National Conference on Legal And Judicial Reforms - The Bird's Eye View on Balance Sheet and Projections
September 6-7, 2002, New Delhi

Keynote Addrdess by Mr Anil Divan

Law Reform is a vast and complex topic. It embraces legislative reforms, reforms of the judicial system and most importantly reforming the mindsets of the Judge, the Lawyer and the Legislator. Financial constraints are a major fetter on wide ranging reforms. There is a plethora of unimplemented recommendations and reports gathering dust. Why? Because for the executive and the politician it is a low priority enterprise with no vote catching potential.

All over the world and among the young, there is spirit of questioning. Every institution is under scrutiny. The citizen demands, particularly in a democratic country like ours, that the legal and judicial system must reform and justify its existence by serving the community. The Godlike mystique of the judiciary wearing impressive judicial robes is fast dissolving. Our legal and judicial system has to earn the respect of the community every year and every day or else suffer by comparison with the systems of other countries.

The object and focus of legal and judicial reforms must be the delivery of speedy and quick justice, high quality justice and affordable justice.

In many first world countries there are vast budgets for legal aid to make access to justice meaningful. Something which is impossible in the near future, in our country. In India, many wrongs go unnoticed and many citizens have to suffer violation of their rights and entitlements because of the impossibility of having access to justice.

The Current Situation

The recent 85th Report of the Parliamentary Standing Committee on Home Affairs on Legal Delays has come out with alarming figures. It estimates that 24 million cases are pending in different courts all over the country. Some of them are pending since 1950. The judge-population ratio is 10.5 Judges for every 10 lakh citizens. In contrast there are 107 Judges in the USA for 10 lakh citizens. In India only 0.2 percent of the GNP is spent on the judiciary. The High Courts have become the biggest bottle-necks in the judicial hierarchy with arrears of 8 lakhs in Allahabad, 6.5 lakhs in Madras, 3.08 lacs in Kerala and 2.4 lakhs in Bombay.

Justice V.S. Malimath investigating the Criminal Justice System as the Chairman of a Committee is reported to have said "the maladies of the criminal justice system were inordinate delays in disposal of cases and poor rate of conviction. As a result, crimes had become a profitable business.... The people do not trust the system any more".

The situation is reminiscent of the travails of a litigant in the Chancery Court so vividly described by Charles Dickens in "Bleak House". He wrote :

"this is the Court of Chancery... which gives to monied might, the means abundantly of wearing out the right; which exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give - - who does not often given - - the warning 'SUFFER ANY WRONG THAT CAN BE DONE YOU RATHER THAN COME HERE !".

It is said that the novel's depiction of Chancery Court abuses stirred even the most complacent interests and in no small part due to the book's influence the Chancery Court was finally overhauled by the Judicature Act of 1873.

The Civil Justice System and Reforms

First the positive features. The constitutional courts viz. the Supreme Court and the High Courts have established an enviable reputation in Public Interest Litigation and Human Rights Jurisprudence. The apathy, negligence and lack of governance by the executive arm led to judicial activism in areas like controlling pollution in Delhi and other metros, saving wanton destruction of forests all over India and particularly in the North East. Again the Supreme Court has struck powerful blows for secularism by refusing to yield to the Central Government's pleas to allow worship on lands embroiled in the Ayodhya dispute. So the citizen is happy and impressed by the Court's work in the above areas and admires the Court for its contribution in public law disputes.

Now for the negative side. A citizen or a party who is directly involved in litigation curses the system and has very little admiration for the courts high or low. He perceives terrible delays, high costs of legal services, dubious levels of integrity in the judiciary and at the end of the tunnel uncertainly and unpredictability of the final decision. How would if he can in the words of Carles Dickens "suffer any wrong rather than come here".

The citizen who reads the morning news is impressed by the Courts but the honest citizen who has to litigate curses the legal and judicial system. It is the old saying that "Distance (from the Courts) lends enchantment but familiarity breeds contempt".

Recent Efforts

The recent amendments to the Code of Civil Procedure are attempts to curtail appeals and to promote mediation and settlement.

In the recent case of All India Judge's Association vs Union of India (2002) 4 SCC 247, the Supreme Court has given various directions which if implemented would have the effect of considerably reducing delays. The Court has directed that all vacancies in existing posts in the subordinate courts should be filled up if possible by March 31, 2003 in all the States. Further the Court has given a normative ratio of 50 judges per 10 lakhs of population being achieved in a phased manner and to be implemented within 5 years. This direction, if implemented, would be a quantum jump from the current ratio of 10.5 judges per 10 lakhs of population, almost a five fold increase. It would dramatically decrease pending cases.

A significant observation in the judgement is that "an independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed justice would be available to the people thereby undermining the basic structure". This observation has the potential of compelling the State to conform to the directions and marshal the State's resources to appoint more Judges.

The court has also directed that fresh law graduate even without 3 years standing may be inducted in judicial service but they should be imparted training of not less than one year. However one direction of the Court is questionable. The first National Judicial Pay Commission headed by former Justice Shetty recommended increase in pay scales and other emoluments of members of the subordinate judiciary. None of the State Governments accepted the pay scales suggested in toto but some States were agreeable provided the Central Government accepted the recommendation of the Commission to bear 50% of the extra financial burden. The Central Government refused to do so before the Court and the Court directed that the States must bear the extra burden and if necessary increase the court fee or approach the Finance Commission. Increase of advalorem court fees on suits or other proceedings would be highly regressive and the direction runs counter to the principle that it is the burden and obligation of the community to provide justice to its citizens. Reasonable increase in fixed court fees may be acceptable. In some States ad valorem fees are without any ceiling or cap with the result that court fees may run into lakhs of rupees. Again a similar court fee is payable for every appeal and the burden of Court Fees becomes so large as to amount to a clear denial of justice.

A few suggestions

I would like to share with you a few which can substantially improve the working of the legal system without any radical reform.

First, categorize disputes and litigations where individual citizens are involved but which do not relate to business or industry. These litigations may be called non-business disputes, eg. inheritance disputes, family disputes, landlord and tenant disputes, property disputes unrelated to business. Separate classification may be made of such disputes and they should be given priority and fast track treatment. Every Court must allot time and personnel to such disputes.

Secondly, the State, local and other authorities are by and large the largest litigators. Each Court whether in the District or at the High Court or Supreme Court level should have a panel appointed by the State to sift pending matters and remove the chaff from the grain. Small matters or matters covered by reported decisions may be conceded or withdrawn. It would take away an enormous load from the Court's calendar. An experiment or model can be evolved in one Court in the State starting from the High Court and a panel of retired Judges assisted by young lawyers and retired administrators should be requested to do a one time public service in this regard by serving on such panels.

Third, on any day in Court in India one finds blatantly incorrect and misleading statements made in pleadings, affidavits, etc. by State and public authorities Prosecution for perjury is a long drawn out process about which no court is enthusiastic. Such prosecutions consume State's resources of judicial time and the time of State counsel. The Judges should however be empowered to impose punitive fines or costs in such cases where the deponent is representing the State or public authorities. A large number of these statements are routinely made on behalf of the State of public authorities with impunity. If as a matter of policy all the judges in a Court take strong exception to false and misleading statements and impose punitive fines or costs on the erring deponent enormous time will be saved and justice can be done swiftly. Today routinely courts pass strictures but without any consequence against the State and public authorities which is no consolation to the private citizen.

What can Industry and Business contribute to the Reform of the justice delivery system.

In India, there is very little searching and well researched criticism of the functioning of the Courts. Practicing lawyers are unlikely to be critical of the judiciary before whom they are daily practicing. Business and Industry would not like to be identified in a manner which is likely to alienate the judiciary. But following the American example, business houses and industry could establish independent foundations and Trusts exclusively devoted to study and constructively criticize the functioning of the justice delivery system. Independent research and academic foundations distanced from both business houses and the practicing profession will be free from their handicaps and would make a valuable contribution in the long run in bringing about law reform.

Criminal Justice System

The central question in the criminal justice system in India is how to bring the guilty to book. With the rate of conviction of 6-7% the nation has become a paradise for criminals. Should we continue with the old system or does the system require a radical transformation ?

What is needed is categorizing and segregating cases involving minor or trivial offences. The law reformer must scrutinize all the statues, the Penal Code and segregate and categorize these offences which can be dealt with either by awarding monetary compensation to the victim/complainant or can be disposed of by fines. These cases can be disposed of by requisitioning the services of senior lawyers on an ad hoc basis.

There is yet no resolution/conviction in the notorious BMW case where several persons including a police officer was run over and died by an intoxicated Driver. There is no outcome in the case of the Upahar Fire tragedy. Even the Urea Scam case where thousands of dollars were paid for imports (which never materialized) and without a letter of credit is still winding its way through the Courts.

In the Stock Exchange Scams the public have lost over Rs. 100,000 crores and yet no one has been punished. In the United States the 'junk-bond operators' and 'inside traders' have been tried and swiftly off to jail. Many members of President Nixon's administration were jailed for perjury and suppressing evidence. The country has embarked on economic liberalization and privatization and it is imperative to have a strong regulator and dedicated prosecutors. Otherwise a free market system will come to grief.

There is a strong case of major economic frauds and offences being separately categorized and swiftly dealt with by sepcialized investigators and dedicated Courts. Today there is urgent need of fast track disposal of cases involving major economic offences and major corruption cases involving the powerful politician and the high-level bureaucrat. Corruption offences involving powerful politician and high level bureaucrats require to be investigated and tried in a wholly different manner. Under the French system the whole investigation is assigned to an "investigating judge" and the Police investigation takes place under his authority and guidance. The trial takes place before another judge. Again in economic fraud and corruption cases, the law should be altered and statements made to the police should be admitted in evidence. There would be no difficulty in recording them accurately with sophisticated audios and videos available. In offences under the Income Tax Act, Customs & Excise laws statements made to the investigator are admissible in prosecutions under those statues. This requires some radical changes in the law which probably will not be supported by the political class.

Again plea bargaining for smaller offences will clean up the "Augean stables" of pendencies in diverse courts all over India. A task force of retired administrators and Judges of high repute should be assembled to get rid of thousands of pending cases which can be plea bargained.

Finally it is best to recall the words of two great Judges. Lord Devlin said many years ago that :

"if our business methods were as antiquated as our legal methods we should be a bankrupt country" and Chief Justice Warren Burger of the United States talking of the US Courts said :

"In the super market age we are trying to operate the courts with cracker barrel corner grocery methods and equipment vintage 1900"

It is now up to all of us citizens, businessmen, lawyers and members of the judiciary to take up the challenge and put in place a vigorous affordable and high quality justice delivery system.