Are delays in our civil justice system systemic or subjective?

The reasons for delays in our civil justice system are both systemic and subjective. They may be identified as follows-

1. Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is party-controlled which provides wide maneuvering power to the lawyers, and presupposes lesser initiative and relative passivity of the judges.

2. Slow process of service of the summons which can be further slowed down by the intentions of the parties concerned, indicating a poor state of court administration.

3. Too much reliance on the resort to interim injunctive relief and orders, leaving the hearing of the main contentions and issues to infinity.

4. Frequent adjournments of the trial caused by the insistence of the lawyers, and reluctance of the judges to limit these adjournments, such reluctance being explained partly by heavy case-load and partly by their un preparedness to continue and complete the process.

5. Vested interest of the lawyers for lingering and delaying the process, for they are often paid by their appearances in the court.

6. Commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trial.

7. Scope for frequent amendments of the plaints and written statements at any stage of the trial.

8. Reluctance of the judges, accentuated by their statutory non-compulsion, to use pre-existing rules and orders to expedite the trial, or to sanction the parties for failing to follow the procedural requirements, meaning that the judges do not take initiative to employ procedural power already within their reach, nor do they make use of their rule making power to achieve procedural effectiveness.

9. Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case the way he considers best suited to his own interest.

10. Little scope for client to client interaction which hinders potentiality for alternative dispute resolution and intensifies conflictual nature of the proceedings.

11. Failure of the parties to present the witnesses - sometimes genuine, sometimes deliberate.

12. Vagueness in the terms and wordings of the plaint and written statement, charging on the court time to clarify the issues, and the failure of the judges to impose costs for frivolous suits and pleadings.

13. Rotation and transfer of judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgement and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled.

14. Inadequate administrative and logistic support system, enormous work-load of the judges, poor salaries and poor working conditions - all having negative impact on the initiative and efficiency of the judges.

15. Insufficient internal discipline and accountability where the parties fight in a 'do or die' manner with no or little perspective of any consensual settlement move coming from any side which could steer the dispute to win-win resolution. Consequential frustration, desperation and costs become too expensive for any judicial system to sustain. Earlier, moves had been made to clear the procedural blockages of our civil justice system though success could not be achieved. Mere amendments of the CPC within the existing trial philosophy may not be the best way to look for the gateway in the blind-alley. Before it is too late, innovative approaches are needed to live upto the uphill tasks of reconstructing our judiciary.

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