Take the case where a person dies leaving behind young children. They may have no idea as to what was his property, what was his interest, where was that property, and all that. If they file a suit somewhere, subsequently while going through the papers at their residence, they come across some more piece of supportive evidence to lay a better claim of something. Then, what will happen? I know, Section 153 could be invoked. About the deletion of these provisions. I would be grateful if the hon Minister clarifies that. But if we were to have all the rights to amend then why did we do away with these provisions? We should make an appropriate amendment there and retain these provisions. That is my humble submission.
Sir, here I agree with the hon. Minister. The best thing that I find in the present amendment is that henceforth, emphasis would be laid on the alternative dispute-resolution course. Sir, there was a time when the courts did not consider it acceptable. They did not even consider it acceptable to talk of the resolution of disputes otherwise than through their good offices. They would not tolerate anything. Then came the time when the law of arbitration came into force, and somehow that was also accepted. Well, certain disputes could be settled through arbitration, but as we know, many problems always cropped up, and that law did not really take off. But the law relating to arbitration, which we presently have on the Statute Book, is a good piece of legislation which was brought about four years back.
Sir, I think, now it will be a real refreshing change to find the courts first referring the matters to arbitration, conciliation, mediation, etc., and thereafter, in case, the matter is not sorted out or not solved, will come back to the courts again.
Certainly, recourse to arbitration over these long drawn court proceedings, as we have always experienced, bogged down by procedural wrangles would really be a good change in our procedural system. Sir, with this provision being incorporated in the Civil Procedure Code, I think, we can now look forward to a hassle-free, just and expeditious disposal of cases.
There is another good thing. There may be some need to make rules regarding refund of the court fee. In case, the matter is referred for alternative dispute resolution and it is resolved there, then elaborate rules have got to be made for that, that the court fee subtracting only the incidental expenses which are incurred on the arbitration etc., which, may be the arbitrator fixes himself, should be refunded. But that should not be more than the court fee. In all such cases, the court fee should be refunded forthwith to the litigants.
Sir, as we have again seen, the delays are also caused by the fact that a right has been accorded to the litigants to keep on challenging the orders of the court below, in the High Court -- appeal, appeal against that appeal, LPA, and then SLP in the Supreme Court etc. I commend this provision where the pecuniary limit for filing the second appeal is raised to Rs. 25,000. That is my first point.
My second and the most important point is about curtailing the right to appeal against the judgment of a single judge to the same High court. This is a good provision. This would certainly reduce the burden on the High Courts. Sir, I made a mention of the attitude of the Government while participating in the debate on the last Bill and I would like to reiterate that point again that today, undoubtedly, the Government is the biggest litigant in the country. It is no surprise that it is also the biggest loser.
Here again the hon. Minister would correct me if I am mistaken because my information is based only on the news items appearing in the media from time to time that over 90 per cent of the Government cases fail. Often we find that the individual and ordinary litigant is dragged to the courts in many many cases only as an ego trip of the concerned bureaucrat. They feel : "This man is challenging my order. All right. He has won in the first court and so I must drag him to the second court." This attitude of the Government has to change. The Cell within the Government may be fortified, may be expanded, may be strengthened. They should decide there and if an honest decision is taken, no honest officer need fear anybody when he is writing on the file that this case need not be proceeded with further and nobody would question him. Ego hassles may be the reason today, as I have said. The second is to pass on the buck " Why do I care? Why should I give some opinion that this case need not be taken further to the court? Why should not they? That is the responsibility and that is their duty to perform. If they feel that there is nothing in the case, they should not go for that." I think to change the environment regarding litigation in the country, the hon. Minister would really find support from all sections of the House and from outside also, if the Government were to decide that they cut down their expenditure on litigation and cases are not filed the way they are now filed. Perhaps we have never given a serious thought to it, but I am sure the hon. Minister would now come out with a litigation policy for the Government.
Sovereignty vests with the people. The State only represents the people and all its actions are to be for the ultimate good of the people. Why should, therefore, instrumentalities of the State keep preferring these appeals from one court to another? I would like to say - I have not moved an amendment to that effect - that the right to move files for filing an appeal should vest with an Officer only if he gives in writing the reasons for preferring an appeal in public interest. Of course, as I have said, the Government always proclaims that its avowed object is to work for the good of the people. I can understand if a case involves interpretation of law, it is fine and good enough, because that is in the public interest. But just now I have said, if an officer does not agree with a particular decision given by the court, on facts alone should be still file an appeal.
MR. CHAIRMAN : Please conclude now.
SHRI PAWAN KUMAR BANSAL : I have taken time to refer to this particular tendency. There are not many speakers from our side. Kindly give me more time. I would like to refer to one or two points before - going by your command and resuming my seat.
There is a provision made here that wherever there is a pronouncement of the judgment, the copy of the judgment would be made available simultaneously. This is a very good provision. But I do not know. I have only a lurking doubt in my mind that when the judge dictates the judgment in the court, does he make the pronouncement then and there only or not? If it is not, then it will be difficult to give the copy there and to know from when would the period of limitation start running because that provision is also being removed from the Statute Book about the time given to a person to obtain the copies of judgment etc.
One more good provision I must refer to is that there is a new provision for an inspection before the institution of a suit. This is a good provision. To avoid certain subsequent delays, a person can approach the Court immediately and the property about which he intends to file may be got inspected by a commission. This is a good provision.
It further says that the person who is competent to file a suit must file it within seven days. In the notes to the clauses of the Bill it is said that if that person is away some other member of the family may move the application. In that event, I think, this period has to be increased because if a person is away and somebody files an application, it would then entail the filing of the suit within seven days which may not be physically possible. Since the hon. Minister said that he would welcome suggestions, this is only a suggestion because it should not work as a hardship on a person wanting to file a suit subsequently.
To conclude, I would only say that a good beginning has been made as far as the Code of Civil Procedure is concerned. A similar approach is immediately called for regarding the disposal of criminal cases also. It is a pathetic situation that for very petty offences people rot in the jails for years together. Matters are not taken up for long periods of time. For the smallest discrepancy, the person has to remain behind the bars as undertrials. For very small offences, for which even the possible duration of sentence might have run out, they are not able to come out. Since today's matter relates only to the Code of Civil Procedure, I do not want to refer to that but I would, as a passing reference, urge the hon. Minister to immediately bring forth an amendment to that effect also. I would also urge the hon. Minister at the same time to desist from the tendency overtaking the Government today that whenever you make some law, you provide for elaborate procedure therein. I can understand that it is called for in some special cases. Otherwise, we should stick to the simple laws which are easy to understand and administer and avoid making multiplicity of procedural laws.
With these words, I welcome this piece of legislation. I support the Bill requesting the hon. Minister once again to kindly refer to my doubt about the amendment of pleadings.
SHRI VARKALA RADHAKRISHNAN (CHIRAYINKIL): Sir, generally, I have to support the Bill in the sense that it is a partial attempt to prevent the delay in the administration of justice. How far will we succeed in this present attempt is a matter to be seen. It is, as I said, only a partial attempt. I wish the Minister all success but there are many more things to be done here.
The judiciary, as a whole, will have to be reconstructed. The delay is not procedural alone. It is due to some other reasons as well. Now, in the first case, it may be borne in mind that the appointment of judges to the higher judiciary is one of the convincing reasons for the delay.
If I remember correctly, in a statement by the hon. Chief Justice of India, at present, there are about 154 vacancies left in the various High Courts and only about 40 cases are under active consideration. The remaining about 114 are still undecided. That is the experience of the higher judiciary. Then, with regard to the lower judiciary, the position is entirely alarming and if I remember correctly, the lowest judiciary ratio is in India.
There is nothing to be compared between the population and the process of judicial arbitration. So, I would request my hon. friend, the Law Minister to bring in a legislation for speedy disposal of cases. I was a lawyer for over 40 years and I have my own bitter experiences. I had come across many civil cases which were filed during the British period and pending for decision for over 50 years. That was my experience. This must be the experience of so many people throughout India. So, we will have to change the system as a whole. We are following the Anglo-Saxon jurisprudence; it is not suited to our country.
Even today we are basing many decision on oral evidence. Collecting oral evidence is a cumbersome affair. We will have to change the evidence system as a whole. The Indian Evidence Act which is the primary method of deciding cases is outdated. We are on the threshold of the new millennium and we will be governed by the rules of computers. We will have to admit as evidence even the technical data, now that the information technology is available.
I welcome the move which was just made by the Minister of Parliamentary Affairs, for inclusion of evidence given by computers. It is quite welcome. In our country, evidence is admissible only in a restricted sense. Hearsay evidence is inadmissible and oral evidence will be admissible only when the person giving evidence has the firsthand knowledge. These are some of the matters which require immediate attention and immediate remedy.
Another aspect that I would like to bring to the kind attention of the hon. Minister is that the judicial powers will have to be decentralised. We are living in an age of decentralization. You know that we have changed the system as a whole in the Executive by three-tier Panchayati Raj system. By that, we have decentralised the Executive powers to a very large extent. But even today, the judicial powers are centralized. For redressal of a grievance of an individual, one has the course open even to approach the Supreme Court.
I would suggest that disputes between individuals can be settled at a lower level. Why should he go to the Supreme Court? Only matters related to involvement of individual freedom or fundamental rights or the basic structures of the Constitution, should go to that Court and then only there would be some meaning in taking them to the Apex Court. There are matters like property disputes or other disputes between individuals which are being unnecessarily taken to the Supreme Court as well as to the High Courts which takes a number of years to their disposal. So, such things should be prevented and avoided by decentralizing judicial powers.
Decentralization will not hurt the feelings of the Apex court because if everything goes to the Apex Court, it would be detrimental to the interests of the democratic set up in our country. So, I think, the hon. Minister would consider the aspect of decentralization of powers. In that direction, I may submit that I agree with the present Government's proposal for appointment of a Judicial Commission.
The Judicial Commission is quite essential at present because the appointment of judges are left entirely to the Apex Court as well as the higher judiciary. The system should change. It is for an independent agency; it must be a Constitutional agency with full powers of appointment to the higher judiciary; and I feel that even transfers should be referred to the Judicial Commission. So, I would request the hon. Minister to bring in a legislation for the appointment of a Judicial Commission without delay.
In the present context, I may draw your attention to the fact that recently there is an attempt by the highest Judicial body to evolve a Code of Conduct. According to them, that Code of Conduct would be an in-house procedure, it does not have legal sanctity and it does n
not have any legal basis. The judges themselves would sit together and decide as to how they should act in future. It does not have any bearing on the society. The in-house procedure is not sufficient. That is why, the appointment of Judicial Commission is the most essential at present. That must have led these people to think in terms of Code of Conduct. At the same time they say that it would be an in-house procedure. But it is not acceptable.
We are still following the Contempt of Court Act. It is giving a blanket protection to the judiciary as a whole. They can do anything. The judiciary can act in any manner it likes. The citizens have no voice to make even healthy criticism. It is not permissible. In America, judges could be criticised, their actions could be criticised, and even their judgements could be criticised, but in India nobody is allowed to criticise the judgement or the absence of the judges in their official capacity. They are beyond criticism. The Contempt of Court Act is a colonial Act. Why should we not change this Act? It is unsuitable to the democratic constitution. So, we have to take immediate steps and amend the present Contempt of Court Act. Then only can we speak about judicial accountability. If we retain the Contempt of Court Act, how can we speak about the judicial accountability? So, we have to change the Contempt of Court Act basically to make the judges accountable to the society. No democratic society will give a licence to judiciary to act in whatever manner they like to act. I appreciate and applaud the position taken by the judiciary in many ways. They upheld the provisions of the basic features of the Constitution. In all these respects, the judiciary has to be commended. But that would not be a ground for holding that the judiciary is unaccountable. I would say that the judiciary also is accountable.
In this background, I may be permitted to make certain suggestions. Now, under Section 89 you have three choices, viz. arbitration, conciliation and judicial settlements, including settlements through Lok Adalats and mediation. What I would like to suggest is that, it should lead to further delay in providing justice. If the cases are referred to to a particular authority and, suppose that authority finds that it is not within its jurisdiction, it sends the cases back. So, transferring the cases once again would cause delay and we have to prevent that delay. Please make some provisions in the rules that cases once delayed should not be re-transferred without proper and valid reasons. It should not be a delaying tactics. Municipal Courts or judges will send the cases to the Arbitration authority or the Adalats and the Adalats, on finding it difficult to settle them there, will send them back which would cause further delay in settling the cases. So, the purpose for which this amendment is passed will be defeated. So, I would suggest that there must be some safeguards with regard to the application or enforcement of Section 89. There must be safeguards to prevent the delay.
So far as appeal by the Central judge is concerned, I would say that we all live in a society. We are all human beings. We have our own feelings. We have our political leniency. A judge is a person who comes from a particular State under a particular political influence. He will have his own feelings. Suppose a judge is giving a judgement in a writ petition, where can one appeal? We can appeal to the Division Bench. Division Bench can correct if at all there is any illegality or irregularity. But what is the remedy when that is taken away in certain cases? Petition must be maintainable in the Supreme Court and the writ petitioner should show that there is illegality with regard to the decision. Beyond that he cannot act. But this happens very rarely. So, I would suggest that we should make a comprehensive provision in the sense that a single judge's decision is not appealable. We will have to make some safeguard.
You have adopted the most important procedure of filing an Affidavit. In our State, we know what sort of Affidavits have been filed by the different Chief Ministers from time to time. The Minister is quite aware of it. So, if a case proceeds on the basis of an Affidavit being filed, it is not at all commendable. Moreover, in this context, I may add that Notary Public is all right to record evidence or act as commissioner in taking evidence. But that has to be followed with abundant caution because there are a number of complaints about the Notary Public. If they are given power to take evidence, it will make the decision-making process most difficult.