(An edited version of this article has appeared in the 23rd Nov. Edition of the New Indian Express and may be accessed here )
In 2009, the Union Government released a vision document captioned the “National Mission for Justice Delivery and Legal Reforms”. The document included a series of policy initiatives aimed at reducing the pendency of cases from an average of 15 years down to 3 years within a 3-year period. The highlights of the proposed initiatives included increasing court working hours, providing a greater number of courts, training judicial officers, legal education reforms and the usage of information and communication technology (ICT) support systems. A large part of the reforms however, are merely structural and institutional, and aimed at providing a greater number of facilities to accommodate the existing caseload, which does not necessarily help the existing legal framework.
The cabinet recently approved a proposal for the formation of an Advisory Council. Furthermore, under the scheme of the 13th five year plan, an estimated sum of Rs. 5000 crore is alleged to have been allocated for the purposes of overhauling the current judicial system. With more than three crore cases pending in Indian courts, it is quite clear that a gargantuan effort would be required to address the case backlog, which then begs the necessary question- will the mere allocation of such vast monetary means provide the necessary fillip for the reforms implementation. With such huge amounts of public money being poured into the system, and its implementation being in its nascent stages, a critique of the same would make for interesting and thought-provoking discussion. Keeping this as the background, it is my endeavour to mount an argument that, as optimistic as the plan may sound, it lacks the necessary foresight to cope with the rapidly developing and ballooning economy that is modern India.
Pessimistic as my perception may sound, it is, infact, supplemented by the American example, which played itself out thus: In 1959, a series of suggestions were made by a group of academic scholars and practitioners to address the increasing case load in the United States. The reforms that made their way out of these suggestions were:
(i) increase the number of courts, and judicial officers, and
(ii) provide better case management systems,
similar to those envisioned and proposed to be implemented in India. The result however, was contrary to what was expected. The records showed that the caseload had actually increased subsequent to the implementation of the reforms. Similar measures were suggested in the United Kingdom with the same results.
So what really caused such adverse results? In hindsight, we now know the two mains reasons for the failure of these measures. Firstly, that they failed to address the culture of litigation prevalent in the country and, secondly, they had insufficient case management procedures to check the practice of giving extensions to litigants. I believe that the legal reforms proposed in India suffer from similar deficiencies. In a landmark, but often-ignored paper by the great law and economics proponent, Judge Richard Posner, it was very rightly argued that increased structural reforms would have only an ad hoc effect. While being initially effective, in the long run, realizing the growing efficacy of the legal system, it would merely result in more litigation. To buttress his argument, he drew upon a rather unusual, but very effective analogy- it was drawn to the building a new highway. While initially a new highway would serve the purpose of easing out traffic, road conditions would infact induce people who had previously used other modes of transportation, to switch to driving. This would only result in leading to greater congestion. The solution is then not merely to structurally enhance the system, but to enhance it keeping in mind and providing for the social milieu in which the enhance is to be carried out, if it is to have any efficacy at all. Similarly, in proposing reforms to reduce the caseload then, one must also address the culture of litigation prevalent in the country.
Undeniably, the culture of litigation in a country has a lot to do with the attitude of its litigants, and addressing this issue would involve an inquiry into the reasons as to, firstly, why people break the law and, secondly, the implementation of laws and procedures to ensure compliance with the law.
The second reason why such measures failed, and may fail in India’s case too, is the general attitude of the system- the judges as well as lawyers. The increasing use of unimportant and irrational reasons to secure adjournments has always been considered to be a major factor in causing delay. And while it may be considered a usual rant, not much has been done to address it. The landmark Woolf Reforms which were implemented in the UK in 1998, addressed this very problem of backlogs, and failed on the very count that it failed to account for/address the issues of frivolous adjournments.
Now, India’s 2009 vision document seeks to import case management procedures to handle this problem. Case management involves the setting of deadlines for the different stages of the trial and refined procedures for the submission of documents. While formerly being introduced in the United States and the United Kingdom, the measures proved ineffective because of the lax attitude of the judges in granting extensions despite such deadlines- a problem we frequently observe in India. Today, the UK is debating whether to introduce a ‘no-nonsense’ approach in their procedural law, implying that judges cannot not grant adjournments and reprieve from missing deadlines unless there is ‘a good reason’ to miss such deadline.
Nurturing such an attitude in India would not require vast structural changes, as envisaged in the Vision Document-clear strictures against granting unnecessary adjournments would be sufficient. Judges often grant extensions and adjournments under the garb of ‘doing justice’ to the parties of the case; failing to realize that ‘doing justice’ also involves deciding the case in time. Mere lip- service is paid to the phrase “justice delayed is justice denied”.
Such an attitude must be developed alongside the use of technology as a tool for case management. The Vision Document importantly advocates the use of information and communication technology (ICT) in courtrooms. In the contemporary world, these may involve filing documents online rather than in court, computerization of judicial records, video conferencing facilities and the like. A little foresight would include notification of court dates, reminders for submission of documents and service of documents via email- thereby rejecting lawyers’ excuses for not following trial dates. Such systems are immensely efficient in Singapore and Hong Kong and have set examples to follow for other legal systems. India perhaps too, could learn a little from them.
An economic superpower, as India claims to be, requires, as of right, an efficient legal system to resolve disputes. The ‘Vision Document’ providing for the legal reforms are precisely what they say, i.e. a vision. Learning from what has been written about the implementation of this vision in the past two years, one can easily infer that the reforms focus too much on structural changes rather than key issues that have been highlighted. Indeed, a pivotal part of implementing a national policy would also involve borrowing from and learning from other legal systems, because it is imperative for us to understand that they, at some point or the other, faced precisely the same issues. It is therefor necessary for the advisory committee to not only draw from their systems, but also learn from their mistakes. Only then can we even claim to be on the right path to overhauling our legal system. It is only hoped that the advisory committee being formed to implement the reforms takes note of these concerns.
