Biker in New Delhi killed in police firing;
Supreme Court's axe to prune dead woods from subordinate judiciary; and 
Mobocracy fast supplanting Nomocracy (i.e., Rule of Law)

My previous posts, on biker in New Delhi killed in police firing, Supreme Court's axe to prune dead woods from subordinate judiciary and Mobocracy fast supplanting Nomocracy (i.e., Rule of Law) are topics initiated for indepth study by law students. 
So please give serious reading to the previous posts and discuss.
 through intelligent comments and suitable inputs.

I am afraid, I am taking a break.

My attention was captured by a news clipping on a national news channel, a couple of days back. The news channel projected the menace caused by the wayward bikers who were risking their own lives as well those of the passers by. They were shown to have converted a busy road in a high security zone into a circus ring. The channel condemned the police inaction in the matter.

Today, the channel is showing its update. One biker has been killed by police bullet while another is hospitalised.

What makes me to take a pause from my currently targetted subject in the posts on dead woods in the judiciary, is that the presence of the dead woods is somewhat a universal phenomenon, as the news story under reference persuades me to infer.

Let me outline the inputs which require analysis.

First of all, take a look at the manner in which the news story is projected by the electronic media.

The projection calls into question police action, questioning whether the biker's offence was so serious as to receive death penalty, though the media simultaneously gave a tell tale picture of the stone pelting on police van which was badly damaged.

It is evident that the electronic media is not interested in an objective presentation of the episode. It presented a clipping in which the mother of the victim was shown weeping and questioning the police action, but the media did not show any diligence about asking the grieving family how the fact escaped their attention what their young son was doing with his bike at 2 AM when it was time for the other members to sleep.

Secondly, be it the electronic media or the police, why it does not shock any one when disorder rules the roost on main thorough fares.

The electronic media gave its answer, stating that as and when the police tried to apprehend the hoodlums doing dangerous feats on road at odd hours on the main thorough fares, police found itself handicapped, as the bikers would defeat the police by speed.

It is here that dead woods need to be identified among the mediamen as also among the police.

The police has the power, better say duty, not just power, to lodge a case. No matter if the offender is unknown or unidentified. A case against unknown can be filed which police may supplement with facts and identification at subsequent stage of investigation.

This is equally true even in case of illegal road jams which small places like Bhagalpur frequently witnesses without the police discharging the above obligation and duty. 

This power is, however, exercised at the whims of the administration, as was done some years ago at or near Arrah in Bihar when a train was damaged by the angry without ticket passengers who aggressively reacted against magistrate checking.

It is time that dead woods are clearly identified in all segments, especially in the media and police, whose imbecility corrupts objective perception of the viewers.

Who is a dead wood in the subordinate judiciary which the Apex Court is inclined to prune ? 

Before finding an answer, it is felt advisable to state that the Apex Court has no direct power of superintendence on the subordinate judiciary. The constitution confers that power on the High Court under Article 227. Pursuant thereto, High Court exercises that power   suo motu as well as upon invocation. An application under Article 227 of the constitution is entertainable under High Court's writ jurisdiction.These days this power of superintendence invoked in matters where civil revision is barred under Section 115 CPC. The 2002 amndment in CPC has shrunk the civil revisional jurisdiction of the High Court, hence where ends of justice so requires, the power of superintendence is invoked to seek relief which the unamended CPC earlier provided.

This article comes handy in seeking High Court’s intervention in matters where the trial court’s lapses in disposing of cases is brought to High Court’s notice and a direction is sought.

Suffice it to say that the power of superintendence is exercised by the High Court in the above said two broad categories, suo motu and when invoked. The former is a routine practice, the latter is not.

The High Court maintains an inspection cell .Each District is allotted to one of its judges who conducts periodical inspection of the district court under its allotment.

It is this routine inspections in which deadwoods may be identified and pruned.

However, the Apex Court’s vision in the above regard does not seem to have descended in the manner expected.

The next posts are proposed to be dedicated to the above cause.  

‘National Court Management Systems’ (NCMS) for Enhancing Timely Justice.

A Judicial officer who is unfit, ineffective, incompetent or has doubtful integrity,inefficient and of questionable integrity, fall within the definition of dead wood, responsible for the justice delivery system's failure to deliver. So,  the first step has already been taken in proper  direction, to remove “deadwood" , who may be retired from service even before his continued utility is assessed in terms of directions of the review of judicial officers’ service records, character rolls, quality of judgments and other relevant material at the age of 50 and 55 years will be in addition to the assessment being carried out at the age of 58 years.
The previous post offers a clear glimpse in the above regard. The Apex Court's initiative in the above regard may further be viewed in conjunction with Apex Court's subsequent initiative. The following import from the official website of the Ministry of Law&Justice, at the behest of the Apex Court, captioned as the Scheme of ‘National Court Management Systems’ (NCMS) for Enhancing Timely Justice, which is founded on the ‘NCMS Policy & Action Plan’ document released by the CJI on 27.9.2012.
A cursory reading would make the picture clear:- 

" India has one of the largest judicial systems in the world – with over 3 crore cases and sanctioned strength of some 18,871 Judges (as on 31.12.2011). The system has expanded rapidly in the last three decades, reflecting India’s social, economic and political development in this period. It is estimated that the number of Judges/Courts expanded six fold while the number of cases expanded by double that number – twelve fold. The judicial system is set to continue to expand significantly over the next three decades, rising, by the most conservative estimate, to at least about 15 crore of cases requiring at least some 75,000 Courts/Judges.
There is an urgent need to make the Judicial System ‘five plus free’ (i.e., free of cases more than five years old). There is an equally urgent need to shorten the average life cycle of all cases – not only time spent within each court, but also total time in the judicial system as a whole, to bring the average to no more than about one year in each court.  There is also need to systematically maintain and continuously seek to enhance quality and responsiveness of justice.
To meet all these challenges facing the Judiciary effectively, the Chief Justice of India, after consulting the Minister of Law and Justice in the Government of India, established the National Court Management Systems (NCMS) in May this year and recently released a ‘Policy & Action Plan’ document to implement it. The National Court Management Systems will be under overall control of  the Chief Justice of India. It will primarily deal with policy issues. NCMS will include the following six main elements:
(1)        A National Framework of Court Excellence (NFCE) that will set measurable performance standards for Indian courts, addressing issues of quality, responsiveness and timeliness;
(2)        A system for monitoring and enhancing the performance parameters established in the NFCE on quality, responsiveness and timeliness;
(3)        A system of Case Management to enhance user friendliness of the Judicial System;
(4)        A National System of Judicial Statistics (NSJS) to provide a common national platform for recording and maintaining judicial statistics from across the country. NSJS should provide real time statistics on cases and courts that will enable systematic analysis of key factors such as quality, timeliness and efficiency of the judicial system across courts, districts/states, types of cases, stages of cases, costs of adjudication, time lines of cases, productivity and efficiency of courts, use of budgets and financial resources. It would enhance transparency and accountability;
(5)        A Court Development Planning System that will provide a framework for systematic five year plans for the future development of the Indian judiciary. The planning system will include individual court development plans for all the courts; and
(6)        A Human Resource Development Strategy setting standards on selection and training of judges of subordinate courts.
The administrative and technological “backbone” of these systems will be maintained at the Supreme Court and overseen by a Committee consisting of the representatives.
Specific proposals will be developed in each of these areas for consideration and implementation by and through the High Courts.
National Court Management Systems Committee (N.C.M.S.C.):
Specific proposals for the Court Management System as outlined above will be developed by an 18 member National Court Management Systems Committee (N.C.M.S.C.), which, subject to directions of  the Chief Justice of India, shall consist of the following:
Chair:
A Jurist/Domain Expert nominated by the Chief Justice of India. He will be paid honorarium and given such facilities as may be decided by the Chief Justice of India for Chairing N.C.M.S.C.
Accordingly, Prof. (Dr.) G. Mohan Gopal, former Director, National Judicial Academy, a Jurist, has been nominated by the CJI to be the Chairperson of National Court Management Systems Committee. Prof. Mohan Gopal will also be Member of the Advisory Committee.
Members:
1.    Four Sitting Judges (one from each zone in India) nominated by the  Chief Justice of India.
2.    Secretary General of the Supreme Court (ex-officio).
3.    Joint Secretary and Mission Director (National Mission for Justice Delivery and Legal Reforms), Department of Justice, Government of India (ex-officio).
4.    Registrar Generals of three High Courts nominated by the Chief Justice of India.
5.    Director, National Judicial Academy.
6.    Two practising Advocates nominated by the  Chief Justice of India.
7.    An expert Statistician, nominated by the Chief Statistician of India.
8.    An expert in management of decision making systems and process re-engineering, nominated by the  Chief Justice of India.
9.    An expert in Computer Technology relevant to Court Management, nominated by the  Chief Justice of India.
10.   A representative of a NGO working for improving access to     justice and user friendliness of courts, nominated by the Chief Justice of India.
11.  Additional Registrar, Information and Statistics, Supreme Court of India (ex-officio) – Member Secretary.
            Accordingly, the following were nominated by the CJI as Members of the NCMSC:
(a)          Shi Justice D. Murugesan;
(b)          Shri Justice A.M. Khanwilkar;
(c)          Shri Justice Amitava Roy;
(d)          Shri Justice B.D. Ahmed; 
(e)          Registrar General, High Court of Gujarat;
(f)           Registrar General, Calcutta High Court; and
(g)          Registrar General, High Court of Karnataka.
The Committee shall be supported by necessary staff and facilities.
·         Advisory Committee:
The NCMS Committee is to be advised by an Advisory Committee consisting of two Judges of Supreme Court of India and such other Chief Justices/Judges of High Courts as may be nominated by the Chief Justice of India. The Chair of the NCMS Committee shall be a member of the Advisory Committee. Secretary, Department of Justice, Government of India, shall be Ex-officio Member of Advisory Committee and the Secretary-General of the Supreme Court shall be the convenor of the Advisory Committee.
Accordingly, the following were nominated to be the Members of the Advisory Committee:
(a)                  Shri Justice Altamas Kabir, currently the Chief Justice of India;
(b)                  Shri Justice P. Sathasivam, Judge, Supreme Court of India; and
(c)                  Shri Justice P. C. Tatia, Chief Justice, Jharkhand High Court.
All expenses in connection with the functioning of the NCMS, including salary and allowances, etc., of the Staff, will be met from the sanctioned Budget of the Supreme Court of India.
                                                ----------------------

NOMOCRACY (Rule of law).
Governance, based on the rule of law, rather than arbitrary will, terror, etc., is technically called NOMOCRACY.

What is its antonym? There is no need to waste time in searching or researching the antonym of nomocracy. We, in India, especially in backward state like Bihar are familiar with a collequal term, close to what we are searching. Mobocracy soon this term should find place in English Dictionaries. 

Common man's ordeals  owe imensely to the conflict that result from the hypocrisy which our systems maintain to hide its progressive collapse. Which segment of the state is a major contributor to the increasing dwarfing of the rule of law by its unruly counterpart?  Legislature? Executive? Or Judiciary?

Those who have the inside view and access to the system would take no time to figure out who, how and wherefore. But this is not for public sharing, as it substantiation is not efficacious. All the same, an unsubstantiated inference would merit rejection, worthy of being labelled as a wild outpouring.

As such, a team of law students herein below dedicate their research but are in grief while by adjudging their own stream, the legal system, as the major contributor in promotion of mobocracy and in the simultaneous supplanting of nomocracy, the concept of the rule of law.


In its general sense, the phrase can be traced back to the 16th century, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is."
At least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.


Rule according to law; rule under law; or rule according to a higher law.

The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.

Rule According to Law

The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power.

Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal. This principle is reflected by the prohibition against Ex Post Facto Laws in the U.S. Constitution.

For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting or persecuting individuals for wrongdoing, whether criminal or civil. Most prosecutorial or persecutional decisions are based on the personal discretion of a government official. Long list of pending writ applications with unending volumes of fresh inpurs would bear testimony to this.

In the above backdrop, the subsequent posts would raise the curtain as to what the justice delivery system, in its existing state, has been contributing to the promotion of mobocracy, at the cost and peril of nomocracy, rule of law.

The following link offers case laws on S. 89.
http://www.indiankanoon.org/search/?formInput=section%2089-%20cpc

Use it.

Showing the contexts in which section 89- cpc appears in the document

Change context size 

 

Current 

 

Heard learned counsel for the parties and perused the paper book. 6. Various orders in CPCprovide for procedure in detail for conduct of trial in a suit after the parties have appeared and filed written Civil Revision No. 3188 of 2010 [3] statement. Before framing of issues, which is provided for under Order 14 CPC, to shorten the dispute between the parties, various provisions have been laid down. 7. Before appreciating the contentions raised by learned counsel for the parties, a reference to Section 89 and Order X CPC is required. The same are reproduced hereunder: "Section 89 CPC 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 observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for -- (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute has been referred-- (a) for Arbitration or conciliation, the provisions of the Arbitration

shall fix the date of appearance before such forum or authority, as may be opted. 9. Section 89(1)CPC provides that where it appears to the court that there exist element 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 observations of the parties, the court may re-formulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. 10. Where a dispute is referred to any of the forum/authority under Order 10 Rule 1-A CPC, the parties are to appear before such forum or authority. Rule 1-C of Order 10 CPC provides that on failure of efforts of conciliation, the matter shall be referred back to the Court. 11. Rule 1-A, B and C were inserted in Order 10 CPC by the Code of Civil Procedure (Amendment) Act, 1999 w.e.f. 1.7.2002 with the insertion of Section 89 CPC. Earlier Section 89 was repealed by the Arbitration Act, 1940. The Objects and Reasons appended

Bill seeking insertion of Section 89 CPC are extracted below: "Amendments: Objects and Reasons- Clause 7 provides for the settlement of disputes outside the Court. The provisions of clause 7 are based on the recommendations made by Law Civil Revision No. 3188 of 2010 [7] Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arriving at an amicable settlement of dispute between the parties and make an attempt to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the Court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternative disputes resolution method that the suit could proceed further. In view of the above, clause 7 seeks to insert a new Section 89in the Code in order to provide for alternative dispute resolution. [Statement of Objects and Reasons (Bill 1999).]" 12. The object of newly added

Legislative intent behind Section 89 CPC, and other inputs are given hereunder, which law students doing ADR clinical paper may use.


History

The concept of mediation is ancient and deep rooted in our country. In olden days disputes used to be resolved in a panchayat at the community level. Panches used to be called Panch Parmeshwar.

Now we have grown into a country of 125 crore people and with liberalization and globalization, there is tremendous economic growth. All this has led to explosion of litigation in our country. Though our judicial system is one of the best in the world and is highly respected, but there is lot of criticism on account of long delays in the resolution of disputes in a court of law. Now an honest litigant is wary of approaching the court for a decision of his dispute. Hence, we have turned to Alternative Dispute Resolution mechanisms.
The Supreme Court of India has started the process of reforms in the Indian Judicial System. Hon'ble Mr. Justice A.H. Ahmedi, the then Chief Justice of India in the year 1966 invited the Institute for the Study and Development of Legal Systems (ISDLS), USA to participate in a national assessment of the backlog in the civil courts. Studies were made in respect of the causes of delay in the civil jurisdiction in our country.

The legislature by the Code of Civil Procedure (Amendment) Act, 1999, amended section 89 of the CPC with effect from 1.7.2002 





whereby mediation was envisaged as one of the modes of settlement of disputes. The amendment in section 89 was made on the recommendation of the Law Commission of India and the Justice Malimath Committee. It was recommended by the Law Commission that the court may require attendance of parties to the suit or proceeding to appear in person with a view to arrive at an amicable settlement of the dispute between them and make an attempt to settle the dispute amicably. Justice Malimath Committee recommended making it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation or judicial settlement through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternative dispute resolution methods that the suit could proceed further. Thus section 89 has been introduced to promote alternative methods of dispute resolution.


Hon'ble Mr. Justice R.C. Lahoti, the then Chief Justice, Supreme Court of India constituted a Mediation and Conciliation Project Committee (then chaired by Hon'ble Mr. Justice N. Santosh Hegde). A pilot project on mediation was initiated in Delhi in the month of August, 2005. The first batch of senior Additional District Judges were imparted mediation training of 40 hours duration. The trained mediators started judicial mediation from their chambers in the end of August, 2005. Thereafter, 24 more Additional District Judges have been trained as mediators during the month of September and November, 2005. A permanent mediation centre with all modern facilities was established at Tis Hazari court complex (Central Hall, 3rd Floor, Room No. 325) in October, 2005. Judicial mediation was started at Karkardooma Court Complex in the month of December, 2005 and a litigant friendly and modern mediation centre was established in May, 2006. Eleven more Additional District Judges have been trained as mediators during the month of June, 2006.


A large number of cases have been referred to the Tis Hazari Mediation Centre and the Karkardooma Mediation Centre. The settlement rate at the two centres being over 60% is very encouraging considering that judicial mediation is entirely a new concept in our country.

For Suggesions, Pl. Email at:
delhimediationcentre@nic.in

Tel. No. : 23961909, 22309085

Alternative Dispute Resolution.
We have done preliminary court observation on the impact of S. 89 CPC which takes ADR in the sweep of civil procedural law.

DEFINITIONAny method of resolving disputes other than by litigation.  Abbreviated as ADR.  Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them.  Arbitration and mediation are the two major forms of ADR.OVERVIEWAlternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory.While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the preeminent mode of dispute resolution. Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation is used for a wide gamut of case-types ranging from juvenile felonies to federal government negotiations with Native American Indian tribes. Mediation has also become a significant method for resolving disputes between investors and their stock brokers. See Securities Dispute Resolution.Arbitration is a simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record. Arbitration has long been used in labor, construction, and securities regulation, but is now gaining popularity in other business disputes.
In 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was drafted to aid in the enforcement in domestic courts of awards granted in foreign countries. As of August 2007, there were 142 countries participating in the convention. In 1970, the United States joined the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The law students doing court observation on the impact of S. 89 CPC have missed the point, because the law practitioners themselves are insensitive and indifferent. Let me make up the deficiency thereby ensuing.

Law and practice may not be consistent. Better say practice may not be consistent with law. Practice is just a rut which is created by usage. Law practitioners detest assuming the role of reformer. Their obvious goal is to do justice with the brief in hand. The practice they follow find orientation from the demand which the brief in hand calls for.

Now coming to S. 89 CPC, it is essential to state the contour which a civil proceeding traverses.

A civil suit commences with the presentation of Plaint ( which contains a suitor's grievances and reliefs sought).

Obviously, a litigant, i.e., Plaintiff,  files his suit upon being forced to the wall. After suit institution, his whole focus lies on either interim relief , but in absence thereof, on a speedy trial. But trial does not start off until the pre- trial hurdles are overcome, including several things like ensuring appearance of the parties sued, called Defendants, after effective service of summons, followed by the completion of the pre- trial stage, in the form of the filing of reply (called written statement) by the Defendants.

The above pre-trial process is quite tiring for the Plaintiff who has been in quest for his remedy by the legal process.

Now comes the next stage, where the pre-trial stage ends and the stage of trial arrives. The first step in that direction is the framing of issues, followed by adducing of evidence whereafter the case would be argued out and judgment would be passed.

The above description of the whole trial process has been given in a sweep, but in reality its pace is slower than the slowest pace one may imagine. Going by the present status, cases filed in the eighties and nineties are still pending. Why, is not that easy to explain in a short note.

Now coming back to the main issue, i.e., S.89 CPC, in reality its stage is no where difined, nor is trial court's hands fettered. It can invoke this provision as and when possibility of conciliation, compromise or mediation occurs in the opinion of the presiding officer.

However, fact remains that this aspect has been grossly overlooked by all concerned, by the litigants, lawyers, judicial officers as well as by high court's inspection cell .

In practice, the above provision is invoked at a very wrong stage, at the very commencement of the pre- trial stage.

The court would not frame issue unless the Plaintiff overcomes the hurdle of S. 89. The term 'hurdle' is that which Plaintiff, in quest for justice woul obviously feel if the suit proceeing gets shunted like a train until the red signal marked by S. 89 CPC is addressed, this way or that. Plaintiff better prefers 'this' and avoid 'that'. 'This' represents Plaintiff's routine petitioning that no settlement could be reached, hence court is requested to proceed. The term 'that' represents an unwise move to let the proceeding remain held up while possibility of settlement is explored, in which court's participationnis not minimal, rather it is wholly absent. 

That explains why the legislative intent stands defeated, about which no one seems concerned, much less responsible.

Now the moot question is, whether the legislative intent behindvS. 89 may be appreciated and made effective?

It is for the students to find out, by collecting legal opinion from the practising professionals whose scant regard for this pragmatic legislation is known too well.

To help the students in their above endeavour, I may post some more materials on the topic. Interested readers may, therefore, follow subsequent posts.

While dealing with the legislative intent behind the incorporation of a new provision vide S.89 CPC, it is fruitful to refer to a recent development in the form of the Scheme of ‘National Court Management Systems’ (NCMS) for Enhancing Timely Justice*

 

India has one of the largest judicial systems in the world – with over 3 crore cases and sanctioned strength of some 18,871 Judges (as on 31.12.2011). The system has expanded rapidly in the last three decades, reflecting India’s social, economic and political development in this period. It is estimated that the number of Judges/Courts expanded six fold while the number of cases expanded by double that number – twelve fold. The judicial system is set to continue to expand significantly over the next three decades, rising, by the most conservative estimate, to at least about 15 crore of cases requiring at least some 75,000 Courts/Judges.

It has been realized at the apex level that there is an urgent need to make the Judicial System ‘five plus free’ (i.e., free of cases more than five years old). There is an equally urgent need to shorten the average life cycle of all cases – not only time spent within each court, but also total time in the judicial system as a whole, to bring the average to no more than about one year in each court.  There is also need to systematically maintain and continuously seek to enhance quality and responsiveness of justice.

To meet all these challenges facing the Judiciary effectively, the Chief Justice of India, after consulting the Minister of Law and Justice in the Government of India, established the National Court Management Systems (NCMS) in May this year and recently released a ‘Policy & Action Plan’ document to implement it. The National Court Management Systems will be under overall control of  the Chief Justice of India. It will primarily deal with policy issues. NCMS will include the following six main elements:

(1)        A National Framework of Court Excellence (NFCE) that will set measurable performance standards for Indian courts, addressing issues of quality, responsiveness and timeliness;

(2)        A system for monitoring and enhancing the performance parameters established in the NFCE on quality, responsiveness and timeliness;

(3)        A system of Case Management to enhance user friendliness of the Judicial System;

(4)        A National System of Judicial Statistics (NSJS) to provide a common national platform for recording and maintaining judicial statistics from across the country. NSJS should provide real time statistics on cases and courts that will enable systematic analysis of key factors such as quality, timeliness and efficiency of the judicial system across courts, districts/states, types of cases, stages of cases, costs of adjudication, time lines of cases, productivity and efficiency of courts, use of budgets and financial resources. It would enhance transparency and accountability;

(5)        A Court Development Planning System that will provide a framework for systematic five year plans for the future development of the Indian judiciary. The planning system will include individual court development plans for all the courts; and

(6)        A Human Resource Development Strategy setting standards on selection and training of judges of subordinate courts.

The administrative and technological “backbone” of these systems will be maintained at the Supreme Court and overseen by a Committee consisting of the representatives.

Specific proposals will be developed in each of these areas for consideration and implementation by and through the High Courts.

National Court Management Systems Committee (N.C.M.S.C.):

Specific proposals for the Court Management System as outlined above will be developed by an 18 member National Court Management Systems Committee (N.C.M.S.C.), which, subject to directions of  the Chief Justice of India, shall consist of the following:

Chair:

A Jurist/Domain Expert nominated by the Chief Justice of India. He will be paid honorarium and given such facilities as may be decided by the Chief Justice of India for Chairing N.C.M.S.C.

Accordingly, Prof. (Dr.) G. Mohan Gopal, former Director, National Judicial Academy, a Jurist, has been nominated by the CJI to be the Chairperson of National Court Management Systems Committee. Prof. Mohan Gopal will also be Member of the Advisory Committee.

Members:

1.    Four Sitting Judges (one from each zone in India) nominated by the  Chief Justice of India.

2.    Secretary General of the Supreme Court (ex-officio).

3.    Joint Secretary and Mission Director (National Mission for Justice Delivery and Legal Reforms), Department of Justice, Government of India (ex-officio).

4.    Registrar Generals of three High Courts nominated by the Chief Justice of India.

5.    Director, National Judicial Academy.

6.    Two practising Advocates nominated by the  Chief Justice of India.

7.    An expert Statistician, nominated by the Chief Statistician of India.

8.    An expert in management of decision making systems and process re-engineering, nominated by the  Chief Justice of India.

9.    An expert in Computer Technology relevant to Court Management, nominated by the  Chief Justice of India.

10.   A representative of a NGO working for improving access to     justice and user friendliness of courts, nominated by the Chief Justice of India.

11.  Additional Registrar, Information and Statistics, Supreme Court of India (ex-officio) – Member Secretary.

            Accordingly, the following were nominated by the CJI as Members of the NCMSC:

(a)          Shi Justice D. Murugesan;

(b)          Shri Justice A.M. Khanwilkar;

(c)          Shri Justice Amitava Roy;

(d)          Shri Justice B.D. Ahmed; 

(e)          Registrar General, High Court of Gujarat;

(f)           Registrar General, Calcutta High Court; and

(g)          Registrar General, High Court of Karnataka.

The Committee shall be supported by necessary staff and facilities.

·         Advisory Committee:

The NCMS Committee is to be advised by an Advisory Committee consisting of two Judges of Supreme Court of India and such other Chief Justices/Judges of High Courts as may be nominated by the Chief Justice of India. The Chair of the NCMS Committee shall be a member of the Advisory Committee. Secretary, Department of Justice, Government of India, shall be Ex-officio Member of Advisory Committee and the Secretary-General of the Supreme Court shall be the convenor of the Advisory Committee.

Accordingly, the following were nominated to be the Members of the Advisory Committee:

(a)                  Shri Justice Altamas Kabir, currently the Chief Justice of India;

(b)                  Shri Justice P. Sathasivam, Judge, Supreme Court of India; and

(c)                  Shri Justice P. C. Tatia, Chief Justice, Jharkhand High Court.

All expenses in connection with the functioning of the NCMS, including salary and allowances, etc., of the Staff, will be met from the sanctioned Budget of the Supreme Court of India.

                                                ----------------------

* Based on the ‘NCMS Policy & Action Plan’ document released by the CJI on 27.9.2012

KKP

 

(Release ID :88143)

 

Ll.B part 3 semester VI students may take help from the last post, in carrying forward their court observation project.

The LL.B Part 3, Semester VI students, given court observation assignment for the clinical (practical) paper namely ADR (Alternate Dispute Resolution) are back, ready with their feed back.

They are under instruction to collect inputs regarding the impact of Section 89 CPC.

Section 89 CPC states that where it appears to the Court that there exist elements of settlement which may be acceptable to the parties, the court shall formulate terms of settlement and do other prescribed things including resolution by arbitration, conciliation, judicial resolution in lok adalat, mediation, etc.

The inputs which the students have collected are indeed astonishing. Lawyers whom the students contacted for the purpose expressed wonder why the students were after this practically defunct legal provision which the bar and the bench, both, prefer to bypass in a routine manner. In fact some students said that their query fetched lawyers' despising response, wondering the stupidity they perceived in law students', better say law academicians', lack of wisdom in prescribing such a topic of no practical use for practical or clinical paper.

Even the students seem to have been overwhelmed by remorse that they ventured out with such an imbecile assignment.

The above narrations are intended at offering an insight into what does not, ordinarily, meet the eye, whereas the legal segment is generally credited with extraordinary capabilities, especially the ability to interpret even obscure things.

Firstly, it may be seen that the legislative intents behind the above legal provision has received scant regard from the bar and the bench alike. Why? No one has time to waste over this poser. Not even the law students, who have received no encouragement from the legal practioners in the matter.

Secondly,even the legal practioners did not consider it worth while to help the students in developing an indepth court observation on the above subject. Mind application on off beat subject is not their cup of tea, it seems.

The students have not even been helped in  gathering the actual state of affairs in the matter, hence the teacher has taken upon himself the tedious task of enlightening the students with an insight to prepare their project in a manner as to be realistic, objective and critical.

The first and the foremost clue whiich the students have been given is to read S. 89 with intently, word by word, without skipping important message and meaning each word carries.

The  words and expression, 'where it appears to the Court that there exist elements of settlement which may be acceptable to the parties ........' is important.

The above expression does not disclose the stage of a proceeding when S. 89 CPC must or must not be applied, for the expression, ''where it appears to the Court" , does not limit nor confine the stage of its invocation by the court. As such, its invocation may or may not arise, much less at any specific stage.

However, in practice, this provision is treated as something akin to stumbling block. Why so? 

This is precisely what the students failed to make outvdue to lackadaisical response they received in their court observation exercise.

Now that the students are duly briefed, they are unlikely to return empty handed, as before.    More importantly, their investigation may startle those who have still not comprehended the mediocrity that besets the justice delivery system.

students should keep themselves updated.
discuss problems in the class.
pick up inputs given here.
inputs will outflow after i get your response in the class.

I am giving below the prescribed course for the TNB Law College, Bhagalpur Students, LL.B Part II (IVth Semester) & LL.B.Part III (VIth Semester) clinical papers, namely Moor Court and Alternate Dispute Resolution.

MOOT COURT - LL.B Part II (IVth Semester).

Paper V

Clinical Paper

Moot Court Exercise and Internship

This paper may have three components of 30 marks each nd a viva for 10 marks.

(a)

Moot Court (30 Marks). Every student may be required to do at least three

moot courts in a year with 10 marks for each. The moot court work will be

on assigned problem and it will be evaluated for 5 marks for written

submissions and 5 marks for oral advocacy.

(b)

Observance of Trial in two cases, one Civil and one Criminal (30 marks):

Studetns may be required to attend two trials in the course of the last two or

three years of LL.B. studies. They will maintain a record and enter the

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various steps observed during their attendance on different days in the court

assignment. This scheme will carry 30 marks.

(c)

Interviewing techniques and Pre-trial preparations and Internship dairy (30

marks) :

Each student will observe two interviewing sessons of clients at the

Lawyer’s Office/Legal Aid Office and record the proceedings in a diary,

which will carry 15 marks. Each student will further observe the preparation

of documents and court papers by the Advocate and the procedure for the

filing of the suit/petition. This will be recorded in the diary, which will carry

15 marks.

(d)

The fourth component of this paper will be Viva Voce examination on all

the above three aspects. This will carry 10 marks.

Alternate Dispute Resolution - LL.B Part III (VIth Semester)

Clinical Paper

Alternate Dispute Resolutions

Outline of the course :

(i) Negotiation skills to be learned with simulated program

(ii)Conciliation skills

(iii)

Arbitration Law and Practice including International arbitration and

Arbitration rules.

The course is required to be conducted by senior legal pracitioners through

simulation and case studies. Evaluation may also be conducted in practical

exercises at least for a significant part of evaluation.

Drafting/Pleading

1. Civil

1. Plaint in a suit for :

(i) Specific performance of a contract.

(ii)Recovery of money on the basis of a Promissory note.

(iii)

Recovery of money for price of goods sold or work done.

(iv)

Partition of Joint Hindu Family Property.

(v) Suit for dissolution of partnership and accounts.

(vi)

Permanent injunction (Public nuiance)

(vii)

Damages for Defamation

(viii) Suit for possession against a trespasser.

(ix)

Mesne profits.

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(x) Suit for cancellation of sale deed.

(xi)

Suit for possession by landlord against tenant lender under the

Maharashtra Rent control Act,1999

(xii)

Written statement of the above suits.

1. (a) Affidavit

2. Execution petition i.e. Darkhast on the basis of civil Court.

3. Matrimonial :

(Original Petition)

Petition under the Hindu Marriage act,1955 and the special mrriage

Act,1954.

(a) Restitution of conjugal rights

(b) Judicial separation

(c) Divorce

(d) Divorce by mutual cocnsent

4.

Petition for –

(a) Succession Certificate..

(b) Probate on the basis of will

5. Petition under Article 32 and 226 of Constitution of India.

(a) Habeas Corpus

({b) Mandamus

(c) Prohibition

(d) Certiorari

(e) Quo warranto

6. Application for compensation before the Motor accidents Claims Tribunal

under the Motor vehicles Act, 1988.

7. Complaint under the Consumer Protection act, 1986.

8. Interlocutory application (Interim Relief)

9. Memorandum of appeal, revision and review.

10. Application under the code of Civil procedure 1908.

(i) Taking adjournment

(ii) substituted Service

(iii) Amendment of the plaint or written statement

(iv) Granting leave to deliver Interrogatories order

(v) Bringing legal heirs and representative on record.

(vi) Setting aside and abetment of the suits

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(vii) Appointment of a commission

(viii) Attachment of the proeprty of the defedant before judgement.

(ix) Appointment of receiver.

(x) Permission to sue as Indigent person.

(xi) Caveat applcation

(II) Criminal 1 ) A Private Criminal complaint in court relating to :

(a) Criminal Trespass , hurt, abuse and threatening.

(b) Cheting.

(c) Defamation

(d) Bigamous mrriage

(e) Under Section 498 A

(f) Complaint under Section 138 of the negotiable Instrument Act.

2.(a) Application for maintenance or written statement to the same

(b) Application for execution of maintenance order already for enhancement of

maintenance.

(c) Application for enhancement of maintenance.

3. Memorandum of Appeal and revision.

(a) Bail before a magistrate

(b) Bail before a session court

(c) Anticipator Bail

(d) Bail before the court convicting as accused who intends to present an

appeal.

(e )Application for cancellation of bail.

(f) Cancellation of warrant issued against the accused.

(g) Calling and recalling of witness.

(h) Disposal of property under Sections 451,452 of Cr.P.C.

(ii)Conveyancing

i Sale Deed

ii Mortgage Deed

iii Lease Deed

iv Gift Deed

v Promissory Note

vi Power of Attorney

vii Will Deed

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vii Legal Notices

viii Assignments, Deed of Exchange

ix Adoption Deed

x Deed of Dissolution of Partnership

xi Deed of Public Trust

xii Partition Deed

xiii Partnership Deed

xiv Leave and Licence

Alternate Dispute Resolutions

1. Models of Dispute Settlement, Litigation

versus Arbitration, Model of

Alternative Dispute Resolutions, Negotiation, Conciliation, Mediation,

Mini-Trial, Fst Tract Arbitration, Nature, Scope, limitations and necessity of

alternative models of disputes resolution.

2. Administrative tribunals – Articles 323 A and B

3. Family Court under the Family Court Act, 1984

4. Consumer council and forums under the Consumer Protection Act, 1986.

5. Settlement of Dispute through Lok Adalat and Lok Nyayalaya Grassroots

Justice and Panchayat System for Resolution of Dispute.

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 Students may copy the above and discuss details in class.