In attaining higher GDP growth rates, legal reforms are now recognised as a critical ingredient. In a somewhat belated official recognition of the importance of legal reforms, Economic Survey 2004-05 had a section on the infrastructure of contract enforcement. The Indian legal infrastructure needed reforms in any case, even if the post-1991 cycle of economic reforms hadn?t 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 reform?weeding 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 the 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.
In reform initiatives since 1991, judicial reform has often remained outside substantial liberalisation initiatives. ?If there is one sector which has kept away from the reforms process it is the administration of justice.? This is despite the problem being recognised. ?There was, no doubt, a time when judiciary was highly respected by the people who had faith in the quality of justice, dispensed with promptly by the judges. Now the people have started loosing (sic) faith in the entire judicial system because of every day increasing arrears? It is a usual phenomenon to hear the conversation between suitors that they are not likely to reap the fruits of litigation during their life time. Eminent jurists have gone even to the extent of observing that our justice delivery system is cracking under the oppressive weight of delay and arrears. It has been repeated ad nauseam that to delay justice is to deny justice?. From time to time, public attention has been drawn to this sorry state of affairs and though the matter has been frequently discussed both in the Parliament and outside, yet the problem has defied any solution. Pandit Jawaharlal Nehru, while addressing a conference of State Law Ministers expressed alarm at the slow pace of the wheels of justice and pleaded for a change of attitude and a genuine effort to accelerate the judicial machine which according to him was rusty and outmoded.? The Gujarat High Court remarked that the life span of a civil case was, on an average, between 8 and 12 years.
For those unfamiliar with the details of the Indian judicial structure, the following will be useful. There are around 12,000 courts?1 Supreme Court, 21 High Courts, 3,150 District Level Courts, 4,816 Munsif/Magistrate Courts and 1,964 Magistrate II and equivalent courts. Only 6 of the High Courts have original jurisdiction, that is, civil suits can be directly filed in these courts, provided the monetary value of the suit is above a certain amount.
These are the High Courts of Bombay, Calcutta, Delhi, Himachal Pradesh, Jammu & Kashmir and Madras. The minimum monetary values admissible differ among these 6 courts. Other High Courts are appellate courts. In states where the High Court does not have original jurisdiction, even disputes involving large sums of money have to go through lower courts, which often do not possess requisite expertise to adjudicate on complicated matters. The case eventually winds up in the High Court, but only after delays. Even when High Courts have original jurisdiction, the monetary threshold is sometimes so low that cases unnecessarily go directly to High Courts.
All High Courts also have additional original jurisdiction under specific statutes. Civil and criminal cases are handled by the same court. Because of non-judicial reasons, criminal cases sometimes receive priority, increasing transaction costs for civil cases. There are other problems of overlap too. A district magistrate has to deal with land revenue cases and general administration, but is simultaneously the appellate authority on criminal cases.
There is no clear distinction across administrative and judicial responsibilities. A judicial reform framework primarily needs to target District and Subordinate Courts, because these are usually the trial courts. To add to the court system, there are tribunals and other quasi-judicial forums. One should also mention that Constitutional matters are not within the purview of the lower judiciary.
Although writs are meant to be extraordinary remedies, they account for a large chunk of the volume of litigation.
Despite caveats to cross-country comparisons, such studies often link economic growth to ?rule of law?. There is also the World Bank Institute?s Governance Matters set of indicators, with a specific head of rule of law. In 2004, among 209 countries, India had a percentile rank of 50.7% for rule of law.
Within judicial reforms, one can detect at least four strands in proposed reforms.
First, there is the question of judicial strength, though the number and skill-sets of non-judicial staff are equally important. This is a supply-side solution whose absence is the most commonly cited reason for court congestion and delays. However, this is also linked to vacancies, the judicial appointment and promotion process, and judicial workforce planning. Second, there is a set of reforms linked to improving judicial efficiency and court productivity, through education/training, better court administration in non-judicial functions and improved case and case-flow management, facilitated by infrastructure improvements. This too is a supply-side solution. Third, as a sub-strand to number two, information and communication technology can specifically be used to enhance productivity. Fourth, demand for adjudication can be reduced through alternative channels of dispute resolution (mediation, conciliation and arbitration) and reducing the government?s contribution in civil litigation.
The rest of the series is arranged accordingly: The next article will outline the nature of the backlog problem. This is necessary because a lot of the discussion on judicial reform takes place on the basis of rough all-India estimates of pendency, without appreciating the need for disaggregation.The third article in the series will talk about existing attempts to reduce pendency. On this too, information is normally available only at a very vague and general level. The fourth article will concentrate on the use and potential of technology in judicial reform. The last and fifth article will set out broad directions for reform.
?The author is a noted economist