A Dead Proviso

(By R. Rama Narayana Prabhu, Advocate, Ernakulam)

As we all know, all the tenants under the Kerala Buildings (Lease and Rent Control) Act, 1965 are entitled for protection against eviction under S.11(3) by the grace of 2nd proviso to S.11 (3) of the Act. it is also a well settled preposition that whoever claims protection under any proviso shall prove that he is entitled for the protection. When it comes in the case of 2nd proviso protection the burden to prove the same is heavy on the shoulders of tenants.

2. Before going in deep with regard to the various aspects of the 2nd proviso, it will not be out of context to mention about the background for the Rent Control Legislations. Act 2 of 1965 is a welfare legislation, intended to prevent illegal and arbitrary eviction of tenants by the landlords, under the ordinary law. In Nagindas v. Dalpathram (AIR 1974 SC 471) the Apex Court of India justified the Legislative intention behind the various Rent Control Legislations in the country.

3. It is also to be borne in mind that, in order to meet the socio-economic crisis which was the off shoot of the Second world war, the Legislatures enacted various Rent Control Legislations such as the Madras Buildings (Lease and Rent Control) Act, 1949, the Travancore-Cochin) Building Lease and Rent Control) Order 1950, the Kerala Buildings (Lease and Rent Control) Act, 1959 etc. in order to check illegal and arbitrary eviction and demand of higher and unconscienable rent by the landlords.

4. But, what about the present socio-economic condition prevailing in the State? If we are keeping a close eye, it can be seen that the socio-economic conditions are changing rapidly. Now, the tenants are no longer a weaker section as they were. They are affluent and strong enough to stand on their own legs, without any support from the landlords. The tenants 'now a days' are not dependent on their landlords for the building. Most of the tenants are having buildings of their own and the remainder is capable of putting up the buildings. They are making handsome profit out of their businesses, conducted in the tenanted buildings.

5. Now we return to 2nd proviso to S.11(3) which reads as follows:- 'Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business'.

There are two limbs for this proviso (i) if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on the such building and (ii) and there is no other suitable building available in the locality for such, person to carry on such trade or business.

Here the tenant has to prove both these limbs then only he will be entitled to the protection, otherwise not. In order to prove the first limb, the tenant can produce books of accounts, balance sheet etc. of his business. If the tenant has other business apart from the business conducted in the tenanted premises, he has to produce relevant documents of that business before the Court for a comparison as to his main source. But the irony is that, if a tenant is conducting a 'multi crore' turnover business in the tenanted building and conducting a 'multylakh' turn over business in another building, is it a fit case to grant protection saying that the tenant is depending for his livelihood mainly on the income derived from the 'multi crore' turnover business carried on in the tenanted building? The answer is 'No'. Then how can the Court grant benefit to a tenant who is really depending for his livelihood mainly on the income derived from the trade or business carried on in the tenanted premises? The answer is very simple. He shall produce all the relevant documents of his business to prove the same before the court and also adduce oral evidence to that effect and here the court can adopt the 'test of comparative hardship' to ascertain whether the tenant is entitled for the protection of first limb of second proviso to S.11(3) of the Act.

6. The test of 'comparitive hardship' envisaged under S.11(10) suits to second proviso to S.11(3) rather than to S.11(8). The Court, on the evidence on record, can come to a conclusion by applying the said test. If the available evidence leads to a irresistible conclusion that the hardship which may be caused to the tenant by granting eviction will out weigh the advantage to the landlord, it may grant protection to the tenant as to first limb otherwise not. By this test of comparative hardship the Court can do justice to those tenants who would be on roads if the eviction is ordered. Hence word 'livelihood' assumes great importance in deciding the matter.

7. Then comes the second limb:- Here the tenant has to prove that no other suitable buildings are available in the locality. The tenant cannot escape from the burden saying that it is a negative proof. In landmark decision reported in 1976 KLT 1 (D.B.) our High Court held that 'it is capable of easy and positive proof by examination of Accommodation Controller or such other effective means'. One could see many practical difficulties in relying the 'vacancy register' maintained by the Accommodation Controller. Invariably the 'Vacancy Register' also will be 'Vacant' and to the contrary one could see numerous new building bearing 'to let' boards. Here the words 'such other effective means' employed in 1976 KLT 1 assumes great importance by which the tenant is duty bound to plead and prove by effective means that 'no other suitable buildings are available in the locality'. The 'suitability' of the building may vary with the size of the pocket of the tenants. But by means of the relevant documents that to be produced by the tenant to prove the 'main source' the court can also come to a conclusion that whether the tenant can afford the building available in the locality, in deciding the second limb to proviso (2) to S.11(3) of the Act.

8. The decision of our High Court (D.B.) reported in 1999 (3) KLT 373 in my opinion created some confusion with regard to the 'burden of proof under second proviso to S.11(3). But the Hon'ble High Court of Kerala in another decision reported in 2000 (3) KLT 809 explained 1999 (3) KLT 373 and held that 'we do not see anything in the decision of this Court in Krishnankunju Raveendran v. Sukumara Pillai, which compells us to take a different view' and further held that 'mere oral assertion without any supporting materials to show the income is not sufficient to prove that the tenants are mainly depending for their livelihood on the income derived by them from the business carried on in the petition schedule building'. 'The evidence regarding the income derived by them is peculiarity with in their knowledge and the best available evidence should be produced by them', and the Hon'ble High Court settled another controversy by further holding that', 'It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining'. 'The use of the expression 'suitable building' can only mean suitable for his needs'. 'Thus the Hon'ble High Court interpreted the word 'suitable building' also.

9. On the analysis of the second proviso, facts and the case laws discussed herein above, one could see that the burden to prove the second proviso to S.11(3) of the Act becomes heavier and heavier on the shoulders of the tenants. The tenants have to plead and prove by cogent evidence, oral as well as documentary both the limbs of second proviso which is practically impossible. Proving of only one limb will not entitle the tenant for such protection. Hence one cannot be blamed in saying that the second proviso to S.11(3) of the Act is 'a dead proviso'.

Mcnaghten Rule, No Longer a Golden Scale Rule

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

To bring home a charge for most of the offences of the Indian Penal Code, the prosecution has to bring about the fact that the accused had committed the act of offence which do not require the state of mens rea, nevertheless they are very few countable by the finger tips. The element of mens rea rhytmes through the latin Maxim “actus non facit reum, nisi mens sit rea” which is a running thread in the web of Indian Penal Code, in the sense that an act which would otherwise be a crime, if done without a criminal intention, the doer of the act cannot be held liable. Judicial interpretation of the element of mens rea has widened the scope of the expression which looms large now in the act of doing things voluntarily, knowingly, fraudulently, dishonestly and like wise negligently. In all these aspects, the element of mens rea or mental element can be seen or precipitated. Chapter IV of Indian Penal Code under the caption General Exceptions formulate various categories of exceptions which an accused can put forth as defence. Ss.76 to 106 are those kinds of exceptions which the accused gets to crack the wall of prosecution case. S.81 IPC touches upon the aspect of mens rea which makes out the rule that one cannot be held liable for an act which would otherwise be a crime, but for that alone he cannot hold liable if the act was done without any criminal intention. Among the other kinds of exceptions, this article wishes to think around S.84 of the Code which streamlines the exception of insanity. The plea of insanity or unsoundness of mind goes along with the wisdom of exception formulated under S. 81 regarding lack of mens rea as a madman does not know how his mind moves on.

S.84 of the Code says that nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Plea of insanity sometimes may be used by the defence, though not often as a shield to ward off the prosecution attribution. The principal embodiment of S.84 goes hand in hand with S.81 in the sense that a close scanning of these sections ekes out the aspect that it does not contain mental element or criminal intention of the act done of. The four kinds of persons who can succeed to be non compos mentis (not of sound mind) in defending an offensive act area:- (1) An idiot (2) Unsound mindness by illness (3) lunatic (4) one who is drunk. When History rolls back to the Shakespherean's realm and gives a cue on the drama Hamlet, we see that prince Hamlet the delusive minded hero of Shakesphere was cornered with plea of insanity for his misdeeds. Hamlet being charged with his nocturnal activities termed it as coinage of the brain and Hamlet answers to the charge as "it is not madness, that I have uttered, bring me to the Test, and I the matter will re word, which madness would gambol from". So do the way of Hamletian tell tale the codification of insanity as a general defence of exception stems up from an 18th century incident happened. It was the murder of Mr. Edward Drummond, the Private Secretary to Sir Robert peel. Drummond was shot dead by a man called Mcnaghten, who was suffering from delusions of persecution and who killed Drummond in mistake for Sir Robert Peel himself. Mcnaghten was tried and after evidence as to his delusions had been heard, he was acquitted on the ground of insanity. The House of Lords had to accept the plea of defence of insanity and public reaction was so furious so that certain principles had to be formulated by the House of Lords on this score which are called the famous Mcnaghten Rules. The rule takes the following essentials in its periphery. In order to establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing the act, the accused was labouring under such defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or if he did know what he was doing that he did not know that it was wrong. The second important element is that if the accused commits the act by reason of a delusion, the degree of responsibility which must be attached to him, and therefore, in law the degree of culpability which must be attributed is based upon the justification which the delusion would provide if it were true.

This rule ruled the roost of England for a considerable period and very much culprits escaped through the golden scale of rule either by clinical psychologist's report or by some stray behaviour of past delusions for which the accused had undergone some treatment or other. At last the Lord Chancellor's committee and the Royal Medico Psychological Association as a sequel decided to sweep away the golden wing of this rule and recommended that the legal criteria of responsibility expressed in the rule should be abrogated and the responsibility of an accused to shoulder the criminal liability or to make a plea of defence on the ground of insanity should be left as question of fact to be decided by the jury. The jury has to frame up questions as follows:- (1) Did the person commit the act. (2) If he did, was he at the time of insane. (3) If insane, the act of crime unrelated to his mental disorder?

The position has undergone a sea-change now in England, where the right or wrong test of Mcnaghten rule no longer dominates this branch of criminal law to the exclusion of mental abnormality falling short of complete insanity as a limited defence establishing a claim of limited responsibility. Under the Homicide Act of 1957 if two psychiatrists certify that the Homicidal act of the accused was influenced by abnormal conditions of his mind, he cannot be convicted of murder but be held liable for manslaughter. In India, whereas he sets up such a plea of insanity and proves it, he gets a clean acquittal and not hold liable for culpable homicide not amounting to murder under the Indian Penal Code which is equivalent to manslaughter under the Homicide Act of England.

In India it is the burden of proof to establish legal insanity upon the accused himself. It is not insanity of every description that can be pleaded in defence, but it must be legal insanity which exhonerates the act of criminal liability. Medical insanity is not a ground of defence in India. By medical insanity is meant the prisoner's consciousness of the bearing of his act on those affected by it and legal insanity is meant the prisoner's consciousness in relation to himself. There can be no legal insanity unless the cognitive faculties of the accused are as a result of unsoundness of mind completely impaired. Likewise though drunkness is kept in par with insanity, mere drunkness is no excuse, but delirium tremens caused by drinking, if it produces such a degree of madness, even for a time as to render a person incapable of distinguishing right from wrong, relieves him from criminal liability. Thus to sum up, the defence of Mcnaghten rule or plea of insanity is not a golden scale rule which could precisely draw a sketch of effective defence at all the times.

Dismissal of Complaint Under S.203 Cr.P.C. A Misconception

(By E.P. Abu, Advocate, Mannarkkad)

In dissenting with the order reported in 2001 (2) KLT SN 48 (Cases No. 55), the writer of the article in 2001 (3) KLT, page 9 has misconceived or perhaps misinterpreted the order of Hon'ble Mr. Justice N. Krishnan Nair.

What the order implies is that the Magistrate should not dismiss the complaint strait away on seeing that there is no offence made out in the complaint itself.

What S.203 Cr.P.C. envisage is that after considering the statement of complaint and witnesses on oath the court sees that there is no offence made out, it is but to dismiss the complaint, not before that.

Certainly the court need not wait until the statement is recorded, but even if there the complaint itself does not reveal an offence, what the provision desires that the Magistrate should consider the statement of complainant and witness on oath and if this statement made out an offence then the Magistrate shall proceed with the case, lest ends.

It does not mean that the Magistrate should wait for the statements of complainant and witnesses, but only when the complainant render his presence to the access of the court and then, only then the Magistrate should enquire into the matter after considering the statements of the complainant and witnesses.

It is not mandatory on the part of the Magistrate that the court should wait for a long time to get the statements recorded, but, when complaint itself does not reveal any offence, the complaint should not be dismissed without filing statements on oath of the complainant and witnesses, if he himself made available to the access of the court.

That is what is intended by the decision, according to me.

Medical Negligence Aspects of Litigation

(By M.J. Kuruvilla, Advocate, Cochin)

Tremendous changes that took place in the last few years have shattered many concepts governing human relations. Real property has receded to the back yard. Intellectual property has taken its place. A variety of goods hitherto unknown and provision of services never contemplated before have made their appearance on the scene. Defective goods and deficient services have appeared in abundance everywhere. Exploitation of the consumer has reached an all time record. The Consumer Protection Act, 1986 should be viewed against this background.

The Act had been amended in 1991 and in 1993. The amendments were made so that the Act became more comprehensive. The services of the professionals like the doctors were not in the ambit of the Act till the Supreme Court judgment in 1996 in IM.A. v. V.P. Shanta. The patient became a consumer of service and the doctor the provider of such service.

Let us examine whether the provisions of the Act bite or only bark. It may also be examined whether they are in fact made applicable. So too whether this Act has boomeranged and adversely affected the patient's interest. No doubt this Act has served as an open invitation to speculative litigation. The inexpensive nature of litigation and the gambling instinct in human nature together have played havoc.

To impose deterrent penalty on the litigant if he is found guilty of malice or is motivated by extraneous considerations to curb vexatious and frivolous litigation is a step in the right direction. But the very purpose of the Act will be defeated if the deserving patient is scared away. While the patient should never suffer the doctor should never be penalised unjustifiably. Mass education and spread of legal literacy alone could provide a comprehensive solution.

The public and the medical and the legal professionals should clearly understand what constitutes professional negligence. In a nutshell, it is the knowledge about the legal injury resulting in the course of care or service rendered by a professional due to lack of his due and reasonable care. We will confine our attention to medical negligence. The fact that something went wrong or the patient suffered is no solid ground for litigation. The basic question in litigation is whether the patient has suffered due to negligence on the part of the doctor who provided the service for consideration.

The ingredients of negligence are well known. The first ingredient is the duty of care on the part of the doctor. As soon as the doctor accepts a patient this duty starts. The question is whether the doctor has accepted the patient and if so at what point of time. The moment a patient walks into a doctor's chamber the doctor patient relationship is not established. The patient should make sure the type of service he wants to obtain from the doctor and whether the particular doctor can provide that service. If a patient goes for a consultation what the patient can legitimately expect is just advice regarding his ailment and may be advice regarding its management, but not the actual managements. This is grossly correct. But if the patient is in need of urgent medical help which the doctor is capable of providing and there is a risk involved in delay if he is referred else where the doctor has an implied responsibility to render that emergency care. In technical terms it means that the doctor has to stabilize his patient, if it is within his competence, before he is referred elsewhere. Neither should the doctor embark on any therapeutic adventure that is not in the patient's interest. It could even be disastrous.

Ordinarily the doctor has a right to choose his patient. But in an emergency he has no choice but to take up responsibility if he is available and capable of such service. It has been said time and again that there are situations where a surgeon has to perform surgery even in a kitchen with the patient on the kitchen table with the kitchen knife as the only tool. This is not just his moral or ethical duty but his legal duty. Tracheotomy is such a procedure if a patient is choking with a foreign body in his throat. Indecision kills, so does undue delay.

The second aspect is the breach of the duty to care. The doctor has the duty to decide the modality of treatment. The judgment can go wrong. But the process of decision making must be faultless. If there are more than one method of dealing with clinical situation, he should choose that which is best for the patient. In any clinical situation there is only one best treatment. Others are all but the next best ones. When a doctor chooses an alternative he must have reason to do so. The infrastructure, the feasibility, the tangibility and various other factors may contribute to his decision. But he has the duty to elaborate and be transparent.

There is a general apprehension among the public that it is difficult to establish medical negligence. Many lawyers share this apprehension as well. The truth is that one cannot prove negligence where it does not exist. On the other hand where there is negligence, there is absolutely no difficulty to establish it. The initial task of the lawyer is the precise location of the negligent act. The next is a proper description of the act so that it stands out against the clinical background.

It is clear from the discussion that unless the patient or his counsel knows clearly what is the 'right approach in a particular clinical situation' one cannot put his finger and say 'this is the negligent act of omission or that is the negligent act of commission'. So too the doctor should, not only know what the law expects him to do, but also do that and properly account for his act before law.

We often quote Lord Denning's judgment in which his Lordship said that he could not attribute negligence if the doctor has followed one standard method of treatment. What was really admitted was the inability of the court to decide the case. His Lordship's judgment was just and correct in 1953. Not so in 2001. Now we know better. We are able to decide what the doctor should have done in a particular case. Prudence and reason should prevail over emotion and foolhardiness. It may not aways be possible to offer the best for the patient. But the doctor should account why he deviated. Error in judgment is not culpable. But with the information available and with the facility that is present a culpable error is one that "a reasonable doctor would not make under identical circumstance. That is the criterion for making a decision.

The third aspect concerns the damage suffered. In spite of duty to care and breach of that duty if the patient has not suffered damage, a verdict of negligence will not be forthcoming. The cause effect aspect has to be positively established.

The patient and the relations depend on the symptoms and feelings of wellbeing for the assessment of their disease and the outcome of the treatment. The interpretation of investigation and tests is equally difficult. They have little idea about the advantages and disadvantages of the different modalities of treatment. Unfortunately the doctor seldom offer a satisfactory explanation for his action. This is not because there is none, but due to the inability of the doctor and his counsel to explain his nonculpability.

There are a lot of misconceptions about investigations. It is settled medical practice that an investigation should be done only if that helps in the diagnosis or treatment. Even when an investigation is indicated the doctor should make sure that the risk involved in the investigative procedure does not outweigh the disadvantages.

The patient gets agitated and alleges negligence if something odd happens or if something does not happen the way the patient wants or anticipates. There is an ocean of difference between something happening in the natural course of events and the same or similar thing is made to happen.

There is confusion among the public regarding sequence and consequence. A surgeon operates and the patient dies the very next day. The events are in perfect chronological sequence. But to establish that the death is the consequence of the operation one has at least to provide conclusive evidence that the death would not have taken place had he not been operated.

Complication is another term that is often misunderstood. The word complication literally means something made worse or more difficult. An illustration may make matters clear. At one time the treatment for duodenal ulcer with gastric outlet obstruction was bypassing the obstruction. This is achieved by joining the stomach to the second part of the intestine called the jejunum by a side to side anastomosis. If instead of the proximal portion of the jejunum, the third part of the intestine viz. the ileum is used it is not a complication. It is an error in the technique. This is a negligent act. It is a disaster. The fact that it is referred to as a complication does not make it a complication. Nor the fact that bigger surgeons have made such, similar or worse mistake can be used to shield negligence.

Therapeutic errors are of two kinds. Procedural errors and executional errors. Procedural errors are due to errors in the sequence of the steps. These show lack of sufficient professional knowledge. The executional errors are errors in the performance of any one step. These are due to lack of professional skill. Both types of errors are culpable.

Several hazards are described in standard text books. They give details about difficult situations where caution should be exercised. The object is to ensure that the particular error or the group of errors does not occur. In the 60's the author was a student of surgery in England. He used to spend a lot of his time in a particular room in the Hunterian museum in Lincoln's Inn Fields. Specimens with the caption "Errors to be avoided" were the exhibits of attraction. One specimen was remarkable. It was the tracheo-broncheal tree of a soldier. The tracheotomy wound was demonstrated. Late Sir Barrette of Barrette Ulcer fame did the tracheotomy. A piece of arachnut was lodged at the tracheal bifurcation and completely occluded the right bronchus and partly the left bronchus and caused asphyxia death. The exhibit was intended to show the futility of a tracheotomy in such a situation. It cautioned against a possible mistake that should be avoided. It was never intended to provide a shield for those who make the mistake in the future.

Apparent health and wellbeing sometimes give wrong signals and even mislead. At times the actual state of affairs may be completely masked. The cataract patient provides the best illustration. Say, the patient was blind before surgery. He is blind after surgery too. The initial blindness was because of the opacity of the lens and could have been corrected by removal of the lens. But the blindness that followed surgery was because of the opacity that develops in the other refractory media of the eye. This blindness will not yield to simple measures. The patient has ended up worse than before though the patient will be oblivious of what has happened to him.

A number of tragedies can be cited. Worse still, some patients may feel better while really going downhill. The various bypass procedures done on patients with obstructive malignant growths that could be easily respected will bare testimony. They are crimes and fraud on the patients. It is true and the author cannot deny that sometimes one may have to pay a price to stay alive. In extreme circumstances one may have to part with a limb or a member just to survive.

Specialization and superspecialisation in medicine and law are not new. But the pace at which these are taking place now is phenomenal. Before separation of specialities there are common grounds. In course of time these areas become smaller and smaller and totally vanish. The pendulum has swung too far. Many specialities have drifted far apart. There are gray areas claimed by nobody. Medical negligence is in such a realm.

Defensive medical practice has been an anticipated problem. This amounts to the doctor starting to care more for his safety rather than that of his patient. The other problem is the increase in the number of complicated, invasive and expensive investigations resorted to. Of course this is to a large extent stage-managed by the industry and the business houses. A practical solution may be the introduction of a universal insurance scheme for doctors and hospitals. The scheme can be similar to the third party insurance scheme for motor vehicle accidents. The victims of medical mishaps could then be adequately compensated without burning the doctor's fingers. This will help the doctor to work without fear.

For fair dispensation of justice in medical negligence litigation the medical and legal professionals should clearly understand the concept of medical negligence. The terms like complication and the difference between terms like sequence and consequence should be properly comprehended. This information should not be stagnated and be confined to the professionals. It should percolate far and wide among the public at large.

The Right to Judicial Reforms

(By Kappillil Anilkumar, Advocate, Ernakulam)

Why should anyone go to a court of law spending his precious time, money, and energy if he does not get a fair trial and speedy justice? Our Constitution guarantees to every citizen the right to equality before law and equal protection of laws. The protection of law can be ensured only through courts and if there is no timely legal protection, it is no protection at all. The ecstasy of our freedom lies in the rule of law. If the nectar of liberty, equality, and fraternity are to be preserved for the generations to come, we should imbibe among ourselves the spirit of the Constitution. The fragrance of justice fades when there is delay and the decadence will lead to the ultimate destruction of all that we have inherited. The people will find it easier to take the disputes to the street rather than take them to courts.

Perhaps if anyone is comfortable with the present scheme of things and the inevitable delays in justice delivery system, he must be the one who belongs to the political folk. Understandably, the politicians of this country, irrespective of the colour of the flag he carries, want the status quo to continue as it suits them and none else. It suits them because as long as they could retain the justice delivery system weak and fragile, they can continue to bluff the millions with their fanciful and unrealistic promises they make and forget the same when they come to power. It suits them because, through delays only they can manage to bring down the common-man's faith in the justice delivery system and make the average citizen a perennial slave to the political masters. Obviously, an efficient, strong, independent judiciary is a nightmare for politician's unbridled control over the other two organs of the democracy, i.e., the executive and the legislature.

The lack of a strong political will have resulted in the denial of financial autonomy to our Judiciary. When we speak with lavish recklessness about the piling up of cases in the Courts, we forget that we do not have adequate number of Judges proportionate to our population. We forget that we do not have adequate physical infrastructure facilities in our courts for the efficient and speedier dispensation of justice. Comparing the salary and perks of a middle-level managerial personnel of a private sector IT Corporate, the salary and perks given to our Judges in the higher judiciary is far from motivating. We have consciously and systematically underestimated their work. We have miserably failed to estimate the amount of physical and psychological fatigue they experience in performing their role as Judges. We have failed to give them a conducive environment to perform by overloading them. The problem with us is that once we elevate a person to the judgeship, we start addressing him next only to Lord Almighty and treat him less humanly. We forget that the job of judging is the most difficult task ever known to mankind and it requires not only knowledge of law but also a divine insight guided by a sense of justice, dedication, and determination. He has to be warm and cold emotional and insensitive, kind and uncompromising, bold and humble, orthodox and liberal in the right proportions. Of course, the task is not meant for the meek and weak. The change from the lawyer hood to the judgeship is a process of re-incarnation in itself. It is an opportunity to re-invent oneself. Considering all these aspects, are we able to do justice to our Judges?

On the other day, there were press reports that from 1st April, there will be 1734 Fast Track Courts established all over the country at the rate of five each in every district. It was reported that the Central Government is going to spend Rs.500/- crores for this purpose. Is it going to solve the problem forever? Is it going to ensure speedier justice to the common-man? What is the modes operandi? Ad-hocism in judicial management is not going to solve any problem. First we should have a vision followed by a strong political will to strengthen the judiciary. Second the judiciary should be given financial autonomy. Third, the number of Judges should be increased both in the higher and subordinate judiciary proportionate to the population increase. Fourth the salary, perks, and superannuation benefits of the judiciary should be restructured making it par with the best in the world. Fifth, the selection process of Judges should give adequate weight age to knowledge of law, perceptive skills, intellectual ability, creative capabilities, and communication skills. Sixth, it must be ensured that every court should have its own self-contained infrastructure like building, spacious court-halls, furniture, and offices for the Judges and staff. Every court should have essential equipments like computers, photocopying machines, etc. with trained manpower to man them. Use of advanced information technology should be encouraged with proper training to the Judges and staff and the introduction of information technology in a phased and systematic manner will accelerate the efficient and speedy disposal of cases. Seventh, there must be a National Judicial Human Resources Development Programme aimed at proving periodic professional enrichment of knowledge to the subordinate judiciary. Eighth, there must be a separate judicial cadre for Management of Justice Delivery System, which involves planning, supervision, staffing, training, fiscal policy-making, co-ordination between other organs of the Government, etc. Ninth, the Law Commission should be entrusted to organise national and international seminars in India on topics of emerging legal issues facilitating participation of Judges of the High Courts and the Judges of equivalent courts from abroad. The High Court Judges should be given sabbatical leave to visit and study the legal systems of other developing countries. Tenth, the existing pedagogical methodology for training the subordinate judicial officers should be revised both in content and practice. Instead of the monotonous and repetitive classroom lectures, participate learning method should be adopted using case studies and class discussions. Apart from imparting training on use of computers essential judicial skills like process of written and oral communication, listening, rapid reading techniques, understanding body language, etc., should be made part of the curriculum. To achieve this, the first step is to train the trainers from among the lawyers and the retired Judges.

The onslaught of globalization and the spread of information technology demand the legal fraternity and the judiciary to wake up to the complex challenges ahead. We cannot remain recalcitrant by praising our own professional virtues. We should not hesitate to reconcile the irreconcilable truth of the day that a high degree of professionalism alone is going to rescue the system from the present rut and ret, meet and redeem it. It is our collective responsibility. If we fail, we will be failing the millions of fellowmen who inherited a Constitution that guarantees them justice, equality, freedom, and liberty; thereby we will be failing a Constitution we have avowed to uphold at all times.