Legal Reforms will remain a mere Utopian Dream

Right from the President of India, the Prime Minister, the Chief Justice of India, from everyone, today we hear about the urgency of reforming our legal systems. The talk of the need of legal reforms has been there on the focus for the last many decades. However, we could only make little progress. We have changed some of our laws through legislature. However, they are mere ripples.

How is not that we are not able to move ahead in tune with the changing times. In every field of activity we are witnessing rapid improvement and changes. The service sector has seen unbelievable changes in the last one decade; so also in the manufacturing sector. However, the legal system refused to change with the times. Why? The answer, to my mind, is in the attitude of those who deal with the system; primarily, the Lawyers and Judges. The Lawyers are still slaves of the past. They are not able to come out of the bondage of their attitudes which are out of the times. Recently, the Bar Council of India resolved that henceforth Judges of the Supreme Court and the High Courts could be addressed as Your Honour or simply Sir. If anyone thinks that adoption of such a resolution by all the Bar Councils is going to change the mode of addressing the Bench they are mistaken. Thirty years before, the Supreme Court/Bar Council of India took a resolution on similar lines. But, nothing happened. It is not that the form of addressing the Bench is that important. It is largely only symbolic of the servile / feudal attitude the Bar by and large embraces, pitifully voluntarily. One must visit the Courts in Cochin or Chennai to see to their eyes the agony of a Lawyer in black coats and gowns sweating at a level of humidity of 95 at temperatures above 35c. They undoubtedly suffer. But, the pity is that they do so willingly. There has been some stray demand from among Lawyers themselves for dispensing with the band, black coat and gown, or at least the gown; at least in the lower Courts. However, people who asked for such change were consigned to the sidelines painting them maverick. 90% of Lawyers, if not more, want the black coat and gown to continue though absolutely out of tune with the tropical climate. One feels miserable when coming across young Lawyers in Madras and Cochin wearing bush coats inside their black coats proudly.

Legal drafting has changed the world over. Everywhere the emphasis is on writing in simple and lucid language which an ordinary man can understand. However, we have refused to change. The tragedy is that we are even going back to archaic forms. It is the case right from the lowest Court to the Supreme Court. In the Magistrate Court, the pleadings start with the words ‘Your Worship’. In the Supreme Court it starts with ‘most humbly showeth’. The Writ Petitions in the High Courts and the Special Leave Petitions in the Supreme Court run to hundreds of pages; Starting with index, synopsis, list events, questions of law, grounds, prayer etc. In many cases, the synopsis which runs into many pages is the entire Writ Petition/Special Leave Petition itself. With the influx of the computer era and with the easy technique of ‘cutting and pasting’, the very same synopsis is converted as statement of facts, grounds etc. In short, the Writ Petition/Special Leave Petition with annexure runs into hundreds of pages making it impossible for the Judges to read. High Courts like Kerala were following a much simple system at least in the case of Writ Petitions compared to chartered High Courts like that of Mumbai or Kolkata. It did not have the menace of a synopsis and a list of dates till recently. Might be the simplicity of procedure that gives the Kerala High Court the dubious distinction of the High Court with the largest number of Writ Petitions filed. While less than 7000 writs are filed in the Mumbai High Court, more than 40000 are filed in the Kerala High Court!

The High Court of Bombay is one of the earliest High Courts in India. The procedure then adopted continues even today without much of a change. For instance, a litigant has to come to the High Court premises and swear before the Proto Notary every Affidavit/Petition he files. Sometimes, in the course of a single case he may have to appear before the Proto Notary for swearing an Affidavit as many as 5 to 10 times with each notice of motion or interlocutory application. Despite demand for change, feeble though, this system continues. Instead of the Prothonotary the affidavit could be attested by an advocate as is done in other High Courts.

The citizen is crying foul of the inordinate delay in Courts. Adjournments are generally believed to be the villain. It might be; but cannot be entirely. While in the High Courts of Kerala and Delhi, if a Writ Petition is filed with an urgent motion, it is ordinarily listed for admission on the next day. In the Bombay High Court, such a Writ Petition will not come up for admission for months if not for years. One has to move a notice of motion. While moving such a motion, he has to serve notice to all who are arrayed as Respondents. Still unless you physically follow it up, it will not reach. And if it does not so reach on the particular day for which notice was given, the Petitioner has to give fresh notice and produce proof of such notice. When one needs emergent orders, after serving such notice of motion by filing a precipe, the Petition can be brought to the Bench and seek relief. In actual practice, however, the case is not heard, but only a date for hearing is given. But the hearing of such Petitions mostly for the purpose of fixing a date of hearing itself consumes lot of time, though wholly wasteful. In short, the procedure is so cumbersome and litigant unfriendly that only very few people would venture to file a Writ Petition. It may have an incidental benefit like most calamities have. That might be the reason why the High Court of Bombay on its original and appellate writ jurisdiction taken together has less than ¼ numbers of Writ Petitions of the High Court of Kerala.

If one were to elaborate on the procedures which have become absolutely obsolete that exist in the Courts in India, it may run into volumes. Like our inability to do away with the menace of dowry and other social evils, the legal reforms are not going to be an easy walk. Since Lawyers and Judges are the lynchpin of our legal system, unless attitudinal changes take places in them, the legal reforms will be a slow process.

Author : M J Nedumpara