The problem of case pendency is as old as the hills. Exodus, 18.13 states, ?And it came to pass on the morrow, that Moses sat to judge the people: and the people stood by Moses from the morning unto the evening.? As a single judge, Moses simply could not handle the problem. Jethro?s solution was more judges and more courts. We, of course, focus on some recent and major attempts to reduce pendency.
Lok Adalats
Lok Adalats originated because the established legal and juridical system failed to provide effective, fast and inexpensive justice. In 1980, a Committee known as CILAS (Committee for Implementing Legal Aid Schemes) was set up to monitor legal aid activities. This gave birth to Lok Adalat. The first Lok Adalat was held in 1982 in Junagadh, Gujarat. Lok Adalats are supplementary forums to provide quick, easy, accessible, non-technical and sympathetic dispute resolution mechanisms and should also address pendency problems.
The Lok Adalat system should have exploded. But this hasn?t quite happened. The number of Lok Adalats organised increased from 33,810 in 2001-02 to 35,167 in 2002-03 and 43,493 in 2003-04. However, this apparent success has not been matched by the number of cases that Lok Adalats have disposed of. That figure was 14,48,472 in 2001-02, but dipped to 12,52,021 in 2002-03 and to 11,80,371 in 2003-04. The problem does not seem to be paucity of financial resources. What is also noticeable is the great inter-state variation in performance of Lok Adalats. For instance, if cases disposed of divided by number of Lok Adalats organised is an acceptable indicator of Lok Adalat productivity, among major states, the performances of Bihar, Gujarat, Haryana, Jammu & Kashmir, Jharkhand, Karnataka, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan and Uttar Pradesh have been outstanding.
Fast Track Courts
The Eleventh Finance Commission recommended and sanctioned the setting up of 1,734 Fast Track Courts (FTCs), with a special focus on cases involving under-trials, who had remained in jails for a period of more than two years. The original note prepared for the Eleventh Finance Commission is symptomatic.
The Commission approved a total grant of Rs 5.029 billion; Rs 4.3375 billion was released as grants until March 28, 2005. Of this, Rs 3.0148 billion was reported as utilised. In the first five years of their creation (2000-05), FTCs have disposed of 8,00,000 cases, compared to the 5,00,000 cases that they were expected to dispose of in a single year. FTCs have disposed of roughly half the 15,00,000 cases that have been transferred to them. Till March 31, 2005, state governments notified only 1,711 FTCs and only 1,562 were functional. The FTC scheme was supposed to end on March 31, 2005. However, since they have been at least partly effective, their term has been extended by another five years, till March 31, 2010.
Judicial response to FTCs often is that they need to be made permanent, with appointments into a regular judicial service under the disciplinary control of the High Court. This confuses the intent behind FTCs with a broader objective of improving court systems in general.
The regional variation across FTC performance is also evident. The all-India average of cases disposed per month is 15, per FTC. As originally envisaged, this was meant to be a per judge norm, not per FTC. Per FTC, Tamil Nadu has been logging 63 cases per month. There is no getting away from the fact that there are broader governance (including judicial) problems in parts of the country. The FTC scheme has only ensured funds, without ensuring accountability. It has not incentivised reforms.
Family Courts
In 1984, the Family Courts Act was passed. These courts usually hear all cases involving termination of parental rights, child custody and visitation rights, juvenile delinquency charges, neglect and abuse charges, domestic violence and divorce and related financial issues like child support, alimony or equitable distribution of property. The statute mandates the setting up of Family Courts in areas that have a population of one million or more. The Central government bears 50% of the cost of setting up a Family Court building and its annual running costs.
After having made attempts for settlement and conciliation, Family Courts can evolve their own procedures. There is no entitlement to representation by a legal practitioner, though an ?amicus curiae? provision exists. There is a provision for appeal to High Courts, except against interlocutory orders and barring instances where the order/decree is with the consent of both the parties. Family Courts also suffer from the standard malaise of pendency and arrears.
Plea bargaining
Plea bargaining is relevant for criminal cases. The accused pleads guilty (this may mean reducing the original charge or charges) or no contest in exchange for a concession from the prosecutor. In its 142nd, 154th and 177th reports, the Law Commission recommended the incorporation of provisions on plea bargaining. In addition, the Malimath Committee (2000) on the reform of the criminal justice system and the commission set up to review the working of the Constitution (2002) also supported plea bargaining. With safeguards, so that the provisions are not misused, plea bargaining has now become permissible through the insertion of Chapter XXI-A and Sections 265A-L in the Code of Criminal Procedure in 2005. Only certain crimes are permissible for plea bargaining, thereby excluding serious and habitual crimes. Plea bargaining is only possible when it has the consent of three parties?the victim, the prosecutor and the judge. It is too early to judge the success or the failure of plea bargaining in India. With differences in legal regimes, it will be incorrect to presume that it will be phenomenally successful in India, simply because it has worked in the US.
ADR mechanisms
Alternative dispute resolution (ADR) can be interpreted as a demand-side measure, through conciliation, mediation and arbitration, to reduce the demand for adjudication through the formal court system. Section 89 of the Code of Civil Procedure was amended in 2000 to make attempts at conciliation and mediation mandatory, though there are costs involved, such as those on infrastructure for such centres. In a recent case, the Supreme Court has suggested that costs of conciliation and mediation should be borne by the government, so as to make ADR more attractive. There were problems with the Arbitration Act of 1940, since it never made an arbitral award final and was only a preliminary step towards adjudication. The Arbitration and Conciliation Act of 1996 has introduced greater finality to such awards.
Where is there not greater resort to ADR? An obvious answer is the lack of credible and trained conciliators, mediators and arbitrators. But the Salem Advocates case may also prove to be a watershed, because it made a reference to mediation, conciliation and arbitration mandatory. Section 89 of the Code of Civil Procedure wasn?t that clear.
The author is a noted economist
