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FORTY MILLION CASES
PENDING IN INDIA -
A MALADY FOR WHICH
MAHATMA IS THE
By Justice V.R. Krishna Iyer,
Former Judge,
Supreme Court of India
Poverty is the worst of crimes', says G.B. Shaw. Indian poverty is appalling and mainly accounts for disputes between the poor and the rich. This poverty litigation is largely at the lower courts. The legal profession is not oriented to settlement of disputes. They themselves are poor and there is no orientation for settlement of cases when a litigant comes to a lawyer with a dispute. If we can make necessary changes in the Advocate's Act by making it obligatory in the ethics of the legal profession that it should be the first priority of the lawyer to settle cases rather than initiate litigation. Then most cases which are petty and trivial can be settled at the earliest stage and at that stage settlement is easy. Proof of this proposition is seen in the book on 'The law and the lawyers' by M.K. Gandhi.
It is my conviction that no country is civilized if it does not have high principles of morality and truth incorporated in the rule of law. What is more? Law is not mere texts but rules of conduct which will be enforced at any cost. This is a tribute every litigant agrees to pay to truth. No case should be won on trickery or unveracity. Gandhiji's autobiography as is well-known is his experiments with truth. So he was insisting uncompromisingly to his client. Yes, tell me the truth, the whole truth, but nothing but the truth, this without reservation. Gandhiji has another unspoken undertaking from his client that he has the freedom to tell the court the truth and the whole trut the truth were adverse to his client and the opposite party would take advantage of it. Gandhiji said if any fair compromise became feasible he had the unqualified rights to accept it on behalf of the client. What is socially and economically just and fair tested by his conscience? Gandhiji demanded a right to accept such a deal. This would reduce litigation. Promote fair play and establish in society a respect for truth. The Mahatma won his way after all, facts were ¾ of the law and the court was satisfied that Gandhi would speak only the truth. They would hear him and tell the opposite lawyer we have heard the facts. You need only argue the law. Thus the Judge found it easy to reach the foundation of facts and decided on the truth of the case. Thereafter the reputation of the Mahatma as a Veracity Attorney rose so high that he became a prosperous popular lawyer speaking and practicing only the truth. Gandhiji rose in stature before the Judges. No false cases, no false witnesses, bare facts made the court hall a Mahatma in action and every litigation proved to be a moral exercise and experimental truth. Difficult to believe but it did work and instinctively the people regarded M.K. Gandhi as incarnation of Mahatma. How I wish our law colleges turned to be a training class for experiments with truth. This was social justice and matchless morality and the quintessence of a barrister reborn as Mahatma.
Read a page from the Mahatma's book on 'The Law and the Lawyers': 'Throughout my career at the bar I never once departed from the strictest truth and honesty. The first thing which you must always bear in mind, if you would spiritualize the practice of law, is not to make your profession subservient to the interests of your purse, as is unfortunately but too often the case at present, but to use your profession for the service of your country…. The fees charges by lawyers are 10 40 MILLION CASES PENDING IN INDIAN.
unconscionable everywhere. I confess, I myself have charged In India arrears of litigation are so terrible that justice in the Indian courts with its slow processes and appeals on appeals, revisions and reviews making justice, justices and justicing an interminable phenomenon. Actually a patriotic legislature if it has concern for social and economic justice should take away too many appeals and revisions, one appeal being sufficient. This measure will make the n considerably reduced. The expenditure on lawyers and litigative procedures will be made inexpensive. Today, a lawyer is an expensive creature. This need not be. Here the legislature has to be active. Today, litigation lives long. The litigant himself with the heavy expenditure finds itself short-lived.
A very strategic and significant provision enacted by Act No.46 of 1990 section 7 (w.e.f. 1.7.2002) requires stern application by the courts in India. The section read like this: '89. Settlement of disputes outside the Court.
(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for - (c) judicial settlement including settlement through (2) Where a dispute had been referred.
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.
(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for me dia tion, the c ourt sha ll e ffe c t a compromise between the parties and shall follow such procedure as may be prescribed.’ The first duty of a court is to examine the settlement potential of the case before it. Every case must be so examined and referred for settlement through arbitration. The arbitration or mediation will have to be finished in six months. Any further time must be given by the court. There should be a settlement or arbitration apparatus one in every district which shall be accountable to the District Court concerned. The arbitration should be prompt and speedy so that there should be only one appeal from the award. This provision is a dynamic and wholesome one. The arbitrator of course must 12 40 MILLION CASES PENDING IN INDIAN.
be a senior lawyer or outstanding citizen with a great moral reputation in public. If his performance is perfunctory or dilatory he should be removed from the list arbitrators or conciliators at the end of a year.

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