Saturday, July 19, 2008

Gonsalves on Delays in the Indian legal system

The issue of delays in the Indian legal system has generated considerable discussion on this blog. (See, for instance, two separate discussions from the 2007 archives here and here).

Colin Gonsalves has a recent article in India Together which argues that while most commentators blame the Indian judiciary for this state of affairs, such a critique is largely mistaken.

Focusing on the perspective of the judiciary on this issue, Gonsalves quotes from several speeches made by former heads of the Indian judiciary, and also cites from reports of the Law Commission and the National Commission to Review the Constitution to highlight the meager financial resources available to the judiciary.

In particular, Gonsalves draws attention to this recent speech by Chief Justice Balakrishnan, from which he culls five strands of his principal argument that the judiciary gets an undue share of the blame for the massive delays that clog the Indian legal system:

A large number of cases pending in courts have the governments as a party indicating that lack of proper administration was the reason why citizens are driven to litigation. "Weak and inefficient revenue administration" has resulted in a "poor land rights recording system" which was the main reason for the institution of a large number of cases, he argued.

Secondly, financial institutions had filed a large number of cases seeking to recover money through criminal proceedings by using the Negotiable Instruments Act, thus converting the courts into "collecting agents for these financial institutions". Many of these institutions are privately owned by people engaged in giving usurious loans. As a result the trial of ordinary criminal cases is seriously hampered.

Thirdly, since insurance companies do not follow a fair procedure of acknowledging liability and disbursing amounts before the victims come to courts, there are a large number of motor accident claims pending before various tribunals.

Fourthly, there are a huge number of land acquisition cases in courts because of mal-administration in land acquisition cases where "the amounts awarded by land acquisition officer has never been reasonable or proper" and as a result, "the parties are driven to litigation in a large number of cases."

In criminal cases the chief justices identified the" tardy and inefficient" investigations resulting in a huge delay in the filing of chargesheets as one of the reasons for delay in the disposal of criminal cases." Inept policing and weak prosecutions are hugely responsible for slowing down and protracting the criminal trials in many courts."

Some of these arguments carry strains of the blame game played by the judiciary and the executive over the issue of delay in the Indian legal system for quite some time now. When one looks at the standard reforms suggested by judges for bringing down delays, they usually consist of seeking the appointment of more judges, and the allocation of greater financial resources to the judiciary. While these are certainly relevant, they do not acknowledge the far more deep-rooted causes of delay in the Indian legal system. It is rare for a judge speaking on the issue of delay to acknowledge the fundamental problems in our legal system that cause such backlogs and delays in an honest manner.

While seeking to blame the executive, judges do not admit that there are very few systems in place to monitor inefficiencies within the judiciary. Even at the Supreme Court, there is no way of ensuring that a judge who hears a case pronounces judgment upon it in timely fashion. It is, in fact, common practice for cases to be set down for ‘rehearing’ because at least one of the judges who heard the case in the first instance did not pronounce judgment upon it for several years, and has since retired. Such inefficiencies would be met with sanctions in other departments of government, but, at the Supreme Court, are tolerated as a norm. The stories one hears about the celebrated work ethic of our Supreme Court judges would be rendered more credible if they were backed by empirical evidence of the workload and disposal rates of individual judges. Such studies are common in other jurisdictions, but scholars who have sought to obtain similar data in India have complained about the stonewalls that have been instituted in their path. By commissioning such studies, the Supreme Court would simultaneously quell criticism while also showing itself to be a role model for the rest of the judiciary and other wings of government.

While Gonsalves reiterates the oft-repeated ‘solutions’ offered by the judiciary, the more specific causes enumerated above may indicate that the judiciary is beginning to look beyond the conventional reasons. This bodes well, because, as suggested by the more sophisticated analyses of delay in the Indian legal system, a much more thorough-going enquiry and approach than has previously been employed by the principal actors, will be required to effect lasting and effective reforms. It will also require getting past the old mentality of seeking to blame someone else for the problem, and working in concert towards improving the situation.

Update: A recent book which focuses on the issue of delay in the Indian legal system from multiple perspectives is: Arnab Kumar Hazra and Bibek Debroy (eds.), Judicial Reforms in India (Academic Foundation: New Delhi, 2007). The book generated this critical review in an earlier issue of India Together, where Bikram Jeet Batra focuses on the complexities involved in formulating dispassionate policy responses to the issue of delay.

2 comments:

Kannan Kasturi said...

There are several areas where I think the blame must be taken entirely by the Government. One is the litigation by the state (see http://www.indiatogether.org/2008/mar/gov-litigant.htm article where I have elaborated on this). The second is the underfunding of the judiciary. And the third is the reform of codes of criminal and civil procedure.

Vinod Kuriakose said...

E- discovery & Electronic litigation the only solution to cure the delay in the Indian Legal system.

E-discovery, Indian laws need to witness sea changes and conversions to adapt to the new age of electronic information.

Paper documents were considered as the best documentary evidence in Indian courts for centuries. Today, documents are rarely handwritten. Most documents are created using personal computers or E-mail programs. Professionals rely upon personal computers to maintain diaries and to create their written communications. Most computer users have become prolific writers because of the convenience that computers provide. More documentary evidence exists today than ever before and it exists in a variety of electronically stored formats. However, a majority of computer-created documents are never printed on paper. Many are exchanged over the Internet and are read on the computer screen. Thus, the legal document discovery process has drastically changed as it relates to computer created documents.

LAWYERS AND JUDGES are seeking production of the entire computer hard disk drives, floppy diskettes, zip disks and even cell phones and palm computer devices. These new forms of documentary evidence have broadened the potentials for legal discovery. Unfortunately, our legal system has not kept pace with computer technology and the new document discovery requirements and electronic data. Electronic documents and its discovery should change the way lawyers and the courts do business in India .

Under the current legal system an increasing quantity of information relevant to civil and criminal cases is stored electronically , rather than on traditional paper form. Despite this development, there has been no widespread study or debate as to whether the provisions of our Criminal procedure code, Civil procedure code and Evidence act adequately address the difficult issues that frequently arise when evidence is stored in electronic form.

We cannot assume that the same rules applicable to the discovery of traditional form of evidence can be applied to electronic data. I have great concern on this wrong assumption. We need to have simple but important changes in our existing laws to adapt to the new age of electronic information.

We need to change our current legal system which is complex and outdated. We need laws that promote technology based services. Our existing discipline of law need to witness sea changes and conversions with the help of technology. Litigation support products/technology should evolve rapidly over the next few years and become part of our legal system more vital than they are today. They should be designed to prepare lawyers, law firms and legal departments to try a case, which includes interviewing witnesses, discovery of documents, document review, and case preparation. Litigation support services should help lawyers to reduce their costs, increase efficiency, and improve the quality and speed of their work product so that they can focus on the practice of law.

The writer Vinod Kuriakose can be contacted at- vinodkuriakose@gmail.com