By Kirti Bhatt.
A report submitted to the government by the Consumer Education and Research Centre, Ahmedabad, suggests ways to clear the logjam of cases that clogs our judiciary
The economy, commerce and development of a country depend upon the efficient working of the judicial system. In this age of a global economy, we are dependent on inflow of capital, technology and entrepreneurship from other countries for our development. To attract these, it is imperative that national and multinational corporations view India as a business-friendly destination from all angles.
Unfortunately, this is not the case. Companies are presently wary of India as a place for adjudication of disputes as India has a poor record in enforcing contracts. In fact, the 2016 World Bank Report on “Ease of Doing Business” has ranked India very low—at 178 out of 189—on the criterion of “Ease of Enforcing Contracts”. The country’s 2015 ranking on this criterion was the same. In fact, it takes on an average 1,420 days to enforce a contract in India and the expenditure required is 40 percent of the claim amount! Commerce and industry remain badly affected as amounts running into trillions of rupees get stuck in court cases.
To address this grave problem, Consumer Education and Research Centre (CERC), Ahmedabad, a national voluntary organisation dedicated to consumer protection, submitted a report on “Ease of Enforcing Contract: Low Global Ranking of India and Need for Reforms in Court Management” to the government urging for the prime minister’s intervention.
Problem of long delays
The report highlights corrective actions that can be taken to expedite judgements which will greatly benefit the litigant and ensure he gets better service from the legal system. The simple procedural measures suggested do not require additional expenditure or legislative amendments. Of course, a few issues raised and corrective actions proposed in the report may travel beyond the comfort zone of the Bar and the Bench. That is where, hopefully, the top leadership in the government and the judiciary will take a firm stand in the larger public interest.
Normally, in a civil suit in India, it takes between five and 25 years before a litigant gets justice, considering the appeals, revisions and writ petitions which may be filed in the case. The long delays in adjudication have resulted in accumulation of more than 3.2 crore pending cases in various civil and criminal courts, out of which about 10 percent cases are more than ten years old! Amendments made in the Code of Civil Procedure and other enactments with a view to expedite adjudication of cases have failed to achieve any result.
Additionally, there are cases pending before various tribunals. At the end of December 2014, there were 61,784 cases pending before Debt Recovery Tribunals involving more than `3.76 trillion. In CESTAT (Customs, Excise and Service Tax Tribunals) and Income Tax Tribunals about 99,000 and 90,000 cases are pending respectively. Such inefficiency of the system is an impediment for conducting business in India.
Our legal system is mostly a continuation of the legal system established by the British. The court administration system is devoid of sound management practices. Though it has adopted computerization, it falls short of the standards in respect of data analysis, creation of transparency and fixation of accountability. There are no MIS (Managerial Information System) reports, no comparative analysis of old pending cases, at least in public domain.
The judicial system lacks customer orientation. If a lawyer is travelling by air and if his flight gets delayed, he would definitely like to know the cause of delay. Likewise, it is now time to equalize the rights of litigants in respect of communication of cause of delay.
Actions for Reforms
Realistic Daily Case Board: Presently, about 75 percent of cases listed on the board are adjourned and only about 25 percent of the cases are heard at length. This trend should be reversed. This will save considerable time of courts that is spent on adjournment of cases. Often, calling out of all the matters on board itself consumes about half a working day of the court, leaving much less time for actual hearing of cases. This can be definitely avoided by restricting number of matters being placed on the board/cause lists for hearing in a day.
Clarity on Adjournments: Frequent adjournments are a major cause for delay in adjudication of disputes. It should be noted which party is the initiator of the adjournment—the lawyer of the plaintiff, the lawyer of the defendant or the court itself. Summing up the time availed by all three parties on the case file will give a transparent picture about the cause of the delay to the litigant.
Adoption of Modern Technology: The adoption of modern technology and scientific management practices can help the cause of speedy disposal. For example, if available technology is used to send a short message (SMS) on the previous day to the litigant, concerned lawyers and witnesses about the hearing, the problem of likely adjournment can be thrashed out beforehand, avoiding unnecessary waste of time.
Focus on Litigant: There is a need to empower the biggest stakeholder of the system—the litigant—with information about the causes of delay in the system—on each day of adjournment, rather than generally. It is the litigant who initiates the case or seeks recourse to his legal remedies. It is he who bears the costs and consequences – litigation costs and consequences of delay.
There is a need to involve him in each and every stage of the proceedings, make him more participative and responsible. At all hearing stages, the SMS should go to the party concerned on each adjournment, showing who is the initiator of the adjournment and the next date fixed for hearing.
Management Expertise: When MBAs are engaged in every field, from hospital to traffic management, why not use management expertise in court management? Let the latest management principles be applied in court case management for speeding up the disposal of cases.
Curbing Vacations: At present, on an average the Supreme Court has 193 working days, high courts 210 days and trial courts 245 days a year. If we argue that legal professionals need vacation more than say doctors, journalists or IPS officers, it will be a travesty of justice. No one enjoys vacation except schools and courts.
In sum, for better functioning of the judicial system and better utilization of existing resources, the following three suggestions should be implemented: (a) application of management principles; (b) measures which will bring more transparency and accountability; and (c) more involvement of the biggest stakeholder of the system, i.e. the litigant, in the whole process.
As Dr VG Patel, chairman, CERC, puts it: “At a time when India is going out of the way to attract foreign investments, our international rating of ease of doing business is adversely affected by investors’ concern about quick and sound legal recourse to contractual disputes. Many reforms are feasible sans additional expenditure or legislative changes. It makes sense to begin with them.”