or be made to act as temporary judges for fixed durations with instructions to dispose of the cases assigned to them. Our Constitution in fact is conscious of this mechanism (Article 224-A), but in practice, this Article remains a rarely used provision.

This is not a suggestion which has never been tried earlier but one that was adopted in India prior to Independence and continues to be used in other jurisdictions. In our country, during the British times, we had established and distinguished advocates and barristers who were appointed to the bench as temporary or ad-hoc judges. Can the feasibility of presently re-introducing this system not be seriously considered?

The legal system is to resolve disputes and, in a sense, caters to the litigants. Should the legal system then not be a system which is primarily concerned for the litigants and not for lawyers and judges? 

The recent gesture by the erstwhile Chief Justice of India BR Gavai and some of High Court judges in setting up the Kolhapur Bench of the Bombay High Court is laudable. It empathises with the difficulties faced by litigants from the districts of Southern Maharashtra who had to travel all the way from their hometowns to Mumbai to pursue their matters before the Principal Bench of the Bombay High Court.

One hopes that this is only the first step towards overhauling the judicial system and successive steps will be taken with the same speed.

I request those at the helm of affairs to do some serious introspection and not be under an erroneous impression that merely because people bow before them, the system is justified in administering justice to a privileged few expeditiously whilst denying justice to the many unprivileged for unduly long.

At the end of the day, if a litigant goes home with the feeling that he waited and waited and was never heard, this sentiment does not reflect on the merits of his case but on the credibility of the institution which is supposed to decide the merits of his case.

KG Munshi is a senior advocate practicing in the Bombay High Court.