Fast-tracking Justice

Diljeet Titus is the lawyer on a case that hasn’t had a single argument in seven years. His client, a Canadian MNC, filed the suit in 1999 and has lost $11 million due to the protracted delays. “My clients have given up on the Indian justice system. The opposite council keeps requesting adjournments,” says Titus, managing partner of Titus & Co, a Delhi-based law firm.

India’s courtrooms are littered with similar examples of delay and dithering.

Dr. M.S. Kamath cites a medical negligence suit filed in 1998 by an airline employee. The case is still pending in Mumbai’s consumer courts, though the patient died a few years ago. Kamath, who is Honorary Secretary of the Consumer Guidance Society of India, has been fighting medical negligence cases on behalf of patients for over 20 years, almost all of which have yet to reach a conclusion. “And the consumer courts are supposed to be fast-track courts? This system makes me sick,” he fumes.
This tardy legal process has resulted in a backlog of over 3 crore cases. The delays not only deny the common man access to justice, a fundamental right, but also proves a disincentive for greater foreign investment into India.

Image: Madhu Kapparath for Forbes India

Streamlining the legal system

Now Union law minister M. Veerappa Moily is attempting to plug those holes.

Roadmap To Reform
In October, Moily unveiled an ambitious roadmap for judicial reforms to reduce the average life of litigation from 15 to just three years — a task he wants accomplished by December 2011.

Moily’s plan targets reducing court congestion by placing 700 judges on contract in select high courts having greater pendency. Their target would be to clear at least 2,500 cases per year. In addition, Moily wants to set up 5,000 supplementary courts in the next three years, to be serviced by requisitioning over 15,000 retired judges for a two-year term. In October, the government also launched Gram Nyayalayas or village courts, across 200 villages. The plan is to increase that number to 5,000 in the next two years.

A National Arrears Grid will analyse the exact number of arrears in every court and monitor their “continued reduction”.  A Special Purpose Vehicle will provide technical support to the judicial system by setting up e-systems. It will take as partners IT giants such as TCS, Infosys and Wipro as well as Innova (the satellite communication provider).

Will it work?
Right now with 15,000 judges the system is processing and giving judgments to 1.5 crore cases annually. Add another 15,000 judges, and you can comfortably wipe out the arrears in two years,” explains Professor Madhava Menon, Founder Director of the National Law School of India, University in Bangalore, and former Director of the National Judicial Academy in Bhopal.

But not everybody in India’s legal fraternity is convinced his plan will actually work. “The Law Ministry’s vision statement, it is good as a set of goals and expectations — it helps fix your sights a bit — but one should not only be content with vision statements,” says Fali S. Nariman, one of India’s most distinguished senior advocates and a constitutional expert. “You have to have a way to implement those goals.”

Many lawyers are questioning the plan’s focus on quantity instead of quality.

“The action plan refers to numbers. It doesn’t talk about training existing manpower. Our judges can’t dispose of matters speedily because of a lack of familiarity with the subject. We have new laws coming in all the time — Intellectual Property law, Capital Markets Law — where is that training coming in?” asks Vikram Nankani, Partner, Economic Laws Practice. “Moily’s vision statement will fail if he doesn’t address the quality of judges.”

Lack of training would also hamper the retired judges Moily wants to rope in. “To bring down the pendency from 15 to three years, you have to train them in the software installation. Things like that will take at least six months. It’s far better to collect new judges — choose people studying from law schools,” says Dr. Mukund Sarda, Dean, New Law College.

A Matter of Quality
The lack of focus on quality was an issue raised at a two-day-long conference organised in Delhi a few days before the Law Ministry’s blueprint was revealed. Here, Moily met with various stakeholders across the judiciary and the government to enlist their cooperation for his plan.

Some who were present, like Maharashtra’s Advocate General, Ravi Kadam, are pleased Moily is taking into consideration former Law Commission chief Jagannath Rao’s proposal for a judicial impact assessment of laws. Rao had suggested that Parliament set aside a dedicated sum for the courts each time it drew up a law that opens the floodgates for litigation. This would equip the judiciary to upgrade infrastructure and manpower.

A good example of the need for such assessment would be the introduction of Section 138 of the Negotiable Instruments Act which deals with cheque bouncing cases. Today, more than 1 million cases filed under section 138 are pending in the state of Maharashtra.

“No one contemplated Section 138 would be used as a commercial tool by banks and other credit lending institutions. And no one assessed the impact on the Bombay High Court, because Mumbai is the commercial capital. Judges who should be tackling far more serious cases are totally clogged up with this instead,” explains Kadam. 

Specialised Courts
The government has a solution to speed up the resolution of such commercial disputes. It is planning to move a Bill that would facilitate setting up specialised commercial courts for high-value commercial disputes. “We are soon going to the Cabinet for clearance,” says former law secretary T.K. Vishwanathan, who is now an advisor to the ministry. “Commercial courts will ensure that capital is not locked up for years.”

 Illustration: Malay Karmakar

The implementation of commercial courts is part of the government’s focus on Alternate Dispute Redressal mechanisms (ADRs). But not everyone is convinced it will work.

“Empirically we know ADRs have been operating with only mixed success. The government says the system is backlogged so let’s bypass the courts and set up ADRs so people get justice more quickly. But when people don’t have faith in a regular system, that lack of confidence translates into the ADRs. Instead of setting up a new system, attack the low hanging fruits first. Why not just add to current court benches?” says Jayanth Krishnan, Professor of Law at Indiana University, who is the co-author of a recent report on the effectiveness of India’s attempts to set up alternate dispute tribunals.

The Heart of the Problem
Manipulation of time for social results — this is the heart of the problem,” says Upendra Baxi, Professor of Law in Development at the University of Warwick, the UK.

Over the years, it has become common to exploit the judicial system and use litigation as a kind of social harassment or benefit. Overcoming this long standing culture of delay and dilatory practices is perhaps the biggest challenge Moily will face in implementing his reforms.

“One thing nobody mentioned in the plan was the lawyers — and the role of lawyers and their practices in prolonging cases. Their pay regime, by appearance, sets up a perverse incentive and lawyers in India have no incentive to make things finish,” explains Marc Galanter, Professor of Law and South Asian Studies at the University of Wisconsin – Madison.

Kian Ganz, the publishing editor of Legally India, believes there is widespread opposition from a section of lawyers to some of the proposed measures.

But the government appears to be firm on implementing its reforms. According to Vishwanathan, the man tasked with the project, the government is prepared to deal with every kind of opposition. “There will always be resistance with change…we have to deal with that.”

There are reasons for optimism. Says Fali Nariman, “As Ralph Waldo Emerson once said, ‘Nothing great was ever achieved without enthusiasm.’ Mr. Moily certainly, is off to a good start.”