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Procedural Justice in the Supreme Court
A concern for new lawyers with fresh minds
Barrister Md. Abdul Halim
As opposed to substantive justice which is pronounced by way of judgment by the court or tribunal, procedural justice is the system of realising or ensuring the substantive justice and if you cannot realise that justice, the whole concept of substantive justice and its mechanism, i.e, the judicial system itself come into question. The matters of procedural justice come at different stages of a judicial proceeding: it could be at the stage of filing a case; it could be after hearing and getting the order or judgment implemented or realised. However, all the stages of procedural justice are handled by some traditional officers, clerks, peshkers, bench officers, ardalis, peons etc. whose conducts are rarely controlled or questioned under administrative mechanism in our judicial system and both the litigants and new lawyers have to face unwanted problems every day in getting the fruits of substantive justice realised if not they are prepared to get that at the cost of bribes, tips or baksis whatever terms you phrase them.
Let me talk about the procedural justice involved in a writ matter in the Supreme Court. Suppose, you have drafted a writ petition on behalf of a litigant and want to file it in the section of the High Court Division and get it heard. You have a very fresh mind while working in the chamber for a litigant by drafting and preparing the writ application but your eyes will turn blue when you will go to the section people for filing and submitting to the Bench for hearing. The stages before getting a writ heard are as follows:
Step 1: Going to the Bar Association Office to get a seal of the Bar Association. This is without any hassle and you do not have to persuade anyone at that place.
Step 2: Going to the record section (writ) where your petition will be verified whether proper stamp has been affixed and then a number of Writ Petition will be given (e.g. WP No. 2179 of 2004). Here your writ petition is filed and numbered but at this stage you will first face the situation of persuading; you or your clerk will have to give some tips or baksis; the people in the section will claim it 'as of right'.
Step 3: Going to the Commissioner of Affidavit. The Commissioner will check all the pages and annexures whether the petition is in order with everything. The Commissioner will initial at the bottom of every page and will sign every annexure. This is to prevent any further insertion of pages without the authority of the Commissioner. The rationale is that there is no system of taking direct evidence in the Supreme Court and hence you need to get it verified by the Commissioner of Affidavit. The petitioner needs to be present in front of the Commissioner for verification of his age, sex etc. However, giving some tips to the Commissioner will mean you can get it signed without the presence of the petitioner or his authorised person. Even if the petitioner is present, still you will have to give tips or persuade the Commissioner and he or his clerk will claim it 'as of right'. If you do not give tips, he might refuse or delay your petition. Once the Commissioner of Affidavit has affixed his signature and initials, you will have to go to an adjacent table where one sits only with the seal of the Commissioner and you will have to persuade him/her again. You will wonder whether this person who sits with the seal of the Commissioner of Affidavit is at all an employee of the High Court Division.
Step 4: Going to the Attorney-General's Office to give the Notice Copy of your petition. The Attorney General's Office will accept the copy and seal the main petition that a copy has been accepted by the government. The seal will also be accompanied by the court number where the matter will be moved. This is to make sure that it is not moved in any other court; this is also to make clear that the Assistant Attorney General from the Government side will have the copy of the petition in that particular court while the petition will be heard. The copy received by the A-G's Office will be sent to the numbered court and not elsewhere. Here again the people receiving and sealing the copy will need to be persuaded.
Step 5: Giving the main copy and the copy for the second judge to the Bench Officer of the court where your petition will be heard. Writ is an unlisted motion and many courts do not maintain any serial number of unlisted motion. You will have to wait for your petition to be called by the Bench Officer for hearing. Only two days of the week are allocated for motion days and these days are very busy. If you do not manage the Bench Officers or persuade them, your petition may not be called for even a month; it will go at the very bottom of the piles of the petitions and you will not be able to get it heard. However, there are some courts which do maintain serial numbers for unlisted motion and there is less likelihood of bad practices being exercised by the Bench Officers of those courts.
This writer is practicing in the Supreme Court .