Amendment or obstruction?

FROM INDIGNATION to ire to agitation - the Civil Procedure Code (Amendment) Act of 1999 has provoked passions, particularly among lawyers who are offended by the somewhat cynical dismissal of their opposition to it. They are stung by the barbed comments that their livelihood seems threatened whenever delay in the judicial system is addressed or procedures are simplified. There is a genuine threat to litigants' interests, they protest, in this latest shake-up of the civil procedure. And it seems they have a point.

If this judicial system is to regain credibility, dilatoriness in the system will have to be tackled urgently. The backlog of cases is making the system creak and there is a threat of its cracking up.

It is therefore of interest that the CPC amendment introduces Alternative Dispute Resolution including arbitration, conciliation, judicial settlement including settlement through Lok Adalats and mediation in the early stages of a case to explore the possibility of an out-of-court settlement. The introduction of a time frame (though the unalterable fixing of enlargement of time confined to 30 days leaves one uneasy - is this a statement of incapacity of the judiciary to assess reasons for delay and exercise discretion when called upon to condone delay? Given the range of reasons for delay, sickness for one, are 30 days as a rule too uncaring of the exception?), the stringency in the form of affidavits (which will, perhaps, demand that lawyers work harder!) and making the defaulter bear the real cost for adjournments are some changes presumably intended to tackle delay and make the system efficient. The lawyers need to tell us how much it will cost the litigant when the lawyer is at fault or is inefficient. The denial of a tier of appeal, however, needs to be treated with particular caution.

Shrinking of appeal

The CPC Amendment Act gives finality to the orders of a single judge of a High Court in appeals arising from original or appellate decrees or orders; and where any writ, direction or order is issued or made on an application under Article 226 or 227 of the Constitution - i.e., in exercise of original jurisdiction. This makes a pronouncement of the single judge the final judgment of the High Court and indeed of the judiciary itself. And, even in matters of denial of rights, including fundamental rights, for which a petitioner seeks remedy in the High Court, the CPC now makes the single judge's order final and without right of appeal. A petitioner can, of course, ask the Supreme Court to reconsider the matter in a special leave petition under Article 136 but that article vests a discretionary power in the apex court to hear, or not hear, matters brought in appeal. Anyone who has watched the Supreme Court on `admission' days will know that `admission' is a misnomer, and they may be more aptly termed `dismissal' or `disposal' days.

The right to move the Supreme Court under Article 32 too survives the CPC amendment, but that remedy is confined to violations of fundamental rights and does not cover the denial or breach of other rights. And there too the Supreme Court has developed a routine of discouraging direct approach, insisting that petitioners first go to the High Court. Further, the Supreme Court is a long distance for most litigants and cannot be a substitute for an appeal before a bench of the High Court where a single judge has failed to appreciate the issue right, or has left the litigant with a sense of justice not done.

Consider a case of bonded labour. A bona fide person or organisation finds the existence of unfreed labour in a district, investigates the conditions of bondage and of the bonded, and approaches the High Court for a writ or direction to free and rehabilitate the labourers and their families. The case is assigned to a single judge who interprets the conditions of bondage as being one of indebtedness pure and simple, and refuses the writ. If this CPC amendment were to become law, the plight of the bonded labour would be dismissed from judicial attention, or the petitioner would have to make the arduous journey to Delhi to file an appeal which the Supreme Court may then decide to hear or not. The shrinking of the appeal procedure, which vests so much in one judge, would then assume a worrying significance.

Blow to the poor

In the matter of injunctions, essentially to maintain status quo while a case is in progress, the CPC amendment more subtly strikes a blow at the poor litigant. Where a person approaches court asking for an injunction, the CPC amendment now requires him/her to provide security. This, it has been suggested, is to prevent ``delaying tactics'' on ``flimsy and unreasonable grounds''. But what are delaying tactics and flimsy grounds for one could well be a matter of life and livelihood for another.

Delhi, for instance, is witnessing demolition of slums. And the Delhi Development Authority has been issuing advertisements inviting large construction companies to take possession of the land, which now houses slums, to build plush complexes. With the CPC amendment in place, when residents of a slum go to court to prevent their homes being demolished, they threaten the development planned for the area and could be called upon to furnish security. If they cannot, presumably there will be no question of granting injunctions. On the other hand, one who can afford the security can invest in the process of the court a far greater latitude perhaps for a much less urgent cause.

This attitude in the law contradicts the purpose for which courts exist. Judicial procedures must have access built into them. If the law is framed to deter persons who need the assistance of courts, there is something plain wrong.

Poser to lawyers

If there is so much, and perhaps more, in the amendment to cause concern, why this unwillingness to back the lawyers' protest? In part this is because, despite their protestations, the lawyers have been seen to agitate only when their self-interest is at stake. Where were the lawyers when the Terrorist and Disruptive Activities (Prevention) Act provided for trial by a single judge, in a designated court, who had the power to impose even death penalty? Where were they when TADA accused were tried under the extraordinary law, convicted of offences only under the penal code but nevertheless given the death penalty and actually executed? Why did the lawyers obstruct the setting up of family courts? Why did they then represent that their livelihood concerns were of greater importance than the easing of the difficulties of, particularly, the woman in distress? Why have the lawyers not thought that the complete neglect of legal aid and the inattention given to the in forma pauperis portions of the CPC are worthy of agitational relevance? Why are they not worried about the continuance of the Armed Forces (Special Powers) Act in the North-East which renders everyday a time of emergency for the people of that region?

It is probable that the CPC amendment reperesents one instance in which the interests of the lawyers and of the people converge in part; but at least some explanation for the suspicion about the lawyers' protests may be found in the casual unconcern for or deliberate obstruction of issues that matter to the people as people.

USHA RAMANATHAN

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