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There are two parts of the judicial reforms chapter titled Ending Matsyanyaya in the Union Government’s recent Economic Survey 2019 that cannot be criticised. The first is the statement that “[g]iven the potential economic and social multipliers of a well-functioning legal system, [judicial reforms] may well be the best investment India can make” and the second is the suggestion for setting up the Indian Court and Tribunal Services (ICTS).
However, the method of using a statistical case clearance ratio, under which the report in the Economic Survey concludes that “[i]n order to reach 100 percent [Case Clearance Rate], the Supreme Court would have needed only one extra judge in 2018”, is really an underestimation of the problems when it comes to the manner and speed by which courts dispose of matters.
Interestingly, it is based on a similar analysis of case clearance rates that the report suggests that increasing the sanctioned strength of the Supreme Court by 6 judges would cure all the Supreme Court’s present backlog of 60,000 cases within five years, and an increase of approximately 8152 judges in the lower courts and 361 judges in the High Court would knock-off the pendency of 3.5 crore cases in five years.
While the case clearance rate analysis is based by drawing a comparison with courts in England & Wales and the United States, there are two broad issues which it does not substantively consider. The first is that despite acknowledging “[t]he single biggest constraint to ease of doing business in India is now the ability to enforce contracts and resolve disputes”, the report does not address the manner by which contractual disputes are typically resolved in commercial courts outside of India.
The second is that the Economic Survey report’s silence on whether the manner by which cases are presently conducted in India should remain unchanged, and whether the excessive pressure on judges, tasked with an average daily cause list of 60 days, should continue to remain. Silence, presumably, would mean that no change is on the anvil for that.
The reason why this leads to a flawed analysis is evident from how commercial trials are conducted outside of India. For example, in England & Wales, one difference is that commercial trials are held on a day-to-day basis with evidence being recorded before the same judge who makes the eventual decision. That naturally helps in delivering better quality justice because the judge who delivers the judgment hears the evidence.
The second is that commercial trials are time-bound and when a case is fixed before the judge, it is that case which is conducted by the judge and no other. This effectively means that for the duration of the commercial trial, the judge is devoted to the particular case being heard and not bombarded by the average daily cause list of 60 cases. If judges in India are to be given the luxury of the same caseload, then it begs the question about how many more judges India needs to cure the legal logjam.
Would the present sanctioned strength still be able to achieve a 100% case clearance rate? Would the miniscule increase cure the backlog within 5 years? That is why drawing a statistical comparison between India’s case clearance rate with those of the United States and England & Wales, without considering the manner by which there is a substantive disposition of cases in those two countries, is inapposite.
Undoubtedly, the proposal to set up the ICTS to provide administrative support to the Indian judiciary is more than welcome, if its role is similar to the court management role played by services in other countries. However, it is likely that the creation of the ICTS and how it marries itself to the existing judicial system is likely to take time. Therefore, there is no reason why a simple study cannot be undertaken on some of the existing inefficiencies which plague the system today.
One easily identifiable inefficiency is the amount of time judges are constrained to spend on cases listed before them which are either not argued because the hearing does not start, or when it does start, are simply over argued. Even if that time is set out conservatively at one hour a day, when multiplied by the number of courts and the number of days, it adds up to a significant number of judge-hours which are currently wasted. The same time can then be better utilised for effective judicial work.
The second, and perhaps not easily identifiable cause for judicial delays, relates to hearings for issuing notice in matters which come up before the Supreme Court. In an article titled The Guillotine Must Drop!, written about five years ago, the following suggestion was made:
“Controversial as it may sound, the Court should do away with hearings for issuing notice for fresh matters or applications. Issuing notice simplicitor is in actuality only a process of informing the counter-party about a case or an application. Even if a hearing for issuing notice gives the judge the background of the case, by the time the matter comes up again a few months later the judge is unlikely to remember the facts…
…judges and counsel…. [can] focus on matters that are ripe for hearing. While there would be an increase in the volume of bi-partite hearing, if properly managed, each matter would only come up once before the Court, as opposed to the multiple times it does under the present system. In effective, judges would hear matters once, at which time the crystallized issue would be set out for their adjudication.”
Even if this approach is not adopted in its entirety, and the present system in the Supreme Court is tweaked by requiring advance notice to be given to the counter-party through the counsel who appeared in the court below, it would, without the necessity to file a caveat, allow the counter-party to be represented before the Supreme Court on the first day of hearing of any petition. Given the large number of petitions filed under Article 136 of the Constitution of India, having both parties present on the first day would allow the Supreme Court to also consider submissions by the counter-party and either dispose of the case immediately or fix it for a final hearing within a time bound schedule.
Barring urgent matters, if the first hearing for a matter was fixed approximately two weeks after the filing was done, the counter-party would have adequate time to engage an Advocate-on-Record to prepare for the first hearing. The only prejudice it would cause the counterparty is one in costs which, if the case gets dismissed, would be remediable by an order as to costs.
Inspirational as the Economic Survey report may read in its way to cure the backlog of cases within five years, judicial reforms in India cannot just be about adding to the number of existing judges. That has to be dovetailed with the substantive manner by which cases are conducted and how judicial time is spent.
The author is a Senior Advocate practising at the Supreme Court of India.