Shri Justice Navaniti Prasad Singh, Chief Justice of Kerala,
Adv. Thomas Abraham, High Court Advocates’ Association,
Shri C.P. Sudhakara Prasad, Advocate General,
Adv. Anand. K, Secretary, High Court Advocates’ Association,
Adv. Jasmine, Vice President, High Court Advocates’ Association
Dear Advocates and other Members of the Legal Fraternity,
Good Evening to all,
I am very happy to address you all after inaugurating this Annual Meeting of the Kerala High Court Advocates' Association. In my present official capacity, it is very rarely that I get to see such a large gathering of people from the legal fraternity. Since I still cherish my days as a lawyer, addressing lawyers is like going back in time, feeling younger.
Let me at the outset, compliment the Association for its active role in supporting the lawyers in their profession by providing guidance and help. I understand that the Association is now in its Diamond Jubilee Year and that it has been encouraging its members to uphold professional ethics and excellence. Its role in the welfare of members also deserves appreciation.
The Legal fraternity, lives in a world that is plagued by challenges of different nature and dimensions. As lawyers representing different sections of society, we have to be sensitive to the social, political, economic and technological implications of our times. Most importantly, a lawyer has to contribute to the preservation of individual freedom and democracy in society. A Lawyer works to ensure justice to people, thereby protecting their freedom and empowering them to participate actively in the democratic process. The Lawyers' role does not confine to the protection of his or her client alone. Lawyers also have a key role in maintaining the image of the judiciary, since justice is served by the Bar and the Bench together. A lawyer's actions, conduct and arguments should therefore, be in such a way that they help to uphold the credibility and honor of the Judiciary.
With such a significant role to play in society, a Lawyer has to be vigilant, especially in maintaining credibility. Being well versed in Law and the facts of cases is essential to everyone in the profession. But, above all that, the respect for the freedom and rights of others has to manifest in all our words and deeds. In short, the lawyer must be a model to others.
Professional success through ethical means is what makes a lawyer important in society. It is often the skill of advocacy, which becomes the yardstick of success. But, this skill should not be limited to one's performance in the courtroom. In fact, a lawyer is bound to take maximum efforts to avoid litigation as much as possible. You all know about Abraham Lincoln who preferred to discourage litigation and believed that “as a peace maker, the lawyer has superior opportunity of being a good man and there will still be business enough”.
Here, I would like to mention an issue which has been casting a shadow on our social role as Lawyers and at the same time poses a challenge to our advocacy and mediation skills. You are aware of the issues related to reporting of court procedure by the Media. While the sanctity of the Court and its proceedings have to be protected at any cost, a smooth flow of relevant information from the Court to the public sphere is also essential in tune with the spirit of democracy. It also strengthens the credibility of the Judiciary in the eyes of the people. I still believe that our skill of advocacy should enable us to work out a formula that would guard the sanctity of the judicial process as well as ensure a free and more genuine flow of correct information to the public sphere.
In my personal experience, one of the issues in the legal profession is the lack of awareness about many developments in the judicial process. Some of us may attribute this issue to the lopsided Legal education system in our country.
Legal Education and Ideal Bar
The importance of legal education in its contribution to the Bar, Bench and Justice Administration System is well known. Therefore, it is important to strengthen the legal education and to ensure an ideal and well-informed Bar. What we need is a set of uniform standards in all law schools and law colleges in the country and law students must be taught all subjects of law and social sciences besides other relevant subjects. Their syllabus must have an orientation to make them suitable for Bar and the Bench. The students must have special legal qualifications when they aspire to become Advocates and Judges. Bar Associations and Bar Councils must organize workshops and seminars periodically. Academies that provide orientation to young advocates should also be set up. Even associations like this can think of regular orientation programmes for Advocates.
Another issue that is disturbing our Judicial system is the pendency of cases. It is rightly said that pendency causes bankruptcy, since a case prolonged means that a client's purse is loosened to the level of it being emptied. There are many instances where Alternative Dispute Resolution can be invoked, even if the matter is pending in the Court of Law. The disputes can be resolved more economically and speedily and it can reduce the work-load of the court through a flexible procedure. Cases under the Motor Vehicles Act, 1988, the Consumer Protection Act, 1986, and the Contract Act, 1872 etc. can be brought under the obligatory ADR. Similarly, cases involving family law (matrimonial disputes), insurance, compensation, labour disputes should also be brought under the ambit of ADR i.e settled through Lok Adalats and Mediation.
Section 89 of the CPCread together with Rules 1–A, 1–B and 1–C of Order X would allow judges to refer disputes for settlement through ADR procedures in cases where elements of settlement are discernible. We should use the provisions of Section 89 as often as possible, since the referral to ADR decreases the case-load and arrears of the court and thus increases the time which can be devoted to other contentious matters.
I have also been surprised to see many young advocates ignoring the process related to issue of Notice and response u/s 80 of CPC, which is a conciliatory step towards settlement.
A statutory notice of two months before the proposed action under section 80 of the Civil Procedure Code 1908 is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell potential outsider why the claim is being resisted. The object is to curtail litigation and the area of dispute. But, how many of us follow this strictly is yet to be seen.
Wherever a notice is issued, the Government or departments or other statutory bodies should send a reply to such a notice and should properly deal with all material points and issues raised in the notice. As we all know, Government of India and State Governments are the largest litigants in India.
The State should have a policy of settlement of governmental disputes with citizens in the sense of conciliation rather than in a fighting mood. Indeed, it should empower its law officers to take steps to compromise disputes rather than to continue them in court.
We should also be familiar with the Amendments in the Civil Procedure Code of 2002, enacted to reduce the delays, experienced by litigants. In the case of service of summons, now the plaintiff only has to provide the required number of copies of the plaint and to pay the costs of delivery. If this is not done within the stipulated period of 7 days, then the suit shall be dismissed, as per amended Rule 2 of the first schedule of Order IX. Summons may now be delivered through Fax or email also. In cases where the defendant resides outside the jurisdiction of the court, the summons can be sent through courier, approved by the Court and not necessarily the High Court, as in earlier times.
As per amended Rule 1 Sub Rule (i), Order V,the defendant has to submit the written statement within 30 days of the service of summons. This may be extended upon an application to the court, up to a maximum of 90 days, with reasons for granting extension to be recorded in writing. As per amended Order VIII Rule 1, if the defendant fails to file the written statement within the given time the court may pass any order against the erring party or a judgment / decree. This provision would also definitely further the cause of speedy justice.
Under Order VI Rule 17, once the hearing is commenced both the plaintiff and defendant shall not be given leave by the court to amendthe suit unless the court decides that in spite of due diligence being exercised, the party could not have raised the matter.
Oral arguments tend to go on endlessly and now under Rule 2(3A) of Order XVIII, written arguments can be submitted. This is a useful provision, because it offsets any possible injustice owing to the refusal of the Court to hear the arguments.
Coming to the Criminal Law (Amendment) Act, 2005, the idea of plea bargaining simplifies the formal legal procedure and ensures speedier disposal. Plea bargaining was introduced in India by amendment of the Code of Criminal Procedure starting January 11, 2009. This applies to cases in which the maximum punishment is imprisonment for seven years; however, offences affecting the socio-economic condition of the country and offences committed against a woman or a child below the age of 14 are excluded.
Although the Evidence Act has been in force for many years, it has often been amended to acknowledge important developments. Amendments have been made to the Evidence Act to introduce the admissibility of both electronic records and paper-based documents.
As a solution to the case-congestion, people suggest temporary measures like reducing the number of court holidays and so on. As suggested by our Chief Justice of India in a function on 02-04-2017, relating to 150th anniversary celebrations of Allahabad High Court, if all the Judges decide to work extra five days in a year during vacation it would be possible to dispose of more old cases. Prime Minister has also suggested use of technology and digitalization in the Judicial System to overcome the burden of cases. As suggested by our Prime Minister, we could try the judicious use of technology to increase the pace of procedures. The High Court of Delhi had launched its paperless court with one of the benches. It was reported that on the first day itself, 33 cases were heard.
The importance of training is now well recognized and we have Judicial Academies in every State and National Judicial Academy at Bhopal, where orientation training is being imparted to various cadres of judicial officers. Similarly, we should have some arrangement for training of Advocates in matters like Cyber Laws, Intellectual Property Rights and other novel issues. We should also consider provision of training to ministerial staff of our Courts and even our Law firms.
I positively look forward to the day in judiciary where these changes are brought about so as to ensure speedy disposal of cases and a more informed judicial atmosphere. I hope this Association will have a constructive role in such matters.
The Hon’ble Supreme Court in Mahipal Singh Rana vs. State of Uttar Pradesh (July,2016), had observed that there is an urgent need to review the provisions of the Advocates Act dealing with regulatory mechanism for the legal profession.
Based on the above decision recently, the Law Commission of India has submitted it’s 266th Report tilted ‘The Advocates Act, 1961 (Regulation of Legal Profession)’ suggesting changes in the Advocates Act, 1961 to the law, to the Government. Few of the significant changes that are suggested by the Law Commission are as follows:-
a) Register of Law Firms,
b) Definition of Misconduct,
c) State Bar Councils and Bar Council of India
d) Disciplinary Committees
e) Special Public Grievance Redressal Committee of BCI
f) Pre-enrolment training,
g) Continuing Legal Education,
h) Entrance Exam,
i) Ban on Boycotts.
On March 23rd 2017, Law Commission sent a Report to Ministry of Law and Justice for necessary amendments in the Advocates Act. I request the Advocates body to go through the Report or Advocates’ Bill 2017 prepared by the Law Commission and convey their views.
I compliment the Kerala High Court Advocates' Association for conducting this meeting in a befitting manner. I hope such interactions would help us to improve professionally and to perform our social duties in a manner that benefits the people of our country.
Thank You
Jai Hind
