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Procedural Justice In The Supreme Court
A concern for new lawyers
Barrister Md. Abdul Halim
Let us took at the ways and Means to improve the delivery of Procedural Justice in the Supreme Court.
As I have discussed in last three parts of this write-up the procedural justice associated with a writ matter is mainly depended upon the activities of as many as eight categories of people: Bench Officers, Commissioner of Affidavits, Ardalis, Notice servers, section people or court clerks, typist, comparists, and file keepers in the file section. These people may and usually do frustrate the fruits of substantive justice and the miseries of some petitioners or respondents know no bounds and these are all known and open secret to all junior and senior lawyers.
Very often the petitioners or respondents, including new lawyers, feel cheated, captive, humiliated and harassed and a justice seeker turns out to be victim of endless and suffocating procedural injustice at the corridor of the apex court. This is also the main reason for many new brilliant budding lawyers to drop and leave the profession before they can enjoy any zeal of it. There is a famous saying “A strong Bar begets strong Bench” but if brilliant new comers cannot be invited to get into and feel interested in this profession, this profession of learned advocates will certainly turn out to be a profession of hooligan advocates and this trend has already began to degenerate this noble profession.
This is the absolute domain of the Supreme Court under the leadership of the Chief Justice from the side of the Benches and the President of the Supreme Court Bar Association from the side of the Bar and the government has in fact no role to play except for granting any budget if asked for. If these two honourable persons come forward to initiate some changes in the procedure, much of the problems caused by these section of people can be eased to ensure justice. I would suggest the following to improve procedural justice in the Supreme Court:
(i) Maintaining a mandatory list for unlisted motion: Some Benches of the High Court Division are maintaining this informally but this should be made a binding rule to be followed in every motion bench. This will prevent the misuse of powers and foul play by the Bench Officers and a level playing field will be created among general practitioners. This can be done easily with the seniority rule keeping unaffected.
(ii) Introducing digitised system of daily court items: This is urgent for listed matters. At present you do not know when your item will be called up and either you or your junior lawyer will have to be on guard to see if your item is called up and you may have to spend a whole day idle sitting in the court. All State High Courts in India also maintain this system and a lawyer can see from his court chamber whether his matter in the list is likely to call up or not. This will not only save times for judges, lawyers and clients but also reduce and eliminate the foul play by Bench Officers with listed items. The traditional tadbir system with its entire evil outlook will certainly disappear from the daily affairs in the court. This will also minimise the unwanted outlisting of cases for default by the courts. Although such a project will cost a lot, I do think most of the lawyers will be eagerly willing to pay for this.
(iii) Creating a database of Judgment and Orders: This will help reduce the pressure of typing and comparing again and again of the same order or judgment. The most vexing problem of procedural justice is with the criminal and writ motion Benches where every motion day more than hundred orders and rules are issued and they are traditionally written by short hand typists and then they are to be typed by them and then sent for signature and verification and this causes not only huge time but also breeds endless corruption and foul play by Bench Officers, short hand typists, typists, cmparists, ardalis, peshkers on the one hand and lawyers and their clerks on the other hand. Although hundreds of orders and rules are issued by a Benche on a motion day, they all are in the same nature and if a database is maintained, they can all be delivered within an hour by changing the names and case numbers etc. Very often a single page certified copy of court order will claim 2000-4000 taka whereas the government fee is only 10 taka. Sometimes you will not get an important certified copy even after a months struggle and spending of huge amount of money given by way of illegal gratification just because of bad practices by the opponent in collaboration with section people or Bench Officers etc. “Justice delayed justice denied” goes the age-old proverb and to get rid of this problem, our move towards the modernisation of justice dispensation system in the light of modern technology is a must. Although such a database will cost a huge amount of money but still most of the lawyers will be readily prepared to pay for this and most importantly this will save our next generation from jumping into the races of bad practices against their will; it will save and protect the lofty image of the apex court; it will help keeping commitment given to client by lawyers; it will encourage new comers in the profession to keep their confidence up onto the system.
(iv) Introducing central and unified system of supplying certified copy: We give fees for medical report to a diagnostic centre and the next day or the day after we get the certificate or report and there is no hassle or bad practice or bribing anyone for this and the same system may be introduced for certified copies. Obviously in cases of urgent matters like immediate stay orders, immediate injunction orders, urgent bail orders, or arrest orders in admiralty matters which are to be served next day, certification by presiding judges may be given and in such cases provisions may be made for supplying certified copies next day with extended fees.
(v) Introduction of a Complaining Venue: At present there is no effective process to make complains about malpractices by these people I am concerned in this write-up. As this type of practice is largely administrative and procedural, a permanent Bench or department or a Judicial Ombudsman may be set up to hear these matters urgently and with investigative power.
(vi) PRO section: A post of Public Relations Officer should be created with necessary logistic supports. This will help journalists, lawyers and researchers to find up-to-date data on number of pending cases, decided cases compared to number of judges etc and different types of statistics whenever needed.
(vii) Number of Judges in the apex Court: Compared to pending cases and the rate of increasing number of filing cases in the apex court. It is undisputed that the number of Benches and judges should be increased.
Finally and importantly we earn our bread from this profession but can anyone of us say boastfully that our earning is not tainted with illegality, persuasion, illegal gratification? If administrative and procedural matters can be safely and satisfactorily delivered in most of the private sectors, why can we not achieve the same given that there is no government interference in the procedure of the apex court? No angel will come from above to change our age-old erratic system of procedural justice; it is our responsibility to start a new era and this is primarily the task of the Chief Justice and the President of Bar Association.
The writer is practices in the Supreme Court.
