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Let us find the same strength to fight another significant and looming battle - the breakdown of our justice delivery system.
Few would disagree that the Indian judicial process needs urgent reforms. The immediacy of this need has never been more acutely felt than now, as India grapples with the COVID-19 pandemic, which has resulted in significant socio-economic changes in the country.
In this article, we attempt to look at the issue through a wider lens as applied to across the entire ecosystem including the courts, quasi-judicial tribunals, as well as the administrative, regulatory, and investigative framework of our country.
The Ideal Judicial System
The ideal judicial system should work for the following broad goals, all within reasonable timelines:
The innocent are exonerated;
The guilty are punished;
The rights of the justifiably aggrieved are upheld; and,
Parties in breach of contracts or their civil obligations suffer appropriate consequences, including by paying compensation to aggrieved parties;.
To support these objectives:
The laws must be fair, clear, and contemporary, and their application and implementation should be reasonable, transparent, and non-discriminatory;
Punishment for non-compliance should be proportionate to the offence and have a reasonable deterrent effect;
A significant majority of people should obey the law - a premium should be placed on compliance with the law particularly those concerned with life, safety, health, environment, and economic matters; and,
Adjudication of disputes should not entail prohibitive costs for the general citizenry.
What ails the Indian judicial system?
If the foundations of a judicial system are weak, it is bound to burst at the seams. This is precisely what is happening in India. Justice is neither speedy nor do the outcomes follow a clear path.
These structural problems are further compounded on account of a general disregard for basic laws in India. Consider the oft-quoted example of compliance with traffic regulations in India.
At the same time, Indian law-makers often make laws and regulations that are onerous, cumbersome, and give regulatory and investigative agencies wide and arbitrary powers. The regulators and investigators, at times, also tend to get over-zealous in their conduct of matters, with little accountability.
Barring very few statutes, there are no defined timelines within which regulators/investigators close investigations. The result is that matters go on for years without closure or certainty. Further, the delay itself makes it difficult to mount a defence, as documents become more difficult to retain, maintain, and obtain with the passage of significant time. It is also not uncommon that the same matter is under investigation by multiple agencies, often resulting in undue harassment.
A fashionable trend, however, is to point a finger at the judiciary and blame it for this sorry situation. This is short-sighted and incorrect. All the stakeholders including the Bar, the litigants, and the government have contributed to this crisis.
Pendency in Indian Courts
A key problem is the free flow of adversarial litigation in India in which the State - comprising the Central and state governments - are significant contributors. Indeed, the current pendency of cases before Indian Courts, as per the data available on July 17, 2020 is mind-boggling. There are a total number of 3,33,17,006 cases (91,97,386 civil cases and 2,41,19,620 criminal cases), which are pending before the District and Taluka courts of India. Out of this, 77.4% of the cases are more than one year old. Even before the various High Courts, the total number of pending cases is 41,47,518 (29,55,942 civil cases and 11,91,576 criminal cases), with approximately 83.46% of the cases being more than one year old.
This does not include matters that are pending before various tribunals, for which no authentic and updated data seems available. In fact, the 272nd Report of the Law Commission titled ‘Assessment of Statutory Framework for Tribunals’ only analysed five tribunals. Even this limited analysis showed that the five tribunals, as per the data available till July 2017, had approximately 3.5 lakh pending cases.
Additionally, data on matters pending before investigative agencies and regulators, which are also likely to find their way into the judicial system, is also extremely tardy and difficult to access.
The result is an over-burdened and sub-optimal judicial system. Because of the massive pendency of criminal cases, many of which may be trivial matters or comprise technical breaches, those who should be punished for substantial violations are not handed out the punishment that is due to them in a time-bound manner, and those who are wrongly accused spend years before they are finally exonerated, if at all.
Commercial disputes and contract enforcement also become casualties other than at the interim order stage. The party with the favorable order has an upper hand, whether rightly or wrongly, and the future strategy is often to simply delay so that the advantage of the interim order is not lost, and the system caters to that.
Tribunals were expected to be a game-changer in this context to address economic and other specialized matters that were previously handled by courts. Unfortunately, they have not been able to do much better. For example, it had been hoped that with the transfer of jurisdiction over corporate mergers and amalgamations to the National Company Law Tribunals, the objective of expedited disposal of such matters would be fulfilled. In its first four years of dealing with such matters, the indicative trend is that timelines for approval of such mergers and amalgamations have increased significantly and what used to be the earlier worst-case assumptions in terms of timelines have now become best-case scenarios.
Similarly, the Advance Ruling Authority on Income tax matters is another example where outcomes on the taxability of proposed transactions can take years, making the word “advance” meaningless.
Solutions based on principles
While the high number of judicial vacancies that exist across various courts in India is a contributing factor, the usual solution of increasing bench strength, most of which has been focused primarily for courts, is inadequate. The answer also does not lie in just creating parallel fast track mechanisms for certain types of cases. No matter how laudable that objective may be, this approach assumes that some justice needs precedence over others, which, in an Indian environment, is a flawed approach.
A holistic approach is needed, with emphasis on a cure rather than treatment of symptoms. The solution has to evolve through a strategy of not just reducing existing pendency, but also taking steps to reduce the pipeline of cases so that expeditious dispensation of justice in an efficient, cost effective, technology friendly, accessible, and transparent manner becomes a reality.
The way forward
Keeping in mind the principles enunciated above, a possible way forward to address some of the shortcomings is outlined below:
A comprehensive strategy for data collection and analysis at courts, tribunals, and investigative agencies needs to be developed. This can be based on consistent and agreed parameters – such as parameters based on the nature of the matters (summons or warrant cases), duration of pendency, and stage of the matters. This can assist in the impact assessment of different initiatives.
De-criminalization of regulatory or technical offences and identifying alternatives to ‘imprisonment’ as sanctions for minor offences (which, at present, involve punishment of less than 2 years imprisonment). Apart from a review of various statutes on the lines recently done under the Companies Act, 2013, a possible strategy could be to increase the number of compoundable offences under the Code of Criminal Procedure, 1973.
A relook at the non-applicability of limitation periods in the context of socio-economic offences as an old issue may not only be difficult to defend but also, prosecute, on account of the non-availability of admissible evidence. Measures to expedite, create transparency and focus in investigations, and setting time limits for disposal of matters are much needed. Prosecution and punishment should be prompt and proportional, and aimed at key offenders. An extended list of accused should be avoided as this makes the process unwieldy and adds additional time for its completion, often, to the advantage of the main offenders.
Introduce, publicise, and promote settlement and mediation mechanisms under various statutes, including methods such as deferred prosecution arrangements.
Formulation of a National Litigation Policy, which brings about discipline, consistency, and effective decision-making in the government and insulating bona fide decision-making from subsequent sanctions on the grounds of a different opinion.
Implement measures to strengthen and expedite justice delivery and disposal of matters at tribunal level, including through timely appointments, provision of adequate infrastructure, and regular monitoring of case-load ageing at such tribunals (as well as making this information available to the general public).
Increase use of technology and digitization of the judicial process. The COVID-19 period has already tested virtual hearings and there is no reason why this cannot be institutionalized further. Since the experience has not been uniform throughout the country, both the Bar and the Bench should explore this not just as an interim, emergent measure, but also a long-term solution. This may also require the Bar to accept the advent of technology and prepare all its members to deal with the same.
Judicial pendency is a hydra-headed monster and needs to be tackled at multiple levels, instead of a single-pronged approach of merely looking at appointments. It requires coordination and cooperation between the government, the Judiciary, the Bar, and the general public. Each is a stakeholder and is also responsible for ensuring that the system works. While the government has already initiated a de-criminalization effort with the dual objective of ease of doing business and de-clogging the court dockets, in parallel, capacity building should continue coupled with a changed mind set approach to compliance.
The pandemic has already illustrated that we have the strength, resolve and resilience to stand together and fight a crisis. Let us find the same strength to fight another significant and looming battle - the breakdown of our justice delivery system. Although it may not have some of the visibly life-threating elements of the current crises, be assured that if unaddressed, the effect on the nation and its people will be drastic and adverse.
The authors are Ajay Bahl and Vijayendra Pratap Singh. Ajay Bahl is a Co-Founder and Managing Partner of AZB & Partners and Vijayendra Pratap Singh is a Senior Partner and heads the AZB & Partners non tax litigation practice in Delhi. The views expressed are personal.