Unlike economic changes, legal reforms are on

Additional focus can, in fact, solve the backlog problem

Bibek Debroy

In the last two columns, I described the backlog in the court system. There have been at least three letters from readers since. The upshot of those letters was that I had not said anything constructive about reducing delays. True. My intention in those columns was to describe the data, the magnitude of the problem. What can we do to reduce delays? The answers are not difficult to find.

Several committee reports have gone over them ad nauseam, the earliest, the Civil Justice Committee (the Rankin committee) going back to 1924. There was a High Courts Arrears Committee in 1949 and an Uttar Pradesh Judicial Reforms Committee in 1950. There have been several Law Commission Reports. The recommendations can be divided into four broad heads: enhance supply; improve efficiency and productivity; reduce demand; and focus on specific areas. This is not a watertight compartmentalisation and there are spillovers in the sense that it is not always obvious under what head a specific recommendation should be included.

Enhancing supply includes increasing the number of courts and judges, filling up vacancies on time, curbing vacations, dispensing with the practice of appointing sitting judges on commissions of inquiry and so on. Such recommendations are as old as the hills, or at least as old as 1924. The fast track courts, started since April 2001, also belong to this category. Improving efficiency and productivity (with the same number of judges and courts) is of more recent vintage. This includes procedural law and curbs the granting of adjournments and verbal arguments, bunching of cases and specialisation among judges, reducing delays in supply of certified copies of judgments and orders, and computerisation, including that of dockets.

Two developments need to be mentioned. First, amendments to the Civil Procedure Code that have already been made. Second, the success of the Supreme Court in bringing down arrears significantly. While amendments to the Civil Procedure Code have already been made, we now need a new Criminal Procedure Code and an Indian Evidence Act. On the former, there is a committee in place and one hopes its recommendations don’t take too long.

While supply-side improvements and changes have been appreciated for a long time, the necessity of including the demand side has only been recognised recently. For example, alternative dispute resolution channels like arbitration, conciliation and mediation. The old Arbitration Act of 1940 eventually plugged everything into the court system. The new Arbitration Act of 1996 imparts some finality to arbitration proceedings. The lok adalat system can be interpreted as conciliation and mediation.

Unfortunately, even when such alternative channels permit adoption of procedures different from standard court procedures, these fora sometimes adopt standard procedures. This doesn’t help the cause of speedy disposal. Thanks to a survey conducted in Karnataka in the early 1990s by the National Law School, a figure has come to light. In 60 per cent of civil cases, the government is litigating, sometimes on both sides. A large chunk of these cases is appeals and in 90 to 95 per cent of the cases, the appeals are lost. That is, they shouldn’t have been made in the first place. This reflects on the quality of government counsel and the costs are borne by society.
The government crowds out private citizens from courts. The problem is that costs are borne by society at large, the costs of pointless appeals are not recovered from errant government officials.
In some consumer cases, the principle of recovering costs from errant government officials is followed. Can the same principle be followed for appeals where private citizens are involved on one side?

In addition, state law ministers agreed in 1994 that cases where the government was involved on both sides, should not clutter up the court system. Unfortunately, this decision has not been implemented. While everyone agrees on the need to curb government appeals, there is debate when one mentions the issue of curbing appeals in general. Why should there be a second appeal? Can writ petitions be more discriminate? Do all of them have to be admitted? Can’t the original jurisdiction of some courts be curbed?

The focus on specific areas is of still more recent vintage. The present law minister has been talking about the large number of under-trial prisoners, who have often been in jail (on petty crimes) for terms that are longer than the mandatory maximum sentences for those crimes. He has also mentioned cases under the Motor Vehicles Act, bounced cheques under the Negotiable Instruments Act and maintenance claims. To this, I would like to add old cases and a focus on Allahabad and Kolkata, a point made last week. As also land-related disputes. These will become tractable if we have proper land records. I would also like to mention economic policy and related legislation. Many indirect tax cases would simply disappear if we had a proper VA T. Many labour disputes would disappear if we had sensible laws on industrial relations. Many general disputes would disappear if we amended the Constitution to make it more realistic and also drafted legislation with an eye on harmonisation. There are several so-called socio-economic crimes for which we don’t need criminal provisions. With criminal provisions, costs are borne by society. With civil provisions, costs are borne by the guilty individual. That is the way it should be.

For the benefit of the readers who complained, my intention was not to convey the impression that the legal system is perfect. Far from it. Post-1991 economic reforms, the consciousness has begun to shrink in that the legal system is a constraint to growth. This identification is unfortunate, in the sense that even if economic reforms hadn’t happened, the legal system needed revamping. I intended to convey that in the last few years, several welcome developments have happened and these need to be recognised. Because unlike economic reforms, which are stagnating, legal reforms are happening. With more focus, the backlog can be brought down.