Monday, December 10, 2012

The law, the delays, what is going on?

I am a lawyer. My maternal grandfather was a lawyer as was my father. 2 of my father’s brothers are lawyers. My mother’s brother is a lawyer. HRH the Queen of Kutch’s father is a lawyer. As is her mother’s sister. All of us are honest, hard working and looking at completion of the legal task at hand. No, I am not writing my CV. I for one like to conclude a legal transaction, and move on to something else. Almost without exception, all the lawyers I have worked with are like this, wanting to get on with things.

However, I often despair at the state of things in our Courts. Judicial delays have, in my view, affected each and every one of us in so many ways. We have no fear of the law, no fear of the law enforcement machinery; we do not understand the consequences of our wrongs as we have never seen the guilty being punished. Lawlessness, law breaking and violation are literally all around. You can be reasonably certain that the house you are living in is illegal in some way, an enclosed balcony or a changed door is just two examples. Hawkers, encroachers, temples, restaurants, and shops everything is illegal in some way. We have so many laws to regulate every aspect of our lives it’s frightening.

Let me give you just two examples of judicial delays. In both examples, I am personally involved. The sheer idiocy and present irrelevance of the two cases boggles my mind.

Circa 1990 I was an employee at Crawford Bayley & Co a highly reputed law firm. As an assistant, I was entrusted with a case where a private company was the subject of a takeover battle between two brothers. After the usual legal wrangling, our client, a foreigner, got control of the company. As was the practice, I was appointed a director of this company for a few days till our client identified other individuals to become directors. At this point I resigned. I must have been a director for at most 2 weeks. Client was happy, he was in control of the company and he disappeared.

Fast forward to September 2005, I got a call from the Crime Branch asking me to report to the Crawford Market police station to record my statement. I was mystified. I could not for the life of me figure out what was happening. When I met the Inspector I found out that the client had thereafter been swindled by the company’s officers and he had filed a complaint. The Police wanted me to confirm that I was in fact a director of the company for a few days and that on my resignation the relevant form 32 had been filed. I confirmed both facts.

Fast forward to October 2012, I am summoned to the Magistrate Court handling Economic Offences as a witness to confirm, yes, you guessed it, that I was in fact a director of the company for a few days and that on my resignation the relevant form 32 had been filed. I did attend. Needless to say the case was adjourned. Next date 14 January 2013. I have to now appear on every date or else a warrant for my arrest will be issued. Despite my wanting to confirm the facts, I cannot do so till the trial `starts’. For that to happen, the complainant - the foreigner client, has to come to Mumbai to attend the hearings. The trial will not go on day to day but for a few minutes, at best, sporadically. Will the client make the ardours journey to India every few month for this trial? I doubt it. So I will have to keep going to Court every date for the foreseeable future. Have I delayed this trial? No. Am I willing to co-operate and confirm what I had done? Yes. Have the accused delayed the trial? I do not know. Why can the Court not relieve me? Because that is the way the law operates. Dead case, uninterested Court, no conclusion and the charade will go on.        

Second case. June 2000, in the days of the infancy of the internet, a law student in Pune typed sexual intercourse”, “unnatural sex”, “nude women”, “animal sex” and “sex" in the `Search’ box on the portal Needless to say the query threw up several answers, several of which were obscene. Our student was grossly offended by this and promptly filed a complaint in the Magistrates Court stating that Rediff was distributing, publicly exhibiting, and putting into circulation obscene, lascivious, pornographic and objectionable materials, photographs, pictures, writings, stories and other materials. To cut a long story short, the Magistrate was rather impressed and a Complaint was filed stating that Rediff was guilty of obscenity. Each of the directors was also made an accused. So there is a case in the Pune Court that is pending even today. Of course a Writ was filed in the High Court and the proceedings in Pune stayed.

Do you realise how utterly trivial and meaningless this case is? Today does anyone care about obscenity on the Internet? Of course there is loads of pornography on the Internet; it’s the most searched item. But do we have sleepless night about this? Is this something that needs a complaint in a Magistrates Court? But, once again the case is pending. It’s pending not only in Pune but in the High Court as well. Is anyone actively delaying the conclusion of this case? No. Would all parties in question not want the case to be heard and decided? Of course yes. It’s now almost 13 years since this case was lodged.

Both cases are in today’s context totally meaningless. In both cases, actual costs continue to be incurred by parties in engaging lawyers and paying their fees. Notional costs of loss of time are not even taken into account. Courts and consequently the Government also incur costs. Storage of case papers, security, having the judicial infrastructure kept in motion – Magistrates, Clerks, Public Prosecutors, Police Constables – all cost money. What boggles my mind is who is benefiting from this? The relevance of the so called wrongs itself are so trivial today.

In a situation like this where there is really no one who is manipulating the Judiciary or the law enforcement machinery, there are such gross delays. If any of the parties to either litigation were `Jugaad’ experts I shudder to think what would happen. They could make papers disappear, make papers appear, delay the case, influence the Public Prosecutors. Lawyers appearing in these courts are just so unwilling to carry on with a case. It’s hard work arguing a case. They just want dates and prolong the outcome. Judges are so demotivated and so caught up with the lethargy and despondentness that they too have lost the will to ensure that a trial commences or goes on in a meaningful way.

This single aspect, delay in courts, has damaged our society in ways that I am unsure Courts themselves know or realise.


  1. Remember, we were handling an Arbitration back in 2002 on behalf of a builder based out of Pune(wish not to name the Client)? A couple of months back I was in Mumbai and I met the other side counsel, and to my shock I learnt that the Arbitration is still on.

    A few days back I finished an Arbitration, which lasted for 4 years.

    If Arbitration in India takes so much time, then what better can you expect from the Courts.

  2. Even high profile cases are delayed. The Salman Khan black buck case is meandering since 14 years. What is the cause and solution?Is corruption the main culprit, in the sense that jugaad may be deliberately delaying some cases while others languish due to lack of incentives to motivate the machinery ?