Adversarial System 'Not Suitable' For Average Citizens

New Delhi, Apr 6 (UNI) Adversarial litigation system ''is not congenial and suitable'' for average citizens, Chief Justice of India K G Balakrishnan acknowledged today.

Inaugurating a seminar on Access to Justice at Vigyan Bhawan, Justice Balakrishnan noted that ''our adversarial system of litigation is not congenial and suitable for an average person.'' He told delegates that ''in adversarial form of litigation, the common man finds it difficult to engage a suitable and competent lawyer and the legal aid provided to meet these challenges is not very successful.'' The adversarial system involves two or more opposing parties which gather and present evidence and arguments to a judge who knows nothing of the litigation until the parties present their cases.

Its flipside is the inquisitorial system in which the judge endeavours to discover facts while simultaneously representing the interests of the state in a trial.

Justice Balakrishnan made no mention of the inquisitorial system.

He cited how Western societies were taking increasingly to alternative dispute resolution-- arbitration, mediation and conciliation. ''And that is why in most of the Western countries alternative disputes resolution is catching up.'' The 3-day all India seminar is being held in the backdrop of a judicial system on trial owing to such deficiences as delays-- procedural and contrived-- very high costs and uncertainties.

One symptom is close to 30 million cases pending in courts across India--most for years and many for decades.

Drawing attention to the plight of the citizen at the receiving end of such dispensation, Justice Balakrishnan said, ''the common man has got geographical, financial and intellectual difficulties in tapping the benefits of our judicial system.

''The courts are not within the reach of the common man. The common man, I mean, an average Indian citizen. Now, most of the cases are settled in courts by adversarial form of litigation.

There should be a situation where less number of cases would only come to the courts and at the pre-litigation stage the disputes have to be resolved.'' The event sponsored by the Confederation of Indian Bar is being attended by Supreme Court and High Court judges, lawyers, scholars and other professionals.

The inaugural session was addressed by Law and Justice Minister Hans Raj Bhardwaj, Bar Council of India chairman Jagannath Patnaik, former National Judicial Academy director N R Madhava Menon, former Solicitor General Harish Salve and Confederation President Pravin Parekh.

Justice Balakrishnan said ''We have been trying to impress upon the authorities that at least in some areas there should be some specialised courts to deal with the problems.'' Even simple disputes-- such as bouncing cheques-- are at times reported to take inordinately long to sort out.

Critics say near-absence of timely punishment lends a sense of impunity to crime.

''We have repeatedly said that the criminal cases under the Negotiable Instrument Act have flooded the courts and the existing courts are not in a position to deal with other cases and, consequently it has affected the maintenance of law and order,'' Justice Balakrishnan said.

''Only when the accused are properly tried and convicted within reasonable time, we may send a message to the people that the commission of crime is a matter which would be visited with evil consequences,'' the Chief Justice pointed out.

''When the cases are pending for long time in courts, people would lose faith in the rule of law and also in the court system,'' he warned.

He regretted that criminal cases go on and on.

''Unfortunately, in our country there are criminal cases pending for more than 20 years awaiting final verdict in respect of offences committed 25 or 30 years back.

''There are special courts to deal with certain cases, but the number of these special courts are less.'' He also cited the lack of infrastructural facilities. ''Many courts are not user friendly.'' Despite a steep rise in litigation, States have not increased the number of courts.

In his remarks, Bhardwaj suggested setting up lawyers' academies along the lines of those for judges.

After the session, Bhardwaj was asked by journalists about reservation for Other Backward Classes. He replied that the issues involved were likely to be taken up at a United Progressive Alliance government meeting this evening.

He said the Supreme Court objections were over lack of demographic data justifying the level of reservation and non-exclusion of the so-called creamy layers from the benefit.

Asked about the government stand on the creamy layer issue, Bhardwaj said it was to be decided by the ruling Alliance. He delcined to say what he thought of the matter.

''Quick and easy justice at reasonable fees,'' to which Indian litigants are entitled, is yet to be, Parekh said briefing journalists about the meeting. He said its object ''is not to find fault'' but to thrash out issues and see ''what we could do.

How we could do.'' UNI