Judicial mirage in India: catching flies but letting hornets go scot free

Dr VK Bahuguna

(The author is retired civil servant)

The Parliament elections are over and people are eagerly waiting for the winds of changes in the overall governance of the country to meet their rising aspirations. When it comes to governance mostly the performance of executive and its monolith bureaucracy is scrutinized by the media and experts. But the sound, efficiently effective and independent judiciary is equally important for bringing a sense of happiness for people and for protecting their constitutional rights.

The Indian judiciary has on several occasions come to the rescue of common citizens on many occasions in the past right from enforcing the fundamental rights to ensuring conservation of our environment, independence of institutions and also firmly correcting aberrations in discharging duties as per the law by the executives. The recent Supreme Court intervention in helping the home buyers against the fraud and thuggery committed by the Amrapali group in Noida is an example to show how the culprits can be booked when the entire system had failed and colluded. Though on certain national issues the judiciary have credible achievements, however, on larger issue of providing justice to a commoner in remote countryside, urban ghettos and middle class is still a mirage. The cost of getting justice is very high in India and is painfully cumbersome and time consuming and the powerful people get away with their misdeeds in many cases. The judiciary therefore, is in need to go for sweeping changes in order to provide quick and affordable justice and change its age old British style functioning.It should mirror the futuristic vision in its agenda. 

This writer recently reviewed the environment in some of the national tribunals and forums and lower courts. In order to see the kerfuffle in the court he visited a district court in Delhi and observed the hustle and bustle with people in black robes and litigants frantically queuing up before the lifts, corridors and the chambers of the Judges full of people.

The first impression one gets is that getting justice is a tedious process and quite painful specially in civil suits and consequent delays due to court proceedings. The law and its interpretation is so cumbersome that in frustration people leave their fight midway and the financially more powerful who afford costly advocates get away and in the process the justice become a mirage. For example, this is particularly true in case of property disputes among the close family members. Here the law instead of finding contours of natural justice get trapped in the nifty- gritty of multifarious interpretations of law.Let us discuss a few cases here.

A Delhi court is overseeing a case for enforcing a relinquishing deed between two women relatives. The defendant is a cancer surviving daughter of a deceased mother who is divorcee working in a non pensionable job and the other applicant is a widow of her deceased brother. The applicant women is having lot of property and pension and bent upon getting full rights of the property to sell it. The defendant daughter in good faith in 1994 when everything was honky dory in the family to help her father and brother acquire property agreed to relinquish her share but she never thought that it will be registered.  Later on, when she had a break up with her husband started living along with her daughter in her mother's place which she had relinquished on certain unwritten agreements between the family members. Now the mother who was the owner of the property as well as her father and brother had expired. In the meanwhile, the brother who was a senior officer in the army raised quite a good property before he expired. Now the two women did not pull on with each other and the ego tussle took a legal trap after the mediation by Delhi High Court had failed and her pleading for 50% share was rejected by the mediator advocate was biased and while threatening her insisted on enforcing there linquishment. Later on, the sister-in-law filed a civil suit to evict the lady from her mother's flat where she was living for past 17 years. The case fact is financially powerful opposing party trying to dislodge the poor daughter from the flat of her mother for taking a emotional decision. 

The legal experts will argue on many legal points. The person relinquishing the right however, legally can revoke the deed on the same ground as in a contract. Here is the catch. In contract the parties have mutual interests which is not exactly the case in relinquishing share deed and deed could be nullified if obtained by fraud, undue advantage, misrepresentation of facts or similar ground. The law further also says that 'A relinquishment deed cannot be set aside simply on the ground that while executing the deed I/we were willing but now I/we are not'. This is an example how the law takes the litigants to blind alley of prolong litigation and a wide scope of interpretation by the advocates and judges without any accountability. This provision of law does not take into consideration the social dimensions of such cases in the changed context and it would be worth seeing how the case is decided. 

In yet another illustration, the National Consumer Dispute Redressal Forum (NCDRF) and the Central Administrative Tribunals have also become another sinecure for retired Judges and Bureaucrats and are antithesis of the purpose they were set up holding up cases for many years. If these are reformed else abolished after review, it will be a great service for the citizens. There is a case being heard in the bench of a retired bureaucrat in the NCDRF for the past four years against the Amrapali builder in Noida. The member is giving dates after dates in the gap of 8 to 9 months and it seems he helping the builder more than the litigants. Interestingly, the same case is being heard by the Supreme Court and the Consumer Forum should have closed the case as its decision will be overridden by the Apex Court in any case. The situation is not different CATs less said the better. In the Guwahati, one Tripura officers' simple case is not yet decided since past five years as the members are either on leave or keep postponing on flimsy ground and the officer is suffering and no supervision compound the agony. There may be umpteen number of cases which can be cited to invoke the conscience of our legal fraternity to see if the country can review its legal framework and at least to simply it in many cases and make changes in several other fields so that it looks really futuristic jurisprudence. If this piece can attract the attention of Chief Justice of Supreme Court and law Minister of the country, it will spur some thinking on the issues raised here. 

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