Report No. 131
3.11. Therefore, the first step that is required to be taken is not to encourage litigation but to reduce litigation. The role of the legal profession is to resolve disputes and only in the last resort the matter should be permitted to go to court. "Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time. As a peace-maker, the lawyer has a superior opportunity of being a good man.
There will be business enough."1 The role of the lawyer is clearly spelt out here. From the accusation that the lawyers perpetuate disputes, the members of the profession must undertake discouraging litigation, persuade parties to compromise, and impress upon the parties how futile is the litigation. There could not have been a better summing up of the role of lawyers.
1. Abraham Lincoln, as quoted in The Terrible Truth About Lawyers by Mark H. McCormack, page preceding preface.
3.12. This very aspect has been put in a different form when it is said that the slogan of the members of legal profession should be 'arbitrate, don't litigate'. Undoubtedly, there is a body of opinion that arbitration proceedings may be disastrous in character.1 This extreme statement even about arbitration proceedings need not discourage the members of the legal profession because arbitration as a mode of resolution of disputes by a Judge of the choice of the parties was considered preferable to adjudication of disputes by courts.
Viewed from this angle, it has already been recommended that as soon, as a notice making a claim is served, the other side should nominate a lawyer and both the lawyers should meet and try to resolve the dispute or narrow down the area of conflict and this will be their both statutory and professional obligation.2 And this approach enhances the role of the legal profession and affords it a vital role at the most preliminary stage even before the courts step in to resolve the dispute and thereby to eliminate litigation.
1. SJ & M.M. Price Ltd. v. Milner, (1966) I WLR 1235.
2. For a more elaborate discussion of this aspect of the matter, see LCI 129th Report on Urban Litigation-Mediation as Alternative to Adjudication, para. 5.14.
3.13. There is widespread belief, both among the litigating public and legislators, that intervention of lawyers in court proceedings have the built-in tendency to delay the disposal of cases. In other woi -is, the dilatoriness and prolixity of the proceedings in the court are being attributed to the members of the legal profession. Expeditious resolution of disputes is one of the fundamental requirements of any effective and efficient system of administration, of justice. Today, unquestionably, that the cases in the Supreme Court are pending from 1968 onwards and in this year they have become two decades old.
Even criminal appeals of 1975 are pending in the Supreme Court. Similarly, in the 18 High Courts, 30,970 civil cases and 615 criminal cases over 10 years old are pending as on 1-1-1987.1 Can anyone be expected to wait for a generation in search of justice? Any system which delays disposal of cases or resolution of disputes over decades can be said to have outlived its utility. The system may need basic changes but, without minimising and law were raised, the same must enter the verdict and quantify the time spent in resolution of disputes.
1. Reply to Unstarred Lok Sabha Question No. 2561 dated August 12, 1988 by Minister of State in the Ministry of Law and Justice.
3.14. It is an oft-repeated suggestion that the lawyers must be excluded from appearing before certain tribunals and certain types of cases. This is sought to be justified by reference to a provision like sub-section (3) of section 36 of the Industrial Disputes Act, 1947, which provides that no party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceeding under the Act or in any proceeding before a court. There are similar provisions in some other statutes, more especially statutes dealing with agrarian reforms. The Law Commission does not subscribe to this view. Appearance of the members of the legal profession provides a healthy check on the angular behaviour of the presiding Judges.
The presiding Judges may be able to control the members of the legal profession and vice versa. The role is complementary. The experience of excluding members of the legal profession from appearing in certain proceedings has neither contributed to the expeditious disposal of cases nor to a more satisfactory solution of disputes. Therefore, exclusion, is not the answer.
The accountability of the members of the legal profession, while appearing in proceedings and dealing with the same, will provide a healthy check on the possible dilatory tactics some times resorted to in some need-based litigation, such as a position of a tenant under the Rent Act who is under a threat of eviction or the position of an employer when a dismissed employee is likely to be reinstated. Even here, the dilatory tactics should be completely eschewed. And, for this purpose, the hands of the presiding officers should be strengthened by appropriate provisions so that this tendency to delay the disposal of the cases may be effectively controlled.
3.15. Another tendency which has become very recently visible, especially where pleadings are drawn up for Mofussil Courts, is to raise all and sundry, frivolous arid untenable points of facts and law. It would be difficult to come across a single pleading in the Mofussil Court where a dispute as to court fees and as to limitation is never raised. They are the standard defences. This is attributable to excessive dependence on seniors as well as para-professionals by the new entrants into the profession who are trained in the old worn out methods of drawing up pleadings. 'In the first case it is often oppressive and in the second case it is invariably degrading to the new entrants.
In either event, to become independent from this occupational cobwebs, the new entrant into the legal profession has to have a long gestation period.'1 Longer the gestation period, the fear that he will absorb all the worn out techniques of the profession becomes real. It is, therefore, necessary for the Bar Council to provide for a training period before being enrolled as a lawyer for the new entrants to the profession in subjects of drafting, cross-examination, court manners and making precise and accurate statements before the court.2 Some of those subjects meant for training of judicial officers can be well adopted for training the new entrants to the profession.
1. T.K. Oommen The Legal Profession in India: Some Sociological Perspectives, in N.R. Madhava Menon (Ed.) The Legal Profession: A Preliminary Study of the Tamil Nadu Bar, (1984), p. 3, paras. 5.6 and 5.7.
2. For fuller exposition of this aspect, reference may be made of LCI, 117th Report on Training of Judicial Officers.
3.16. For a positive check, while deciding the cost quantum to be awarded one way or the other, the presiding Judge must also certify whether untenable and frivolous defences were raised, necessitating flaming of the issues on which parties were at variance and the time spent in recording decisions on them. If the presiding Judge is satisfied that such frivolous and totally untenable defences with regard to facts and law were raised, the same must enter the verdict and quantify the costs to be awarded.
3.17. Recording of oral evidence consumes too much time. It is often noticed that large number of witnesses are examined on the same point the cross-examination is prolix, rambling, partaking the character of a fishing expedition. Multiplicity of witnesses on the same point, coupled with cross-examination by way of rambling fishing inquiry, accounts for consumption of courts valuable time to a considerable extent. This area is referred to here because the members of the legal profession in adversary system can contribute in not only improving the situation but removing the malaise.
A duty must be cast on lawyers, if need be by a statute, to decide how many witnesses are required to be examined. Equally the cross-examination must be pointed and limited to specific inquiry. One more improvement can be made by lawyers in this area by agreeing to get the evidence recorded by a Court Commissioner. How can this be achieved has been fully examined earlier and it is not necessary to reproduce the approach of the Law Commission in this behalf.1
3. LCI, 129th Report, extracted in Introduction.
3.18. The next point that the members of the legal profession can assist effectively is the stage where summing up of the case is undertaken after the evidence is recorded. Oral arguments are heard for days on end. Once the argument is adjourned to another day, repetition becomes unavoidable. Again this stage consumes valuable time of the court. And it is avoidable. The arguments must be addressed on specific points which must be submitted to the court in advance; only minor elaboration may be permitted; time for listening the arguments on each side can, be fixed in advance; both the parties must be given right to submit written submissions and this is the area where lawyers alone can contribute to the speedy and expeditious disposal of trial. An innovation in this behalf, if need be by a provision in the Code of Civil Procedure, is overdue.
3.19. The last stage where the lawyers can contribute effectively is the exercise of the right to appeal. There is a feeling that sometimes the party which loses the action is encouraged by the lawyer out of his deflated ego on account of loss to prefer an appeal In fact, the lawyer of the losing party is the best Judge whether there is any merit in his case and whether the Judge of the trial court has committed a reversible error and that appeal will advance the cause of justice.
He has to examine this aspect dispassionately and he must honestly and sincerely advise whether to appeal or not to appeal. If he opines that the case is not good for appeal, any other member of the profession, if approached, should enquire from the trial lawyer what opinion he has given. If the other lawyer differs, he should have valid grounds in support of his conclusion. Otherwise, the client must be discouraged from preferring an appeal.
3.20. The features of the trial herein discussed are those in which apart from the litigants, the lawyers alone have a role to play. Therefore, while examining the role of legal profession in strengthening administration of justice, these features are referred to here. If the lawyers play a positive, constructive and creative role in the areas herein discussed, they would be establishing their accountability both to the litigant and to the system.
