Column : The Moily agenda

Written by Bibek Debroy | Updated: Jun 12 2009, 03:12am hrs
In attaining higher GDP growth rates, legal reforms are now recognised as a critical ingredient. The Indian legal infrastructure needed reforms in any case, even if the post-1991 cycle of economic reforms hadnt occurred. However, liberalisation has provided an additional trigger. The word law has various interpretations. Consequently, the expression legal reform also needs to be pinned down. There are three layers in legal reform. First, there is an element of statutory law reform and there are three clear elements to statutory law reformweeding out old and dysfunctional elements in legislation, unification and harmonisation and reducing State intervention. Second, legal reform has to have an administrative law reform component, meaning subordinate legislation in the form of rules, orders, regulations and instructions from ministries and government departments. Often, constraints to efficient decision-making come about through administrative law rather than through statutory law and bribery and rent-seeking are fallouts. Finally, the third element of legal reform is what may be called judicial reforms, though faster dispute resolution and contract enforcement are not exclusively judicial issues. Most concerns about the Indian legal system are about speed of dispute resolution.

It is possible to draw a distinction between the terms pendency, arrears, delay and backlog, often used synonymously. Pendency simply means the total number of cases in the court system. Indeed, high levels of pendency indicate faith in the judicial system. Arrears are an excess of new cases over disposed cases. Pendency is a stock, arrears are flows. Arrears contribute to delays. Delays are old cases that arent disposed of. The word backlog is sometimes used in the sense of pendency and sometimes in the sense of delays. Given these different senses in which these terms are used, perhaps one should eventually transit to a term like court congestion. This will also be more in conformity with international usage. The total pendency in the court system, excluding other quasi-judicial forums, now amounts to 29.1 million46,926 in Supreme Court, 3.7 million in high courts and 25.4 million in lower courts. A 29.1 million pendency figure is horrendous, even if data on arrears arent that bad. The earliest government committee to examine the problem of pendency and arrears was Rankin Committee (1924) and there were high courts arrears committees in 1949 and 1972, several Law Commission reports, an estimates committee in 1986, the Satish Chandra committee in 1986 and another arrears committee in 1990. These recommendations fit into the pattern of supply-side solutions, with increased IT-usage as a recent trend.

On April 29, 2005, the then President of India addressed an all-India seminar on judicial reforms, with special reference to arrears and identified the main reasons for delays as: (a) inadequate number of courts; (b) inadequate number of judicial officers; (c) ill-equipped judicial officers; (d) dilatory tactics by lawyers and litigants; and (e) role of court administrative staff. There are some obvious generic solutions. First, there is the natural conclusion that the number of judges and courts needs to be increased. Second, this raises the issue of financial autonomy (and infrastructure) for the judiciary. Third, there are procedural improvements required. Fourth, while the three points made above are generic, there is a case for focusing on certain types of casesgovernment litigation, Negotiable Instruments Act, Motor Vehicles Act, etc. Fifth, generic improvements require large sums of money. Experiments like Lok Adalats, fast track courts, family courts, mobile courts, nyaya panchayats, gram nyayalayas, peoples courts and womens courts can accordingly be perceived as driven by the motive of getting a bigger bang for the buck. This has been described as load shedding and a hollowing out of the Indian State, though that may amount to stating it a bit too strongly. There is the low hanging fruit of speeding up dispute resolution when both parties want to opt out and want speedy settlement, typified in some recent and successful experiments.

This is the canvas for Veerappa Moily, though one must remember that criminal law reform is outside ministry of law & justice. The ministry has three wingsLegislative Department, Department of Legal Affairs and Department of Justice. Since 1991, relatively non-functional ministers have reduced the ministry to the second. Its the first and third that are more important, though one shouldnt forget Judges Inquiry Bill and National Judicial Council. So far, indications are judicial reform will figure prominently in the Moily 100-day plan and there is no dearth of recommendations floating around. Many are relatively revenue neutral and several (such as those documented by National Judicial Academy in Bhopal) are procedural, requiring little change in substantive law. The Congress manifesto mentions judicial reforms, with an emphasis on gram nyayalayas. However, there is a danger of the ministrys core agenda being overtaken by terrorism, security, police reforms and broader issues of governance and administrative reforms.

The author is a noted economist