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Report No. 163

1.5. Importance of the subject.-

The Commission has been repeatedly voicing concern in its various reports about the quality of the justice delivery system in the country. Thus, in its 127th report on 'Resource Allocation for Infra-Structural Services in Judicial Administration - (A continuum of the report on Manpower Planning in Judiciary: A Blueprint)', the Commission observed as follows:

"1.1 Ever since men have begun to reflect upon the relations with each other and upon vicissitudes of the human lot, they have been pre-occupied with the meaning of justice and a popular belief has been that justice can only be obtained through court. That itself gives credence, credibility and respectability to the court system. But like any other institution, the system has to constantly justify its existence by rendering the service expected of it.

The moment it fails or falters, the credibility and respectability devalues. For a functioning democracy, court system, where justice is obtained even against the State, is a pre-requisite. Therefore, the court system, whenever it is under an unbearable load, requires thorough re-examination and its restructuring with a view to making it efficient, people and result-oriented. [Allen, quoted in the Report of the Labour Laws Review Committee, 4 (Government of Gujarat, 1974)]."

1.2 The Universal Declaration on Human Rights provides that:

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law". (Article 18, Universal Declaration of Human Rights approved by the General Assembly of the United Nations)."

Expounding the fundamental principles of justice underlying the Declaration, in another report, the Law Commission had observed as under:

"Equality is the basis of all modern systems of jurisprudence and administration of justice... In so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extent fail in their purpose. (LCI, 14th Report on Reform of judicial Administration)."

1.5.1. Failure on the front of providing adequate and easily accessible courts of justice is one of the principal causes of popular dissatisfaction with the administration of justice. This was voiced way back in 1906 by Dean Roscoe Pound in his famous speech as follows:

"The dissatisfaction stems from unmanageable backlog of cases, mounting arrears and inordinate delay in disposal of cases in courts at all levels lowest to the highest coupled with exhorbitant expenses. This has attracted the attention not only of the members of the Bar, consumers of justice (litigants), social activists, legal academics, Parliament, but also the managers of the court." (Quoted in H.T. Rubin The Courts: Fulcrum of the Justice System, 208).

1.5.2. The Commission in its 127th report also pointed out that the expression "access to justice" had different connotations. The road blocks in the access to justice could be high cost, geographical distance, adverse cost-benefit ratio and the inordinate delay in search of illusory justice. The State was responsible for removing all road blocks in the access to justice. Accordingly, the State should ensure that the system is equally accessible to all and should lead to the results that were individually and socially just.

1.5.3. The concept of access to justice has undergone significant transformation. Earlier, the right to judicial protection meant the aggrieved individual's formal right to litigate or defend a claim. It did not require active State action for this purpose. Their preservation only required that the State did not allow them to be injured by others. Relieving 'legal poverty', that is, incapacity of many to make full use of the law and institutions was not the concern of the State. (M. Capelletti Access to Justice, 6-7 (Book 1) (vide paragraphs 2.2 and 2.3 of the 127th report of the Law Commission, cited supra).

1.5.4. The procedure is the handmade to the substantive rights of the parties. [Sukhbir Singh v. Brij Pal Singh, (1997) 2 SCC 200]. Substantive laws determine the rights and obligations of citizens but the procedural laws, which are equally if not less important, prescribe the procedure for the enforcement of such rights and obligations. The efficacy of substantive laws, to a large extent, depends upon the quality of the procedural laws. Unless the procedure is simple, expeditious and inexpensive, the substantive laws, however good are bound to fail in their purpose and object.

1.5.5. Besides, as the Commission observed in its 114th report on Gram Nayayalaya, Chapter V, para. 5.3 that-

"5.3 It would be unwise to look at the problem from the point of view of court management only. In other words, it would be very imprecise to examine the matter from the aspect of ever-growing court dockets. Such an endeavour has to be guided by the aspirations proclaimed in the Constitution of India.

Article 39A of the Constitution of India directs the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. This is the constitutional imperative.

Denial of justice on the ground of economic and other disabilities is in nutshell referred to what has been known as problematic access to law. The Constitution now commands us to remove impediments to access to justice in a systematic manner. All agencies of the Government are now under a fundamental obligation' to enhance access to justice...."

1.5.6. Article 39A casts a positive duty on the State to so structure the legal justice system as to ensure that its operation promotes justice, on a basis of equal opportunity. To attain this object, the State has to pass suitable legislation or frame schemes to ensure that opportunities for securing justices are not denied to any citizen by reason of economic or other disabilities. Among other disabilities, courts situated at a long distance from the habitat of the citizens in search of justice itself would have a dampening effect on one's search of justice (see para. 2.4 of Law Commission of India, 127th report, supra).

Therefore, while bringing about reforms in the Code, it is quintessential to keep in view the above constitutional objectives.

1.5.7. Delay in disposal of cases threatens justice. The lapse of time blurs truth, weakens memory of witnesses and makes presentation of evidence difficult. This leads to loss of public confidence in the judicial process which in itself is a threat to rule of Law and consequently to the democracy. The rising cost of litigation can also be said to be attributable to delay which in turn causes the litigants to either abandon meritorious claims or compromise for a lesser unjust settlement out-of-court.

Besides, expression of society's moral outrage is essential in an ordered society that asks its members to rely on legal process rather than self-help to vindicate the wrongs. To avoid anarchy, fairness has to be actually felt by the aggrieved persons and it is the courts which provide the systematic outlet. Obedience to law has been described as the strongest of all the forces making for a nation's peaceful continuity and progress. (S. Shetreet The Limits of Expeditious Justice, Expeditious Justice, 1 at pp. 15) (vide paras. 2.15 and 2.12 of the 127th report of Law Commission of India, supra).

The Code of Civil Procedure (Amendment) Bill, 1997 Back

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