Author:- Janvi Vishnani

Introduction

Law is a set of rules, precedents, and legislation applicable within a specific jurisdiction. The primary function of the law is to provide justice and how it is served is known as the process of litigation. In the layman language Litigation is a process through which cases are filed in the court of law. The term “Litigation” is associated with civil law but in the general litigation process is applied in a criminal proceeding as well. Civil law is concerned with the conflict between parties or organizations in which the plaintiff claims some monetary benefits.

However, criminal law is the body of law that usually deals with the offences that are criminal and can award punishment stated in the respective statute under which the offence is committed. The litigation process in both the laws differs on the account of how the cases are filed, who can file the suit, where the proceedings can be initiated, and what are rights available to the parties. This article explores the area of litigation.      

Hierarchy of Courts in India

Like every other nation, the Indian judiciary also follows a certain hierarchy in terms of the courts which hear the civil matters in the country. The Indian judicial system lays more emphasis on this hierarchy and it is very particular about it. The hierarchy of courts that India follows is as follows: –

• Lower Courts: – Various states have a lower court (subordinate to District Court) which are known as the “Munsif Courts” or “Small Causes Court”. They have the original jurisdiction and deals with cases that are of lower amounts. Civil courts in some states do have unrestricted monetary jurisdiction.
• District Courts: – In India, District Courts handle legal issues at the municipal level. Such courts, led by a judicial officer, are regulated operationally and judicially by the High Court of the states to which the District belongs. The District Courts are accountable to the High Courts of their particular regions. The High Court of the State hears all appeals from the District Courts.
• High Courts: – These are superior to the district court and have authority over the territory of the state. They are headed by the Chief Justice which is appointed by the President. At present, the country has a total of 23 High Courts. The order of these courts is binding on every subordinate court. Apart from entertaining the appeals from lower courts but also has various other jurisdictions one of such is the writ jurisdiction provided under Article 226.
• Supreme Court: – The Supreme Court of India is countries apex court and has a variety of different jurisdictions. The Supreme Court’s appellate jurisdiction in civil suits is defined by the Indian Constitution. In civil cases, appeals are allowed to the Supreme Court if the High Court assures: (a) that the lawsuit involves a substantive issue of law of public interest and (b) that the said issue, as in the High Court’s perspective, requires a resolution from the apex Court. The Supreme Court has the power to rule on the case in whatever way it sees fit.   

Stages of Civil Litigation

Civil litigation is the method of resolving civil disputes in a court of law. Civil cases are cases involving individuals and their families, such as a marriage or a contract conflict between companies. Civil lawsuits involve an entity or company filing suit against another individual or business, rather than a person versus the government as in a criminal case.

A basic framework for bringing a civil lawsuit has been developed. The court has the power to dissolve the case if the protocol is not practiced. The case is moved initially, including the “vakalatnama” and any court fees that may be needed. Defendants are served with notices to respond after receiving the information about the case. The defendants respond in writing, which is referred to as a “written statement”. The complainant then responds to the “written statement” with a counter-argument.

The court decides the key issues by reviewing the case, the “written statement”, and the counter-argument, a process known as “framing of the issues”. Following that, all sides must send paperwork and a record of witnesses to back up their claims. Following that, witnesses are questioned and hearings between the sides’ attorneys are held. After that, a decision is made. Whenever an injunction is entered against a participant in a lawsuit, it does not mean that the person has exhausted all of his or her options. Appeals, revisions, and reviews are all options available to the party.

• Appeal: – An “Appeal” must be submitted in the specified format, with the appellant’s signature and a valid certified copy of the judgment. The reasons for opposition must be listed beneath separate titles and listed sequentially in the appeal. The court may issue the applicant to surrender the challenged sum or provide certain protection if the challenge is about a money judgment.
  Without the approval of the tribunal, a claim or contention not stated in the application cannot be presented for discussion. Likewise, the argument or action that the applicant did not raise in the subordinate court could not be raised in the court of appeals without the court’s approval. An appeal to the High Court must be brought inside of 90 days, and appeals to other courts must be brought inside of 30 days.

• Review and Revision: – A High Court can order the record of any ruling made by a lower court where no challenge exists when the lower court seems to have (I) exercised a power not conferred upon them by statute, (ii) fails to enforce an authority so conferred, or (iii) behaved unlawfully or through procedural inconsistency in the practice of its jurisdiction. The same court that determined the lawsuit conducts a summary of the decision.
  Every individual who believes he was being wronged by (a) a decision or order from which, even though “an appeal” is permitted, no challenge has been forwarded, or (b) a decision or order where no challenge is permitted, can appeal to the court that moved the decision or issued the order for a revision of the judgment, based on the claimant’s emergence of new and significant information or proof which, after exercising the due diligence, has been discovered by the court that moved the decision or issue.

Reasons for Delay in Civil Litigation

The Judiciary has been focusing majorly on solving the issue of delay in the litigation process in the country as several reasons contribute to the delay in providing timely justice to a large section of our country. Some of the reasons are: –

• Insufficient numbers of Judges and increased Vacancies: – The key cause of the backlog is the lack of judges concerning the nation’s population.  One more factor that contributes to delays is a large number of vacant judgeships. “The Supreme Court (Number of Judges) Amendment Act, 2019”, was newly enacted, increasing the number of judges in the apex court from 30 to 33 excluding the Chief Justice. Currently, the ratio of judges concerning the citizen is somewhere around 1:50000 which means there is only one judge for every 50000 persons in the country. Similar to this situation if we look at the number of seats that are vacant in all the High Courts of the country then it amounts to 38% of the total sanctioned strength of judges. Out of total strength of around 1079 seats, only 669 are occupied leaving a total number of 410 seats without any judgment.
  
• Constant Adjournments: – Even though Order XVII, Rule 1 of the “Civil Procedure Code” states that an adjournment could be issued a maximum of 3 times, the judiciary doesn’t appear to obey this provision strictly. This ultimately obstructs the timely resolution of civil cases.
  
• Parties’ failure to Appear: – Another factor that causes delays in civil litigation is when a date is provided for a hearing and the party fails to appear on the given date. Since the defendant is usually aware of the likelihood of a negative verdict, he attempts to obtain a number adjournments as possible to present his case. Furthermore, the parties’ failure to show up for cross-examination contributes to the lag.
  
• Failure to file a written statement on time: – According to Order VIII of the Civil procedure code, the respondent must submit the written statement within 30 days of receiving the summons. This law, although, is not strictly followed by the judiciary, so that’s another explanation again for delays in civil cases. The reality stands that this Code clause, which was intended to pace up the procedure, is being abused and not properly observed.

Criminal Litigation

Evolution of the Criminal Justice System

The countries Criminal Justice System has an ancient legacy, as it’s one of the world’s oldest systems.  In ancient times, the Hindu dynasty ruled India. The ancient “Indian Criminal Justice System was based on the principle of Dharma, which translates to “correct behavior” in English.  The emperor had no power of his own and had to rely on Dharma for his power. In the Vedic Period, the definition of offenses was primarily associated with crimes, which served as the norm for punishing the individual who perpetrated the crime.

Following the Hindu Ruler, the Mauryan Dynasty contributed to the development of the criminal justice process by creating a strict legal system that included mutilation and capital punishment for minor offenses. The Muslim Empire ruled country from the 8th to the 15th centuries, which was the next stage in the development of countries’ criminal justice systems. To put it another way, they implemented the Islamic criminal justice system (Al-Sharia Al-Islamia). The Al-Al-Islamia Sharia framework had strict laws, such as (blood for blood) and chopping the arm as a punishment for robbery.

The major development that was seen in the country’s “Criminal Justice System” came during British rule in India, especially around the 17^th century. There was an introduction of a modern approach in setting up a systematic system for criminal acts. This was the era when the codification of various laws and codes began to be formulated and a proper hierarchy of courts first came into existence during this period. The current scenario after Independence has been quite changed the penal laws are getting changed to meet the need of the current situations. But still, various reforms need to be introduced for keeping the criminal justice system updated which changing times.

The Procedure of Criminal Litigation

A Criminal suit can be initiated in two ways: – First, when a private complaint is filed by someone and second is when an FIR is registered. In the first scenario when the complaint is filed the court investigates the one who made the complaint and witnesses to determine whether a complaint can be filed against the suspect.

Following the inspection, the Magistrate will allow an investigation and send a statement on the subject. Once the investigation is done about the genuineness of the complaint the Magistrate will send the summon to the accused. On the other hand, in the case of an FIR, the case begins from the moment the incident took place. FIR is details about the beginning of an offense provided to the officers by the aggrieved himself or by someone else.

After the complaint or the FIR filing the investigation of the case by the police personnel who is appointed as the in-charge begins. The one against whom the case has been filed or the warrant has been issued may under Section 438 of the Cr.P.C. apply for the anticipatory bail in the Sessions Court or the High Court of the respective State. In a situation where the accused has already been arrested then he has the option to go for regular bail provided under Section 439 of Cr. P.C.   

If the accused thinks that the FIR registered against him has no validity, then he can also make an appeal in the High Court under Section 482 of Cr. P.C. to dispose of the FIR and put a stay on the ongoing trial on him in the lower court. The High Court scrutinizes the whole issue and provides orders accordingly.

After the investigating officer completes his investigation he submits a police report in court. A police report is a finding reached by the investigator after reviewing the relevant facts, gathering evidence, questioning witnesses and recording their testimony, and performing certain other actions required to complete a reasonable investigation, involving forensic and clinical examinations if needed. The investigating officer presents this finding to the judge in the form of a report. After going through the report submitted by the police and other relevant documents if the court considers that the accused looks guilty then charges are framed upon him under will he will be prosecuted.

When framing of the charges is done, the accused is offered the choice of a plea bargain – this option is provided in the hopes of reducing the accused’s sentence. If the defendant pleads guilty, the court can proceed to convict him or her for the crime committed. Section 241 of the Criminal Procedure Code governs guilty pleas.

When the person pleads not guilty then the proper trial begins in the court and the prosecution is asked to present the evidence to substantiate the guilt of the accused. Also, the court asks them to produce witnesses to support the arguments. After that, the defense lawyer cross-examines the witnesses and tries to find the loopholes in the evidence and challenge the credibility of the witnesses. The accused has the right to speak and to clarify the details and situation at hand under Section 313 of the Cr.P.C.

If an accused does not get an acquittal, the accused is given the chance to provide testimony and proof to justify their case. Oral and photographic testimony is also available to the prosecution. All proof must be presented following the Indian Evidence Act. After the defense side has presented their evidence both the side lawyers engage in an argument to substantiate their points. In the end, the court announces the judgment.

In a warrant case, the sides are unable to disagree upon the level of penalty to be imposed. The court has complete authority over penalties. The prosecutor has the right to challenge if the accused is acquitted. The right to approach a higher court is mentioned under Section 374 of the Criminal Procedure Code.

Right of the Accused Person

There is a very famous saying in the Indian Judicial system which says, “Hundred criminals can be set free but not a single innocent individual should get punishment”. Based on this principle certain rights are provided to the accused to provide the equal opportunity to defend himself and to prevent any wrong conviction i.e., without any genuine reason to be convicted. There are a series of rights that the accused person can avail to prove himself innocent. These right are as follows: –

1. Protection to Accused under Arrest: – The Indian Penal Code protects the accused who are being arrested by the police. The Code U/s 330 and 331 offers the accused defense from unwarranted abuse while in detention, including the extortion of details against his consent. In addition, it states that a policeman will be charged if he violates or exceeds his authority beyond cause.
   
2. Free Legal Aid: – There are numerous incidents where the person accused under some case is someone who has no means to defend himself and cannot arrange a legal practitioner due to his economic condition. In this case, the person is denied his basic fundamental right to equality under Article 14. To overcome this lacuna, the parliament through the 42^nd Constitutional Amendment introduced Article 39A to give free legal aid to poor and marginalized sections. Free legal aid is also guaranteed under section 12 of the National Legal Service Authority Act, 1987. The Supreme Court declared in Khatri v. State of Bihar that the state has a constitutional responsibility and responsibility to offer free legal assistance to the destitute and needy to maintain their basic human rights and the concept of natural justice by providing a free and fair trial.
   
3. Right to be heard: – The political, social, economic justice has been ensured by the preamble of India to its all citizen. Political, social, economic justice means “natural justice”. The concept of natural justice is the backbone of all justice systems. The main essentials of natural justice are –Nemo judex in causa sua, Audi Alteram Partem.

Nemo judex in causa sua means no one can be a judge in his cause because it leads to a bias. Bias is defined as an act that leads to unjust behaviour in regards to a party or a specific issue, whether it is done consciously or unconsciously.

Audi Alteram Partem consists of three Latin words that signify that no one may be sentenced or punished by a court without having a fair chance to be heard. The literal definition of this rule is that all sides should be given an equal opportunity to submit their respective arguments and a fair trial should be held. This is a fundamental law of natural justice, and it states that no one should be punished without a legitimate and acceptable reason.

There are further provisions in the Code of Civil Procedure that relate to the right to be heard fairly and impartially. According to Rule 13 of Order IX ex parte decision should be set aside, and only should be given when there is an adequate reason. The benefit of such a regulation is that, despite the existence of an ex-parte judgment, both parties get a chance to present their side and arguments in front of the Court and receive a fair trial. It is also termed as a “fair hearing rule”. Components of fair hearing are flexible and differ from case to case.

• Right to Speedy Trial: – “Justice delayed is justice denied”. It is considered that the state, as custodian of the constitution and citizens’ basic rights, owes it to victims to give prompt justice and to avoid excessive delays in criminal proceedings that result in a wrongful conviction. The need for a speedy trial is emphasized to protect the defendant against bias such as witness deaths, disappearances, or the inability to recollect events owing to the passage of time.

In the case, Mangal Singh v. Kishan Singh, “an unreasonable delay at the end of a criminal trial has a profoundly negative effect on society generally, and particularly on the two parties of the case.”

The court held in Kishore Singh Ravinder Dev v. State of Rajasthan (1981) that the Indian constitution, evidentiary and procedural laws contain elaborate provisions regarding the legal protection of an accused person’s rights during a trial, to protect his human dignity, and to provide him with the benefits of a “just fair”, and “impartial trial” by a court of law.

Apart from these rights the Indian Constitution also expressly provides certain rights to the accused person under Article 20. These rights are: –

1. Article 20(1): – This protects the accused against Ex-Post Facto laws. It implies that when an action performed by the convicted party wasn’t a crime at the moment it is committed then they cannot be punished for that crime. Also, the accused would not be liable to a higher punishment than the maximum penalty that could have been imposed by the statute in effect when the crime was committed. However, if there is a change in the quantum of punishment that could favor the accused then it will be applied.

• Article 20(2): – This protects the accused from double jeopardy. This suggests that nobody can be prosecuted twice for a similar crime or wrongdoing. The doctrine of “double jeopardy” states that once an individual has been convicted of a crime, he could not be charged again for the same claim or a similar crime.

The Supreme Court stated in Natarajan v. State that “a person who has been tried by a Court of competent jurisdiction for an offense and convicted or acquitted for such offense shall not be liable to be tried again for the ‘same offense’, nor on the ‘same facts’ for any other offense for which a different charge than the on-going conviction or acquittal remains in force.

• Article 20(3): – It protects Self-Incrimination. This states that no accused person can be forced to act as a witness against himself. During the trial or in detention, the accused has the freedom to make some consensual declaration or admission beyond fear of violence. This protection provided to the accused applies to anyone charged with a crime under the statute, and it forbids any forms of unlawful coercion to force someone to testify toward oneself.

The Supreme Court declared in Nandini Satpathy v. P.L Dani that Article 20(3) extends to the stage of police questioning that does not begin in court. It also covers and protects the accused in the case of any current or imminent offenses that may dissuade him from making a voluntary disclosure.

Conclusion

In the above article, we have seen how does civil and criminal litigation works, how the process of civil and criminal suits is different, but the ultimate goal of both is to create a safe and hassle-free society. But nowadays the dynamics of society are fast changing. We have witnessed various changes in the codes that were formed to govern the process of providing justice. The process of adapting to the change in the society continues and there must be reformation in the existing procedure if the situation and the setup of the country at that point of time need to make it more effective.

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Janvi Vishnani is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing a BA.LL. B (Hons).