Chief Justice of India Sanjiv Khanna should be given our appreciation for the forthright manner in which he has flagged the three ills which beset our legal system. These are the costs of litigation, unimaginable arrears in the pendency of cases, and the prevalence of falsehood in averments. About costs of litigation, the less said the better about the rising costs of carrying on much of litigation. Several of the top lawyers of the country on occasion take up pro bono cases that are intertwined with public good but not surprisingly, the bulk of the cases taken up by them are charged to the client. Not just appearances and consultation fees but stays for a long duration in hotels by senior advocates and their assistants along with local transportation and airfare are commonplace.
The case against a client may be a fabrication based on twisting and deliberate misinterpretation of facts, or even in rarer cases through inventing fictions and providing incentives to witnesses to reinforce such false claims. However, it needs to be added these are exceptions, and then generally, practising the law is a noble calling. Despite the best efforts of lawyers and jurists, by the time many cases progress through the court system, years would have passed. These are often marked by stays that may result in neglect, thereby in time rendering an asset valueless, especially in cases where specialised machinery is concerned. Once, G. Ramaswamy, then Attorney General of India, wittily retorted in the Kochi High Court when the opposing side asked for an adjournment as their senior was in bed with a cold, “He usually lies in court, but today my learned friend is lying in bed”. Even the lawyers for the opposing side smiled at such a witty exchange. Again, it needs to be pointed out that such ills are rare, and most lawyers say what they believe to be the truth. Turning to the field of construction, some of the residential buildings that get built may be ab initio illegal, yet through presentation of false documents or officials willing to sign orders which they know to be illegal, permission to build is given by the concerned authorities and the flats sold, only for the building to later get marked for demolition by a court. The consequence may render those unwary buyers who got tempted into making the purchase of a flat. In the process, they would face financial ruin.
Such human tragedies continue to abound, and need to stop being added on to with the elapse of time. The need is urgent to ensure that delays in the legal system get addressed and eliminated, so that the courts are enabled to fulfill their mission of (in the evocative words of the CJI) making “the constitutional promise of justice—social, economic and political a living reality” for all citizens. To achieve such an outcome, “justice must be both principled and practical”. As was pointed out in his address on the 75th anniversary of the Supreme Court, the 21st century has witnessed remarkable progress in the task of the Supreme Court to deliver justice to the millions. The CJI pointed out that this has taken place through the Court navigating through an “expansive domain, from personal liberty to environmental issues, from intellectual property rights to privacy to the Right of Information”.
It may be added that such rights may on rare occasions need dilution in the national interest, such as when applied to exorbitantly priced drugs essential to life that are monopolies of a handful of companies or even a single company. Or to pharma companies that evergreen patents may making small changes in formulas, and thereby preventing companies from making generic substitutes for them. And there is little doubt that Open AI has been much more beneficial to the public good than companies that charge whatever they can, wherever they can. The Court has done well to point out that bail should be the rule and jail the exception, rather than the practice during colonial times of jail being the rule and bail the exception. Areas that have been improved by the Court are on track for need to be further betterment, so that a framework gets created for double digit economic growth, the benefits of which reach all sections of society. The people look not only to the government but to the courts and the legislatures for ensuring the framework within which such a development imperative gets reached. The good news is the accelerating pace that the government and the courts are adopting in working towards double digit growth. If China could do it in the past, so can India in the present.