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Abstract

In this chapter, the author, a sitting judge of the High Court of Madras, discusses how litigation is beset by frivolousness and multiplicity of cases, illustrating this through a brief empirical study of cases that appeared in his own court hall. He notes that recording sound statistics on both frivolous and purposeful litigation is important to strengthen judicial mechanisms and combat unnecessary litigation. Failure to do so, he warns, will lead to a weak judiciary, and that is a peril to democracy.

. . . . .

I drew inspiration to pen this chapter after reading DAKSH’s report, titled the State of the Indian Judiciary (Report), published in 2016. Undoubtedly, the Report was an eye-opener to me. Justice M.N. Venkatachaliah, a colossus in the judicial firmament, has, in his foreword to the Report, made the following sagely observation: ‘The stereotyped, top-down system has really suffered banality, which has foreclosed any fresh look at the problem. Any light from outside is not only not welcome but, indeed, is seen as an intrusion into judicial independence.’¹

The Report shows the real face of the judiciary with its scars and pimples. The massive backlog of pending cases does appear alarming and may justify the clamour for expansion. But, expansion of the system by increasing the strength of judges and courts is fraught with other ills too. Parkinson’s Third Law, ‘Expansion means complexity and complexity decay’, will indubitably pull down the system to the nadir. To the best of my knowledge, there has been no empirical study to assess the nature of litigations that come to each court.

 190 I did a study of the cases that appeared in my court hall between 1 February 2016 and 30 April 2016, when I sat on the Madurai Bench of the High Court of Madras. The portfolios that I dealt with were bail matters, quashing of first information reports (FIRs) and charge sheets, and criminal writ petitions. A brief distribution of the cases as per subject matter can be seen in Table 1.

TABLE 1. Details of Cases Heard by Author between 1 February 2016 and 30 April 2016

Nature of case	Number of cases filed
Bail	370
Anticipatory bail	1,773
Direction Petitions Not to harass Register the complaint SC/ST directions To file final report Contempt petitions	295 1,433 179 224 89
Quash FIR quash CC quash Compromise quash Transfer investigation and trial	145 117 170 128
Writ Petitions Aadal paadal Aadal paadal with police protection	139 338

It may not be immediately clear as to what kind of cases are characterised as ‘not to harass’, ‘register the complaint’, ‘file final report’, and ‘aadal paadal’. These are concepts which have evolved over a period of time and are so entrenched that one cannot easily shake their edifices. Their interconnections can be best explained by way of a fictitious anecdote.

Laurel and Hardy are good friends. Laurel buys a 400 ft² house plot from Hardy. Several years later, when Laurel wants to build a house on that plot, he finds that 20 ft² of area on the north side of the property has been encroached upon by his neighbour. The legal remedy that is available to Laurel is to file a suit for recovery of possession against his neighbour. This would entail the payment of court fees coupled with prolonged litigation. In order to avoid this, Laurel sends a complaint by post to the police, alleging that Hardy sold a plot to him for which he has no title. After sending the complaint by post and even before the complaint reaches the police, Laurel files a petition under Section 482 of the Code of Criminal Procedure (CrPC), 1973 for a direction to the police to register an FIR on his complaint, in terms of the law laid down by the Supreme Court in Lalita Kumari v. Govt. of UP.²

When the petition comes up for admission before the court, the prosecutor represents that the police have received the complaint by post and are looking into it. Since Hardy is neither a party nor has the right of a pre-decisional hearing at that stage, the court has no means to ascertain the truth. So, the court passes a standard order directing the police to conduct an enquiry within six weeks, following the guidelines laid down by the Supreme Court in Lalita Kumari. If no action is taken by the police, Laurel files a contempt petition against the police for inaction. The moment the contempt notice is received, the police hurriedly registers an FIR against Hardy. This fact is reported to the court by the prosecutor when the contempt application comes up for hearing and after recording the same, the contempt application is closed.

If the FIR is registered, Laurel files a petition to transfer the case to the Central Bureau of Investigation (CBI) or prays for a direction to the police to complete the investigation in a time-bound manner. Pressure mounts on the police to arrest Hardy. Hardy may file a petition for a direction to the police not to harass him or may file a  191 petition for anticipatory bail. After insulating himself from arrest, Hardy files a petition for quashing the FIR.

One fine day, both of them appear before the High Court and pray for sending the matter to the Mediation and Conciliation Centre, where they strike a compromise and file a joint petition to quash the FIR by relying upon Gian Singh v. State of Punjab.³ In the end, Laurel and Hardy, with their petty civil dispute, generate eight forms of criminal litigation in the High Court. This is apart from the injunction suit and other civil litigation which they both are capable of generating. The multiplicative capability of litigiousness was pointed out by late Justice V.R. Krishna Iyer, who spoke of this capability in the following words:

The plaintiff prepares his suit-formalities, court-fees, many miscellaneous fees and paper after paper. The court registry checks with an eye on Order VII, finds flaws, returns the papers, representations, argumentation on the mistakes, questions of limitation, cause of action and court fee are raised, with more explanatory paper work and orality in court. Delays, lubricants and numbering of the suit and petitions follow. Service of summons by the court’s process server personally, with more attempts than one, is dilatory but is the only sanctified method.... Written statements, issues and arguments on burden of proof plus revisions to the High Court on tremendous trifles, are inevitable. If the records of the trial court are sent to the higher court in connection with any interlocutory appeal or revision it is stuck, even if the case there is disposed of. The party interested can freeze the records in the higher court and postpone the trial for long years. The great faith in formal proof of indisputable documents, the insistence on oral evidence with examinations, cross-examination and re-examination with objections, arguments on relevancy, revisions thereon and so on — with many side-dramas like injunctions, commissions and receiverships each finding within its womb the capability for combats for a few years; — these are all in the litigative drama. What a leela of the law?⁴

Coming to aadal paadal (song and dance) writ petitions, there are hundreds of village temples in Tamil Nadu, each with its own quota of factional feuds and caste rivalries. Song-and-dance programmes in the night hours are part of these temple festivities. As long as there is harmony between the factions and castes, these programmes will go on without any glitch. Unfortunately, places of worship are becoming reservoirs of violence. One faction will submit a representation to the police for setting up of microphones for conducting a song-and-dance programme and will immediately file a writ petition seeking a mandamus to direct the police to consider the representation and pass orders. The rival party will also make a similar request and file a writ petition for police protection to conduct the programme. One wonders what serious constitutional issues an aadal paadal programme raises. A constitutional court is now reduced to deciding which of these factions must have the right to use the mic set!!

From my little experience on the Bench, I have sound reasons to believe that the moment an FIR is registered, a quashing petition under Section 482 of the CrPC follows. Similarly, if a charge sheet is filed, the next moment, a petition to quash the charge sheet is filed. All orders passed under Sections 91 and 311 of the CrPC and proceedings under Sections 107, 110, 145, etc. of the CrPC are challenged. Admitting these petitions, even without any interim order, is good enough to stall the investigation or trial.

Then comes the category of outlandish petitions. For instance, a petitioner, who sent a representation by registered post to Barack Obama, former President of the United States of America, prayed for a direction invoking Section 482 of the CrPC to give him police protection alleging that there is an international conspiracy to kill him (petitioner). Fifteen minutes of judicial time were spent hearing the petitioner before dismissing the petition. I  192 am sure that most courts in India have their quota of such quixotic litigation. Thus, precious judicial time is wasted on interlocutory matters and silly litigation, leaving no room for disposal of important matters such as criminal appeals and revision petitions.

Increase in litigation is touted as one of the justifications for expanding the judiciary. A small study conducted by me, as given above, in my own court, shows that the nature of litigations is indeed not serious. The warning bell sounded by Lord Macaulay is worth recounting. He said:

The real way to prevent unjust suits is to take care that there shall be just decision. No man goes to law except in the hope of succeeding. No man hopes to succeed in a bad cause unless he has reason to believe that it will be determined according to bad laws and by bad Judges. Dishonest suits will never be common unless the public entertains an unfavourable opinion of the administration of justice. And the public will never long entertain such an opinion without good reason.⁵

If frivolous litigation has increased, this may mean, as pointed out by Lord Macaulay, the public entertains an unfavourable opinion of the court system. This worries me, as it appears, even scriptures, such as Srimad Bhagavata Purana seem to have predicted this decline in our judicial system.

Sri Suka began again:

Thenceforward, day after day, by force of the all-powerful time, O King, righteousness, veracity, purity (of mind and body) and forgiveness, compassion, length of life, bodily strength and keenness of memory will decline.

External marks will be the only means of knowing the asrama or stage in life (of an individual) and the (only) guide in determining the mode of greeting which people should adopt when meeting one another. Justice will have every chance of being vitiated because of one’s inability to gratify those administering it, and voluble speech will be the (only) criterion of scholarship.⁶

Is it not true that garrulous watermouths are masquerading as jurists?

Before planning to expand the judiciary, we should have sound statistics about the nature of litigation that arises from every court, from subordinate courts to the Supreme Court. The importance of statistics was felt by Mr Fali S. Nariman who introduced a private member’s Bill titled, ‘The Judicial Statistics Bill, 2004’ in the Rajya Sabha, which died a natural death as any other private member’s Bill. This Bill provided for the collection of judicial data, including data relating to the legal nature of disputes from the taluk level courts to the level of the High Courts. Had this Bill been passed, by now we may have had at hand, the nature of disputes that arise in each taluk and it would have been easier for us to find solutions locally. Even in the absence of a law, the government can engage the services of non-governmental organisations such as DAKSH to undertake studies and submit comprehensive reports. These studies should also include the time spent by courts on frivolous litigation and purposeful litigation along with the ways and means to stymie the former.

Humans defected from jungle life on the premise that matsya nyaya — the right of the strong to prey on the weak — is unjust, and sought to build institutions for the protection of the weak from the strong. The judiciary is one such institution. Once we allow our judicial system to become weak, democracy will surely be in peril. In 1984, Nani Palkhivala lamented that if affairs do not improve, the system of administration of justice  193 would collapse within the end of the decade. Three decades have passed since then and the spectre of his prophecy holds as good today as it did in 1984. Litigious consciousness and judicial conscience must be balanced by the constitutional mandate for upholding systemic identity.

Thanks to the common Indian, democracy has survived here for 70 years and in return, what we, in the judiciary, can give him as quid pro quo is quality and timely justice at an affordable cost. For that, one should clear the encroachers on the road to justice, with an iron hand.

Notes

1. M.N. Venkatachaliah. 2016. ‘Foreword’, in Harish Narasappa and Shruti Vidyasagar (eds), State of the Indian Judiciary: A Report by DAKSH, pp. v–vii. Bengaluru: DAKSH and EBC, p. vii.

2. (2014) 2 SCC 1 (Lalita Kumari).

3. (2012) 10 SCC 303.

4. V.R. Krishna Iyer. 1984. Indian Justice, Perspectives and Problems: Sir Asutosh Mookerjee Memorial Lectures. Indore: Vedpal Law House.

5. Upendra Baxi. 1982. The Crisis of the Indian Legal System. Delhi: Vikas Publishing, p. 54.

6. ‘Verses 1 and 4’, Book 12, Discourse II. Srimad Bhagavata Purana. Gorakhpur: Gita Press.