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Do Adjournments Ineffectualise The Mechanism of Fast Track Courts?

In India there is a constitutional guarantee of speedy trial, It prevents undue and oppressive incarceration prior to trial and limits the possibilities that long delays will impair the ability of an accused to defend himself, the right of speedy trial implicit in Article 21 of the constitution. In Babu Singh v. State of UP[1] the court held that speedy trial is an extremely important component of justice" and in Sheela Barse v Union of India held that speedy trial is a fundamental right[2]. Bearing this in mind Indian court proceedings need to be dealt with expeditiously however in practicality this is seldom the case. Enforcing commercial contracts requires the involvement of the judicial system. However, it takes nearly four years (1,420 days) in India to resolve commercial disputes[3] on average which is ludicrous given the nature of fast track courts. A major cause of this inordinate delay is adjournments but what are adjournments and how are they tenable in the context of a fast track court.

Adjournments are a putting off or postponing of proceedings; an ending or dismissal of further business by a court either temporarily or permanently. Adjournments in the CPC are guided by Order 17 which lay down what adjournments are and rules guiding the principles of how adjournments are given however it still remains largely upto the discretion of judges which has lead to such a long delay in acquiring a decree, this further exacerbated by lengthy appeals and heavy logjams in the legal system. A serious cause for concern has come up in that judges do not follow the strict procedure of order 17 and significantly deviate from it, a concern echoed by Judges as well[4]

Moreover even the guidelines related to adjournments are almost never followed despite the apex court decreeing them as a requisite for adjournments in the case of Anil Rai v. State of Bihar[5] which stipulate that ideally a civil case should not take more than two months albeit this may be hard to maintain in practicality in extenuating circumstances, courts still too losely comply with this .In R.C Sharma v Union of India[6] the court in their judgement said “that Code of Civil Procedure did not provide a time limit in delivery of a judgment it should. Nevertheless, we think that an unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgment. Justice, as we have often observed, must not only be done but must manifestly appear to be done” That is to say that the apex court has pushed onto courts a primary responsibility of making sure that justice is delivered as soon as possible, however to this end the current status of adjournments is still excessive a sentiment echoed by the Executive as well[7] and judges several times[8]

Indian Government has taken steps towards improving the problem was[9] the enactment of the Consumer Protection Act 1986 (CP Act) for settlement of consumer disputes and for matters connected therewith. The aim of the CP Act is to provide for an effective, inexpensive, simple and speedy redressal of consumer grievances, which civil courts are not able to provide.It has a mandatory period within which a case has to be dispensed with and genuinely provide on the same.

But the largest step towards improving the state of the logjam was The Eleventh Finance Commission recommended a scheme for creation of 1734 Fast Track Courts (FTCs) in 2000 the country for disposal of long pending Sessions and other cases, but even these courts werent as effective by More than a lakh cases were disposed by the FTCs in 11 states. In eight of these 11 states, more than 1.5 lakh cases were disposed. Most number of cases were disposed by FTCs in Gujarat (4.3 lakh), followed by Maharashtra (3.8 lakh), Tamil Nadu (3.7 lakh) and Madhya Pradesh (3.2 lakh). Strangely, the data indicates that not a single case has been transferred to the FTCs in Uttar Pradesh till 2015 despite being functional for 15 years, hence even access to justice becomes an additional consideration not just long adjournments.

Even the components of the court contribute towards the long adjournments with the judges not strictly conforming to Order 17 of the CPC there also exists the fact that The second player is the lawyers. We should realize that adjournments, even if they are in favour of clients, are not in favour of the system. In a number of regulatory cases, there is no real need for appeals or adjournments. Given the huge backlog of cases, practical ways and means need to be thought of, to solve such problems. Ethics of lawyers has also become questionable. There is a Bar Council that has to look after ethics of lawyers, but it has rarely taken action against tainted lawyers. Everything becomes customary and loses meaning[10]. Hence there have to be tighter controls by the bar council as to the continuous adjournments sought.

There have been efforts like limiting the number of adjournments to only three with High courts and the Supreme court trying to enforce this rule but he laid down procedure of allowing a maximum of three adjournments per case is not followed in over 50 per cent of the matters being heard by courts, leading to rising pendency of cases, a government panel has said[11]. The panel stressed that the law of three adjournments should be strictly followed to reduce the pendency a whopping three crore cases across Indian courts.

Taking another example, the The Commercial Courts Act, 2015 provides for commercial courts and commercial divisions of high courts to adjudicate commercial disputes with a value of at least one crore rupees. The Ordinance reduces this limit to three lakh rupees. In 2018 there was a proposed amendment passed in the form of an ordinance after examining various problems faced that The Law Commission[12] recommended that mere establishment of commercial courts will not expedite adjudication of disputes.[13] It examined commercial courts in England and Singapore and recommended that litigation procedures in India need reform. For example, frequent adjournments sought by parties is the main cause of judicial delay and pendency in courts.[14] The Standing Committee on Law and Justice, while examining the 2015 Act, recommended that a cost be paid by the party seeking adjournments beyond a definite limit and such cost should progressively increase for subsequent adjournments. [15]The Law Commission noted that the present culture of charging fees per hearing incentivises lawyers to delay cases. It recommended that court fees should be linked to the time consumed by the litigants in presenting their case.

The Committee formed in 2015 [16]by the ministry of commerce noted with concern that the quality of judicial process in India has led to India’s low ranking as far as enforcing contracts is concerned, it said a major step towards improving special courts and tribunals was to Limit adjournments to unforeseen and exceptional circumstances only.

One way of resolving disputes is, litigation through courts. Thus, we should, incline towards alternative dispute resolution mechanisms such as conciliation, mediation and negotiations in which nobody loses and everyone who was involved is happy at the end of the day. The right to speedy trial is not a fact or fiction but a “Constitutional reality” and it has to be given its due respect. [17]

Though there are no specific provisions for speedy trial, by judicial interpretation, the Supreme Court has held article 21 of the constitution confers the right on the accused. It is in the interest of all the concerned that the case is disposed off quickly and justice is seem to occur. In Abdul Rehman v. R.S Nayak the SC observed that the ultimately it’s the court which decides whether right to speedy trial has been denied or not. Everytime when proceedings cannot be quashed as it might not be in interest of the society.

The Law Commission[18] prescribed the foundation of Conciliation Courts everywhere throughout the nation with the specialist to start placation procedures in all cases at all levels. The points of both these boards of trustees were to promote the reason for equity and guarantee proficient working of the legal framework. The Commission required a replication of the Himachal Pradesh High Court's Conciliatory practices, previously, amid and post preliminary for defendants which significantly secured issues identified with parcel, legacy, wills and so on. The positive outcomes from the investigation in Himachal Pradesh prepared for restoration of interchange discussions. Moreover, it might be expressed that it is the obligation of the judges to assit parties in landing at settlements in certin suits, as has been illustrated under Rule 5-B of Order XXVII and Rule XXIII-An of the Code of Civil Procedure. The pacification procedure throws an obligation on judges to make proper strides, where there is extent of settlement, to achieve compromise in specific suits and to think of an indisputable goals on a speedy premise.

The point and target of restoring Section 89, as expressed in the Statement and Objects of the Bill Code of Civil Procedure (Amendment) Bill started in 1997, was to guarantee powerful usage of Conciliation plans, following proposals of the 129th Law Commission and make it required for courts to allude to question to substitute gatherings. Inception of suits in courts will be the final resort of gatherings if every single other option come up short.. The revived Section 89 joined Conciliation, Judicial Settlement including Lok Adalats and Mediation notwithstanding Arbitration. Adjournment, one of the significant deficiencies present in our legitimate framework, is said to have been overwhelmed by ADR. ADR was planned with a motivation behind lessening the weight of the troubled framework and render speedy justice. Section 89 was acquainted with engage distinctive gatherings and was more for all intents and purposes relevant than some other alternative of diminishing legal slack, for example, expanding number of judges or foundation.

The language of the Section unmistakably expresses that there are 4 exchange goals discussions, including discretion and all the 4 gatherings are dealt with indistinguishably and accordingly there is no refinement made reference to in the Section. In discretion, the choice official on gatherings is taking by a private judge (Arbitrator) while in the other 3 mediums party self-sufficiency in ultimate conclusion is as yet kept up. Among the five determined exchange gatherings, ( discretion, assuagement, legal settlement, Lok Adalats and intercession), the most looked for after is intervention while at the every one of the five are at a similar balance according to the law. Discretion is a procedure just accessible at the assent of the gatherings.

Section 89 of the Code of Civil Procedure does not make a commitment for the Court to fundamentally lead mediation, yet simply allows the Court to elude the debate to discretion or placation and so forth., where it is happy as for a reference to the question in a pending suit that there is a probability of settlement of the equivalent by method for assertion or pacification.

In any case, The Government of India or any gathering can make an impulse or commitment on the Civil Court to fundamentally mediate the issue between the gatherings relying on the idea of the ascension entered by the gatherings. The way that Government is one of the gatherings to the mediation ascension has no effect. The order under Section 89 should be made to settle the issue and each undertaking ought to be made for genial settlement. It shows up from Section 89(1) of the code of Civil Procedure that an obligation is provided reason to feel ambiguous about the court to elude the question either by method for intervention, mollification, legal settlement including settlement through Lok Adalats or intercession on the off chance that it gives the idea that there are components of settlement. The protected legitimacy of Section 89 of the Code was maintained by the Supreme Court of India in Salem Advocate Bar Association, Tamil Nadu vs. Association of India. All undertakings will be made by the Court at the soonest purpose of time to settle the debate under Section 89 of the Code through any of the instruments gave under it. Nonetheless, the Court can't urge parties to surrender to ADR if any of the part did not make due with settlement.

Section 89 is a critical piece of the Code of Civil Procedure and is a compelling strategy to determine question between gatherings where there is extension for the equivalent. The area is right in its soul as the target has been to lessen the weight of the court, guarantee a trade off is landed at among gatherings and move towards speedier/powerful technique for administering equity. Arbitrary Dispute Resolution is a method for expanding access to equity without diminishing the nature of justice.

However, as has been featured in the whole paper, the Section experiences numerous inconsistencies, which have lessened its productivity and go about as an impediment in conveying equity to the general population. The proposals of the 238th Law Commission report strike at the core of the issue and there is a requirement for changes determined by the Report. Aside from the legitimate part of the wastefulness of the arrangement, another real explanation behind area neglecting to satisfy its motivation is the absence of lawful information among the general population. As opposed to going for Alternate means which are significantly more less expensive and les tedious, residents keep on going for preliminary planning to anchor a bigger honor from the Court. The substitute gatherings concurred under Section 89 are financially more feasible as there are moderately lesser measure of exchange expenses and along these lines, there is a need to make individuals mindful about the equivalent. Thus, the arrangement under Section 89 is right in its quintessence however its motivation is crushed because of legitimate complexities and absence of mindfulness among people.

[1] 1978 AIR 527 [2] JT 1986 136 [3] “Ease of Doing Business”, 122nd Report of the Department Related Standing Committee on Commerce, December 21, 2015 [4] Justice Asok Kumar Ganguly, “Judicial Reforms” published in Halsbury’s Review November 2008 [5] (2001) 7 SCC 318 [6] 1976 (3) SCC 574 [7] Ramnath Kovind September 1st 2018 [8] Justice RM Lodha September 2014 [9] Law Commission of India 230 Report [10] Supra [11] Government Panel Report 2015 [12] Law Commission Report 2015 [13] Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015”, Law Commission, Report No. 253, January 2015 [14] “Proposals for Constitution Of Hi-Tech Fast – Track Commercial Divisions In High Courts”, Law Commission, Report No. 188, December 2003 [15] Report No.78, Standing Committee on Personnel, Public Grievances, Law and Justice: ‘The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015, Rajya Sabha, December 2015, [16] ”, 122nd Report of the Department Related Standing Committee on Commerce [17] Air 1976 J. “Making Justice Speedy, Effective And Substantial” By Hon’ble Sri Justice C. Kondaiah [18] 129th Law Commission Report


Contributed by: Garv Sultania

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