23 Nov 2011 TNIE
Aditya Swarup is a lawyer and currently pursuing his MPhil in civil procedure from the University of Oxford.
In 2009, the Union government released the vision document '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 of15 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 (ICY) support systems. A large part of the reforms 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. Under the scheme of the 13th Five Year Plan, around Rs 5,000 crore is alleged to have been allocated for the purposes of overhauling the judicial system. With more than three crore cases pending in courts, it is quite clear that a gargantuan effort would be required to address the case backlog. Will the mere allocation of such vast monetary means provide the necessary fillip for reforms implementation?
In 1959, a series of suggestions were made to address the increasing case load in the United States. The reforms that made their way out of these suggestions were to increase the number of courts, and judicial officers, and provide better case management systems, similar to those envisioned and proposed to be implemented in India. The result was contrary to what was expected. The records showed that the caseload actually increased subsequent to the implementation of the reforms. Similar measures were suggested in the UK with the same results. We now know the two main reasons for the failure of these measures - they failed to address the culture of litigation prevalent in the country and they had insufficient case management procedures to check the practice of giving extensions to litigants.
The legal reforms proposed in India suffer from similar deficiencies. In a landmark paper by renowned 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, realising the growing efficacy of the legal system, it would merely result in more litigation. To buttress his argument, he drew upon a rather unusual analogy - while initially a new highway would serve the purpose of easing out traffic, road conditions would in fact 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 why people break the law and 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. 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.
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 trial and refined procedures for the submission of documents. While formerly being introduced in the US and the UK, the measures proved ineffective because of the lax attitude of the judges in granting extensions despite such deadlines - a problem frequently observe in India. Today, the UK is debating whether to introduce a 'no-nonsense' approach in their procedural law, implying that judges cannot 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 realise 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 advocates the use of ICT in courtrooms. These may involve filing documents online rather than in court, computerisation 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 e-mail. Such systems are immensely efficient in Singapore and Hong Kong.
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 - 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. 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 faced the same issues.
It is 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.