Bibek Debroy on courts’ productivity and case flow management

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Published: November 16, 2017 4:33:58 AM

Research by Vidhi Centre for legal Policy shows framing of case flow management rules is absent for both high courts and subordinate courts in Delhi, Maharashtra, Goa, Manipur, Meghalaya, Odisha and UP .

Bibek Debroy, court productivity, case flow management, legal policy, backlog issues, intensive methodsEven when high courts have passed CFM rules, research shows these are de jure, not de facto.

Most people are aware of the work done by Vidhi Centre for Legal Policy. Some of this is on reducing delays. To appreciate the problem, some figures: 25 million cases pending in subordinate courts, more than 6 million for over five years. Sure, there are backlog issues in high courts and Supreme Court, too, but let’s focus on subordinate courts. Economists speak, or used to speak, of extensive and intensive methods of growth. Under the former, growth results from increases in inputs (land, labour, capital). Under the latter, growth results from increasing productivity of existing inputs. Discussions on backlog resolution are prone to harping on the extensive, rather than the intensive. Increase number of courts, increase number of judges. But there is an intensive technique too, enhancing productivity of existing court infrastructure and human resources. Before that’s done and the situation improves perceptibly, I don’t think there will be general support for more public resources required for the extensive mode. Using different words, productivity enhancement is about handling cases more efficiently, that is, case flow management (CFM). Here is Supreme Court (2005) in a famous case (Salem Advocates Bar Association versus Union of India), the issue being amendments to Code of Civil Procedure. “For this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India (Justice M. Jagannadha Rao) was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Disputes Resolution.” To quote more, “Report 3 (by the Committee) contains a conceptual appraisal of case management. It also contains the model rules of case management.

The case management policy can yield remarkable results in achieving more disposal of the cases. Its mandate is for the Judge or an officer of the court to set a time-table and monitor a case from its initiation to its disposal. The Committee on survey of the progress made in other countries has come to a conclusion that the case management system has yielded exceedingly good results. Model Case Flow Management Rules have been separately dealt with for trial courts and first appellate subordinate courts and for High Courts. These draft Rules extensively deal with the various stages of the litigation. The High Courts can examine these Rules, discuss the matter and consider the question of adopting or making case law management and model rules with or without modification, so that a step forward is taken to provide to the litigating public a fair, speedy and inexpensive justice.” One needn’t get into details of model CFM rules. However, this is what they would have led to.

“Based on the nature of dispute, the quantum of evidence to be recorded and the time likely to be taken for the completion of suit, the suits shall be channeled into different tracks. Track I may include suits for maintenance, divorce and child custody and visitation rights, grant of letters of administration and succession certificate and simple suits for rent or for eviction (upon notice under Section 106 of Transfer of Property Act). Track 2 may consist of money suits and suits based solely on negotiable instruments. Track 3 may include suits concerning partition and like property disputes, trademarks, copyrights and other intellectual property matters. Track 4 may relate to other matters. All efforts shall be taken to complete the suits in track 1 within a period of 9 months, track 2 within 12 months and suits in track 3 and 4 within 24 months.” Though these were draft rules and adoption decision was left to high courts, this is eminently sensible. Evidently, not all high courts thought so. There would have to be separate CFM rules for high courts, civil cases in subordinate courts and criminal cases in subordinate courts. Vidhi’s collation shows all three are missing in Delhi, Maharashtra, Goa, Manipur, Meghalaya, Odisha and UP. There are several states for which only civil CFM rules have been passed for subordinate courts.

There is more. Under auspices of Supreme Court, there is also a 2012 report (“purely advisory in nature”) by Justice Khanwilkar, prescribing “national common standards” on CFM that can/should be applied across all high courts. But since this is “purely advisory”, nothing may happen. Hence, should CFM get statutory backing? That question is slightly misleading, since some elements of CFM are mandatory, after amendments to CPC and CrPC. What one means is this. Should CFM get across the board statutory backing? Most people will say yes, but one shouldn’t get carried away. A statute is as good as its implementation. When high courts have passed CFM rules, Vidhi’s research (in eight states) shows these are de jure, not de facto. “A key takeaway from our study is that courts are unable or unwilling to adhere to time limits recommended by the CFM Rules, despite the fact that the Rules passed by the High Courts are binding on the subordinate courts. This situation could be because of two reasons: one, courts have little knowledge or will in implementing CFM to better administer their courts and two, the time limits recommended by the Law Commission were adopted without much contextualisation by the states.” I suspect it is the first, not the second reason.

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