A slow-functioning judiciary benefits the executive: Senior Advocate Harish Narasappa on docket explosion

Recently designated Senior Advocate by the Karnataka High Court, Narasappa believes that India is closer to finding life outside Earth than it is to becoming a hub for international commercial arbitration.
Senior Advocate Harish Narasappa
Senior Advocate Harish Narasappa

Harish Narasappa is one of the few Indian lawyers to have made waves in both the corporate sector as well as the research field, having co-founded Samvad Partners and law and justice think-tank Daksh.

Recently designated Senior Advocate by the High Court of Karnataka, Narasappa believes that India is closer to finding life outside Earth than it is to becoming a hub for international commercial arbitration.

In this interview with Bar & Bench's Debayan Roy, he also shares his views on the prospect of creating a consolidated database for the arena of law and justice, the multi-fold problems that result in docket explosion, and how the executive benefits from an over-burdened judiciary.

Edited excerpts follow.

[Watch the video interview]

Debayan Roy (DR): From setting up and running a successful firm to co-founding a think-tank, to being designated a Senior Advocate, how has the journey been?

Harish Narasappa (HN): It has been a very short period of time since I have been a Senior Advocate. So, I think we should have a chat after a few years from now to see how that journey goes.

I was primarily doing corporate transactions for several years and then about 8 to 9 years ago, I also started doing a lot of litigation, mainly public interest litigation and some commercial litigation as well.

I have also been the co-founder of Daksh, because of which my interaction with the judiciary has been more from a policy perspective as to how the judiciary as an institution works, and not just as a practicing lawyer before the court.

So in a way, becoming a Senior Advocate is becoming two different things. I was doing both in terms of the work that we were doing. The practice of law itself and the insights that I gain from practicing law helps in developing the agenda of Daksh.

DR: How has the transition been? Have you severed all ties with Samvad Partners? 

HN: There is no strict requirement that you cannot practice as a Partner in a firm after you become a Senior. There is nothing in black and white; the practice in different cities has different rules. 

Samvad is now in five different cities. March 31 was officially my last day, and from April 1, I am an independent practitioner. Of course, you know, my emotional relationship with Samvad will stay forever.

Narasappa in 2015
Narasappa in 2015

DR: In a 2015 interview with Bar & Bench, you had questioned whether the pendency figures of Indian courts were accurate. Has that changed over the years?

HN: So the data is far more accurate. Now, the way the judiciary collects data on cases is more automated. Every case that is filed and the progress of the case through the courts, is all captured very well in a computerized way.

So, the reporting has become much better and it is also, to some extent, centralized. Both the Department of Justice and the Supreme Court E-committee have been very open in taking suggestions from organizations like Daksh.

The National Judicial Data Grid (NJDG) website has also improved. Some of us were part of the committee that drafted the vision document of e-courts Phase 3 upon the invitation of Justice DY Chandrachud.

Research organizations like Daksh have also taken some concrete steps to address the lack of data available in the public.

DR: Do you think that having a consolidated database of all research organizations would make for more accurate and easier to access data?

HN: In what form consolidation should happen and how it should be used, I think there needs to be some discussion around that. Building a consolidated database takes a lot of money and effort. So clearly there's no point in wasting too many resources trying to do the same thing.

So if collaboration is possible, the answer is yes, and that's what it should be. But see, the problem also is that data available in the public domain, and many aspects of the data, is not easy to collate and put into the database. It requires a lot of effort, and different people have taken different approaches to doing that.

National Informatics Centre (NIC) is running the e-courts system at the moment. For somebody else like a policy organization or research organization like Daksh to say that they will create a consolidated database, I think it's going to take some time. It's not an easy process.

"The problem with docket explosion and efforts to tackle it, is that there is no single owner of the problem."
"The problem with docket explosion and efforts to tackle it, is that there is no single owner of the problem."

DR: How do we bring all the stakeholders in the justice system to make a concerted effort to tackle the issue of docket explosion?

HN: The problem with docket explosion and efforts to tackle it, is that there is no single owner of the problem. To some extent, I have an advantage, because I not only practice in the courts, I also study the problem academically through Daksh. If I look at it as a practicing lawyer, where I may be concerned with the DNA of each case, I don't necessarily have a great view on the problems the system faces. My focus as a practitioner is to ensure that my client gets the best result in the shortest possible time. 

But sometimes, the nature of the system is that if you are benefiting from an interim order or a delay helps your client, then you sort of take that route and that's a practitioner's compulsion. So the compulsion each practitioner faces in terms of how he deals with his case in court, on a day-to-day basis, is different. Not everybody is incentivized to get a result or an outcome of each hearing.

Docket explosion is not necessarily a result of the number of cases being filed. Docket explosion is linked to how long the case goes through in the system, and whether there is an outcome on each hearing date. But there is no guaranteed outcome of any hearing. That's the most obvious thing about our legal system. 

The judges also want to hear cases, but something else comes in the way. So the uncertainty around every hearing is the name of the game. There's no certainty of hearing of any matter on any given day, and that's the problem. 

I think the executive is more than happy for the judiciary to stumble along when it comes to dealing with docket explosion
Harish Narasappa

The solution is that you need cooperation from all the stakeholders - the registry, the practitioner, the client, particularly in trials, the witnesses. Also the parties, police in criminal matters and then the judges as well.

My sympathies are with the judges also, because they own one problem, which is that they are responsible to decide the cases that come before them. They don't actually have time to think about the judicial system as a whole. That, unfortunately, has become that problem, but the judiciary is not able to deal with the problem.

I think the executive is more than happy for the judiciary to stumble along when it comes to dealing with docket explosion. This benefits the executive. A slow functioning judiciary benefits the executive, and that's the nature of the relationship between the executive and the judiciary.

So we need to find or create an institution that owns the problem and is tasked with the responsibility of implementing changes. 

DR: Of late, there has been a push to adopt alternate dispute redressal mechanisms. But if each of those cases inevitably come up in appeal before the courts of law, then are we really unclogging the justice delivery system?

HN: Yes and no. Because we do not have data as to how many cases go to arbitration, conciliation, or mediation. We do not know how many cases come up and how many of them end up in the courts. We do not have any data. Today, we do not know how many arbitrations there are. There is no number, because there is no institution that is studying or collecting data on this.

The fact that they end up in appeals is a serious problem. Even though the arbitration will finish in six months, the challenge to the arbitration then takes another five years, and it is meaningless. Sometimes, it takes years to get to appoint the arbitrator and then decide the fees.

I firmly believe that if there is a contractual right, a citizen is entitled to enforcing that right. There are times when even as a practicing lawyer, the case has been in court for 10 years. The judge says, why don't you try mediation? I think it is a failure of the legal system that after 10 years of being in court, you are being [suggested mediation]. If you are so desperate that to settle the case, then according to me, we should not entertain that kind of solution.

I think it is a failure of the legal system that after 10 years of being in court, you are being [suggested mediation]
Harish Narasappa

DR: Given the fact that the pandemic has substantially subsided, many courts are insisting that lawyers appear physically. In the context of all the work and funds that have been put into the e-courts project, and the benefits that virtual hearings bring to the table, do you think this is the right approach?

HN: There is a problem in going completely online for hearings, and it is the way files are maintained.

Even during the pandemic, when people said the judiciary went online, it didn’t happen so. The courts held hearings through video conference. It is different from having an online court. Judges had to go to court. The registry had to function, because all the papers were in physical form. So the judges were exposed to the same amount of risk. In terms of dealing with the registry, the registry was exposed to the same amount of risk.

We need to have a methodology where everybody is seeing the same piece of paper, whether online or offline, since sometimes even the files are different and then the case is adjourned. The lawyers and the judges need to see the same file, the same page number.

What happens at the end of the day? One registrar or one clerk just enters data from his book or register online. So, it is not digitally native data. The process should be such that everything is digital.

virtual hearings
virtual hearings

DR: What is your take on the expertise of Indian judges to deal with corporate law matters? Do you think judges ought to undergo training before they begin hearing such cases?

HN: See, I will not say there is a need for training. Learning is something that is constant. Professional education is something that is always welcome. We need a diverse practice representation.

We are a long way away from recognizing the changing nature of the legal profession. For example, when cases dealing with technology come to courts, you cannot expect a lawyer or a judge who has never dealt with technology to deal with it as an expert on day one.

One way to address it is by maintaining diversity in practice areas when you are choosing judges.

DR: How much of an impact do you think the Taxation Laws (Amendment) Act, 2021, by which the Centre has proposed to do away with the retrospective application of amendments to the Income Tax Act, will have on foreign investment in India?

HN: One of the essential things for carrying out activities in society is the need for certainty of law. If you must conduct some business, you want to know what the tax laws are. You do not want the surprise at every quarter and retrospective application of tax clauses strikes at the heart of the rule of law. One is supposed to carry out business without fear by complying with the law, but if the law springs surprises on citizens and businesses, that is not acceptable.

This constant chopping and changing is a problem. Many judges have said that there is no assessment of how many cases a certain amendment will spawn, and this something we have never done.

We must think of creating certainty everywhere. In certain areas, you might have to make changes to suit the situation. Uncertainty in laws increases with increasing delegated legislation. A delegated legislation provides an exception to the main statute, and this what is happening today with the Companies Act. As a practicing lawyer, I am very happy, but from a rule of law perspective, it is not good. 

DR: How far do you think India is from being a go-to destination for international commercial arbitration?

As far as we are from finding another living being outside Earth [on how close India is to becoming a hub for international commercial arbitration]
Harish Narasappa

HN: As far as we are from finding another living being outside Earth, and I am being very, very honest. We are not close. In enforcement of awards, there are many legal complexities.

We do not have an institution that can administer international arbitration. That is the first thing. Is it possible? The answer is yes, but have we created institutions that can make us a destination for international arbitration? My answer is that we are very far away. We should first solve the domestic arbitration problem.

See, the average value of the domestic arbitration is about ₹50 lakh to ₹1 crore. Most of the Seniors, including me, feel it is not worth our time to deal with it [such arbitration]. That is the heart of the problem - the arbitrator fees.

DR: Why are there so many cases with religious undertones flooding the courts today? Do we really seek justice in such cases or are we using the courts to further an agenda?

HN: It is somewhere in between. The judiciary has not really kept its hands off religion; it has intervened in religious processes. It started off from dealing with issues regarding property, which were within the frame of its operation, but then it has transgressed into commenting, for example, on essential religious practices. I find it very strange as to how the judiciary can decide what is an essential religious practice.

The cases that come before the courts is a reflection of what is happening in society.
Harish Narasappa

The cases that come before the courts is a reflection of what is happening in society. One of the advantages that foreign countries have compared to us is that judges (in those countries) have the time to analyse. Here, the judge comes and goes in the blink of an eye, and there is an analogous amount of pressure on a judge in India. The pressure is not in terms of decision-making, but in terms of numbers (of cases).

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