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The Rigidity of Procedural Technicalities in Indian Courts

Hon'ble Supreme Court of India has emphasized liberal interpretations of procedural rules time and time again. Hon'ble Justice Kishna Iyer of the Supreme Court of India noted in the judgment Sushil Kumar Sen Vs State of Bihar (1975 (1) SCC 744):

"The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act "ex debito justiciae" where the tragic sequel otherwise would be wholly inequitable.

Procedure rules, which are meant to act as the lubricant of the justice delivery system, are in fact creating a mirage-like illusion in the minds of the litigants, which causes them to feel trapped in the desert of the Indian justice system."

In his comments, Hon'ble Justice Kishna Iyer, Supreme Court of India, referred to the obstacles created by the procedural rules which serve as major hindrances in justice delivery.

It was in that context that the previously mentioned observation was made. Four decades have passed since the previously mentioned observation was made. Even so, procedural technicalities have taken over as mistresses, rather than serving as handmaidens.

It is not unusual for different courts to have different procedural requirements, which confuses a common litigant. For India's justice delivery system to be more efficient and better equipped to deal up with the increasing complexity of situations arising out of its increasing population, it should ensure the uniformity of procedure in court proceedings.

As we see today, different formats are used in different courts for filing the same lawsuit, different languages are used in different courts, different terminologies for the same nature of litigation are used in different courts, and different formats of legal websites are used in different courts.

For example , for filing Commercial Civil Suit proceeding, following different terminologies are used by Different District Court and High Court. The same are reproduced as under:

Delhi High Court: Earlier CS (OS) No , CS (Comm) No, Presently CS (Comm)-IPD No.
Bombay High Court: Commercial IP Suit No
Calcutta High Court: CS No.
Madras High Court: OS No.
Himachal Pradesh High Court: COMS No.
Bengalore District Court: Commercial O.S.
Delhi District Court: TM No.
Hyderabad District Court: C.O.S. No.
Jaipur District Court: Civil Suit No.
Vadodara District Court: Regular Civil Suit No.

Use of different terminologies by different courts across the India are not required at all. If country in one, one terminology should be accepted for all across the India for same nature of court proceedings.

A common Indian litigant finds the Indian judiciary unapproachable as a result of these different procedural mechanisms used by different courts in different parts of India. The right of equality guaranteed under the Indian Constitution to every citizen is becoming redundant.

Not only in the physical functioning of court proceedings, which was prevalent prior to the Covid Era, but also in the digital functioning of court proceedings, which is attributable to the Covid Era and post-Covid Era. In both forms of court functioning, uniformity of procedure is lacking.

In addition to changing the lives of people, Corona Pandemic has changed the Indian judiciary as well. In response, Indian courts have made changes to meet changing needs.

The Covid pandemic has caused the people of India to confine themselves to their houses. Even the Judges, staff members, and others could not physically participate in the court proceedings. In order to achieve this, it was necessary to find alternative ways of working.

Through virtual hearing mode, India has witnessed a digital form of court hearing. It was great to be able to adapt to changing times. However, the lack of procedural uniformity that was a feature of the Indian judiciary prior to the Covid era persists in virtual court hearings as well.

It is well known that the majority of Indian litigants are uneducated. When an educated person find is difficult in understanding the court proceeding because of lack of uniformity, what can be said about the uneducated citizen?

In terms of digital court hearings, they are less educated. The difficulty of the litigant is exacerbated when different platforms and applications are used by different courts while conducting court hearings in virtual mode.

Virtual hearing systems such as Cisco, Vidyo, Zoom, and others are used by different courts in India. Different tribunals and quasi-judicial authorities operate in different ways in virtual form.

What we've seen is that their methods of operation are varied and unique. Even for a lawyer, it is difficult to handle multiple formats of the same petition, different types of platforms or websites utilized by different courts across India.

If someone needs to see the case status or a judgement in a specific case, there is a lack of consistency in terminologies for the same type of civil litigation.

A litigant or a lawyer based in Delhi may find it difficult to locate a judgement or the status of a case pending at the High Court of Mumbai, Kolkata, or Chennai because different courts use different web sites that function in different ways.

Forget about courts in different areas of India; even in Delhi, District Courts, High Courts, Supreme Courts, and various Tribunals employ different platforms and forms of websites for their digital operations. The method for submitting a petition before the High Court of Delhi differs significantly from the procedure for filing a petition before the District Court of Delhi.

Aside from operating in digital mode, there is complete inconsistency in the operation of different courts in general. When the matter is listed in the High Court of Delhi, the litigant is informed of the next date on the same day.

When it comes to different courts, such as the High Court of Mumbai or Chennai, the next date is not normally granted. Even before the Hon'ble Supreme Court of India, the next date is not usually announced on the day it is listed. The next date is communicated to the Advocate in the normal course.

Without the assistance of a local lawyer, a lawyer sitting in Delhi cannot even file a caveat petition before the Hon'ble High Court of Mumbai. The reason is straightforward. The procedure and format for filing a caveat petition before the High Court of Delhi differ significantly from that of the Hon'ble High Court of Mumbai.

Green papers are required for filing in the High Courts of Chennai and Mumbai, while white papers are required in the High Court of Delhi. Why is there so much inconsistency in procedural formalities is beyond comprehension.

Despite India having been united politically, one system of government has been accepted, but the one system of procedural administration is still what is regarded as a mirage in the judiciary. To ensure that Indian citizens can receive quick relief from the Indian justice system, it should implement one nation, one judiciary, and one type of procedural requirement.

Thought there is no any specific provision which provides for equality of procedural rules across the country. However Article 14 of constitution of India promises right of equality to every Indian Citizen. The said Article 14 is reproduced as under:

Article 14 in The Constitution Of India 1949
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth."

It is very difficult to understand as to how different courts achieving the afore mentioned promises made by Article 14 of constitution of India by not following the same kind of procedural formalities in terms of filing and functioning of different courts, whether physically or digitally?

Why is there a need to use different formats of filing the same petition before different courts? The issue is further compounded by different types of web sites being used by different courts. It serves no purpose to use different terminology for the same type of petition before different courts or tribunals.

Lack of procedural uniformity in Indian courts would be the biggest obstacle in making the Indian judiciary live up to its promises of providing easy, fair, and speedy dispositions to litigants.

Lack of procedural uniformity has made the right to equal treatment in law for every Indian citizen seemingly otiose. It is imperative that one nation adheres to a single procedure, both in terms of digital and physical court proceedings. If this is true, only then can procedural formalities be said to be the handmaid and not the mistress of Justice.

Written By: Ajay Amitabh Suman, IPR Advocate, Hon’ble Delhi High Court
Email: [email protected], Ph no: 9990389529

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