Denial of Justice

Dinesh Singh Chauhan
As it is, pending litigation has been a pandemic too. Nani Palkhivala once said, “Law may or may not be an ass; but in India it is a snail – it moves at a pace which would be regarded as unduly slow in a community of snails.”
In our adversarial system in preference to the inquisitorial system arguments by counsel have a key role to play in discovery of truth. The Bar, the professional instrument of presentation of cases, is indispensable in the forensic process. As Brandeis observed; ‘For a Judge rarely performs his functions adequately unless the case before him/her is adequately presented.’ The great Holmes put it neatly; ‘Shall I ask what a Court would be unaided? The law is made by the Bar, even more than by the Bench.’
It is clear that the best Judgment is the product of the finest submissions at the Bar. In this sense the lawyer is an officer of the Court and is an integral to the administration of Justice. A good Bar is a great [art in justicing and, therefore, must be given a high place in the fulfilment of the right to Justice which is fundamental to all fundamental rights. The Bench without the Bar is as bankrupt in the delivery of Justice as the Bar without an intelligent, impartial and independent Bench to hear and decide. The right to Justice is inherent in every citizen; even the devil has that right.
When arguments are concluded and the Judgment Reserved is delayed, the litigant’s expectations darken into depression. Then that depression turns into dreaded or frightened feelings, which transform itself into despair and despair evolves into explosive frustration. Judicial discipline requires promptness in delivery of Judgments – an aspect repeatedly emphasized by this Court. If delay in pronouncing Judgments occur on the part of the Judges of the Subordinate Judiciary, the whip of the High Court studded with supervisory and administrative authority could be used and it had been used quite often to chide them and sometimes to take action against the erring Judicial Officers. But what happens when the High Court Judges do not pronounce Judgments after lapse of several months since completion of arguments? The Constitution of India did not provide anything in that area presumably because the architects of the Constitution believed that no High Court Judge would cause such long and distressing delays. Such expectation of the makers of the Constitution of India remained unsullied during the early period of the post Constitution years. But unfortunately, the later years have shown slackness on the part of a few Judges of the Superior Courts in India with the result that once arguments in a lis concluded before them, the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the Judges forget even the fact that such a case is pending with them expecting Judicial verdict. Though it is an unpleasant fact, it is a stark reality.
In 1961, Hon’ble Judge of the Patna High Court expressed his anguish when a Magistrate took nine months to pronounce a Judgment. The words used by him for expressing his Judicial wrath is the following:
“The Magistrate who cannot find time to write Judgment within reasonable time after hearing arguments ought not do any Judicial work at all. This Court strongly disapproves the Magistrates making such a tremendous delay in the delivery of his Judgments.”
Further, the Hon’ble Supreme Court in [“Anil Rai Vs State of Bihar”, 2001 (7) SCC 318] deemed it appropriate to provide some guidelines regarding the pronouncement of Judgments, expecting them to be followed by all concerned under the mandate of the Hon’ble Supreme Court of India, wherein, two Judges of the Patna High Court took two years for pronouncing a Judgment after concluding arguments when the parties were languishing in jail, the Counsel appearing in Hon’ble Supreme Court in challenge of the said Judgment asked in unison whether the exhortation made by the Patna High Court in 1961 is not intended to apply to the High Court.
Sethi, J., enumerated them succinctly as follows:
“(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the Judgment is reserved and is pronounced later, a column be added in the Judgment where, on the first page, after the cause-title date of reserving the Judgment and date of pronouncing it be separately mentioned by the court officer concerned.
(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the Judgments reserved are not pronounced within the period of that month.
(iii) On noticing that after conclusion of the arguments the Judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the Judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.
(iv) Where a Judgment is not pronounced within three months from the date of reserving Judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early Judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.
(v) If the Judgment, for any reason, is not pronounced within a period of six months any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.”
Judgments reserved and not delivered get piled up, to the eternal prejudice of the litigant public. Tapping into the portals of the Madras High Court, one is rudely reminded of a Circular of 2014 Vintage, issued at the instance of then Chief Justice Sanjay Kishan Kaul (now a Puisne Judge of the Supreme Court). In that Circular, Court Officers before the Principal Bench at Chennai & the Madurai Bench were directed to mention the dates on which orders were reserved and the dates of their pronouncement, immediately after the cause titles of the cases.
Interestingly, the Circular was in the ‘wake’ of a Judgment of the Hon’ble Supreme Court of India dated August 06, 2001. The Circular was not contemporaneous, affording enough breathing space to the law lords.
Conclusion
Adverse effect of the problem of not pronouncing the reserved Judgments within a reasonable time was considered by the Arrears Committee constituted by the Government of India on the recommendation of the Chief Justices’ Conference. In its report of 1989-90 Chapter VIII, the Committee recommended that reserved Judgments should ordinarily be pronounced within a period of six weeks from the date of conclusion of the arguments. If, however, a reserved Judgment is not pronounced for a period of three months from the date of the conclusion of the arguments, the Chief Justice was recommended to be authorised to either post the case for delivering Judgment in Open Court or withdraw the case and post it for disposal before an appropriate Bench.
It is true, that for the High Courts, no period for pronouncement of Judgment is contemplated either under the Code of Civil Procedure or the Criminal Procedure Code, 1973, but as the pronouncement of the Judgment is a part of Justice Dispensation System, it has to be without delay. In a country like ours where people consider the Judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eye-brows, some time genuinely which, if not checked, may shake the confidence of the people in the Judicial system. A time has come when the Judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the Rule of Law. For the fault of a few, the glorious and glittering name of the Judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy Justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted Justice.
As the saying goes, “Never waste a good crisis”. If all reserved Judgments could come tumbling out, as if in an assembly line, Justice may be done to We the People.
(The author is J&K Court of Judicature, Jammu)

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