February 13, 2016

According to a report in The New Indian Express (8-2-16), titled 'Supreme Court Talks Tough on Frivolous Pleas', the Court has come down heavily on litigants who prolong cases by filing frivolous applications. The Bench headed by Justice Dipak Misra said: "The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim."

Justice Misra blamed litigant’s 'compulsive obsession' without blaming the role of some irresponsible and self-serving lawyers in instigating/encouraging litigation and prolonging it through unending adjournments that lead to clogging the Indian justice delivery system. Take, for instance, a case thrown out by Sitamgarh Chief Judicial Magistrate on February 1, 2016 - a petition, by advocate Chandan Kumar Singh, against Lord Rama and his brother Laxman over banishing goddess Sita to exile in a forest, with the judge saying that the issue is 'beyond logic and facts'. Meanwhile, three cases have been filed in the same court against Singh for his 'defamatory' acts against the Almighty. It has admitted the cases under various Sections of Indian Penal Code. Thus, the tamasha goes on!

Thankfully this case is handled at the district level. But, in the past, apparently instigated/ encouraged by the concerned lawyer, the case of a performing Himalayan sloth bear, Munna, owned by Nasir Khan, who was charged under Wildlife Act, reached the Supreme Court. He lost. But, it shows how litigants, apparently goaded on by lawyers, rush to the courts and clog them, thus preventing them from handling genuine cases.

Apparently India is not the only country where this is happening, as reflected in a TV show in USA titled: 'Donkey’s Day in Court'. But, in India it is no joke with millions of cases clogging the justice delivery system. As Chief Justice of India, T S Thakur, said , in an interview to The Week magazine (7-2-16), with just 16,000 judges to decide 3.2 crore cases, it may take 300 years to clear the backlog. The main part of the blame for the heavy pendency of cases lies with the lawyers. This takes us to the case of a lawyer who collapsed in court while arguing a case for adjournment. He was taken to the hospital where he was declared brought dead. He was duly buried and his tombstone declared: 'Here lies one who lied in court' - perhaps referring to his collapse in the court and lying on the court floor pending the arrival of the ambulance. A case of poetic justice?

But, it is not a recent development as lawyers, and even judges, have been noted for their 'qualities' down the centuries: 'Our wrangling lawyers... are so litigious and busy here on earth, that I think that they will plead their clients’ causes hereafter, some of them in hell'. – Robert Butler, English writer (1576-1640). And judges, who generally graduate from lawyers, are not far behind, as Alexander Pope, English poet (1688-1744) said:

The hungry judges soon the sentence sign,
And wretches hang so that jurymen may dine.
So, we have injustice by delay and also by undue haste!

One of the causes of clogged courts and delayed justice is frequent adjournments lawyers seek and judges grant (often in collusion?). Chief Justice Thakur, while pleading about shortage of judges, unfilled vacancies, skewed judge-population ratio and poor court infrastructure, goes on to say in the afore-cited interview: "There are two parties to a case, the plaintiff and the respondent. At times the interest of the defendant lies in prolonging the matter. There is tendency among litigants to prolong a case and their lawyers seek adjournments. They make all sort of excuses: they are ill, have a sour throat, etc. One should not forget the role played by litigants in delaying a case, and the role of the lawyers in promoting that. There must be some accountability of the lawyers. A concerted effort needs to be made to make lawyers realise that the credibility of the judicial process has to be safeguarded".

In America there are references to 'Ambulance-chasing Lawyers'. In India, we have a class of adjournment lawyers – though the number of adjournments are limited by law. There are also briefless lawyers, who carry dummy files and waylay unwary persons approaching courts for affidavits and certifications. But, for some lawyers, adjournments and delaying cases are their bread and butter. Take this case, may be apocryphal, for instance, wherein a successful lawyer, with live case files overflowing his filing cabinets, went on a long pilgrimage giving charge of his chamber to his son who had just obtained his sanad to practice law. Full of beans and idealism, the son managed to dispose of scores of cases kept pending by his father. On his return, on finding that the pending cases had been disposes off, the father flew into a rage for damming a steady flow of income on adjournment matters and died of a heart attack.

Now the fraternity of lawyers will have to cope with the steady inroads robots are making to render their traditional role progressively redundant. It is just the beginning and though astrological computer software has reduced the clientele of astrologers, some still survive and a few continue to thrive. Books have been written on the erosion of lawyer’s role and how robots and computer programs and software are set to reduce the scope of work by lawyers.

An update (5-1-16) in Legal Insider (www.legaltechnology.com) on the subject, in the context of USA, projects a reassuring scenario for lawyers than the earlier doomsday predictions for the profession. An academic paper published in December 2015 titled 'Computer Lawyers and the Practice of Law' argues that the impact of automation on the demand for lawyers’ time is far less significant than suggested to date. Taking on arguments put forward sometimes hysterically in the media, Prof. Dana Remus, University of North Carolina School of Law and Prof. Frank Levy, Massachusetts Institute of Technology examine in detail the suggestion that technology will soon replace much of the work currently done by lawyers, particularly junior ones. While Remus and Levy don’t deny that computers are changing the way law is practiced, they find significant weaknesses in the above argument and instead argue that computers are changing, not replacing, the work of lawyers.

The paper looks at the potential for current or near-term automation of six categories of lawyering tasks – document and case management; document review; document preparation; legal research and reasoning; interpersonal communication and interaction; and courtroom appearances. In conclusion, the paper finds: "Certainly automation is having a significant impact on the labour market for lawyers and that impact will increase over time, but predictions of imminent and widespread displacement of lawyers are premature. A careful look at existing and emerging technologies reveals that it is only relatively structured and repetitive tasks that can currently be automated. These tasks represent a relatively modest percentage of lawyers’ billable hours."

Coming back to the scene for lawyers in India, it is not only technology (in which India is not very far behind USA) that threatens the future of lawyers but also other measures the government is contemplating to reduce the pressure on the justice delivery system. According to Union Law Minister, Sadananda Gowda, interviewed in the same issue of The Week, pendency reduction measures are on through appointment of more judges and through innovative procedures like mega lok adalats, where the role of lawyers is marginal, under which 44 lakh cases were disposed of in 2015. Government has identified 1741 obsolete laws which are ready for repeal. Less laws, less litigation and less work and income for lawyers. It may be noted that the government is the biggest litigant. Under the proposed National Litigation Policy, all disputes between government entities, including public sector, will not go to courts but will be settled through a different mechanism.

With a view of encouraging pre-litigation settlements and reduce court cases, the government is considering a law that will give legislative backing to out-of-court settlements. As of now mediation process is mostly to settle marital disputes and the new legislation could encourage such settlements in other areas also - like landlord-tenant and industrial disputes which form a major chunk of litigations. The Law Ministry has proposed that the process of mediation should be given statutory backing by enacting a stand-alone law on mediation. (TOI 6-2-16). So, lawyers in India will have less potential work to do under new reforms and restrictions on the anvil.

(It is not only lawyers but also doctors, journalist and translators are heading in the same direction. But, that is another story for another time).