Legal Reforms

Laws

          At the time of independence there were about 350 laws.  Most of these were colonial era laws made by the colonial rulers to manage the  the colonial subjects of India.  Instead of wiping most of these clean we have added to their complexity through numerous amendments.  More worryingly we have added to these ancient laws, new laws at a trend rate that was faster than the trend rate of growth of the population till 1969 and faster than the trend rate of growth of per capita GDP (average income of population) till 1975. In 2001 there were 1050 different laws. The number of laws per judge and the number of laws per police officer was far greater in 1979 than it was at independence and still remains much higher.  Yet political parties, the intelligentsia and the general public thinks nothing of proposing a new law to solve every unsolved problem.  We need to do the opposite: Drastically root out all colonial era laws, weed out numerous outdated and obstructionist laws and integrate and simplify the rest.


Legal System

        The legal and judicial system has been unable to keep pace with the needs of a growing population and the increasing complexities of the commercial sector.  The net result has been a surfeit of litigation and a build up of a huge number of pending cases.  One estimate put the number of pending cases at 28 million, and  growing at the rate of 8 per cent a year, implying an additional annual increase of more than 2 million pending cases a year.  Among the reasons for the increase in arrears are inadequacy in the number of judges, delay in filling up vacancies and faulty appointment procedures and appointment of incompetent judges.  India has one of the lowest numbers of judges per person.  Vacancies are not only high but the shortfall in appointment has been rising. These vacancies must be filled urgently.  Court timings must also be increased and enforced strictly A long-term solution to this problem requires a fundamental change in the method for appointing judges.  An independent judicial commission can appoint judges, monitor their performance and ensure their integrity.

Govt. as Litigant

         The government itself is responsible for a substantial part of the pending cases, as these suffer the maximum amount of delay.  A National Law School (1993) study estimated that the government was plaintiff, defendant, appellant or respondent to appeals in 60 per cent of all the suits filed.  Most government cases were in the five areas of taxation, credit, rent control, urban land ceiling and labour relations.  In these cases, either the government counsel does not appear or the summoned official is absent.  Government advocates are known for asking for long adjournments on grounds of “seeking instructions” from the minister or the department.  Very often, court orders are blatantly flouted and nothing happens till the court finds the time to pull up the concerned official.  The government also makes unnecessary appeals against decisions not in its favour.  Repeal of the urban land ceiling act and the rent control act, reform of labour legislation, rationalisation & simplification of tax laws and computerisation of land records could considerably improve the situation.

Civil Procedure Code

            The Indian Civil Procedure Code first enacted in 1859 and after many amendments, finalised in 1908, provides innumerable opportunities to lawyers to delay proceedings.  Lawyers can file applications for interrogatories, appointment of a Commissioner for local inspection, a temporary injunction and arrest or attachment of movable assets before judgement.  Each application needs to be heard and disposed of (may take up to a year), before things can proceed any further.  The first appeal can take as much as 3 years and the second up to 7 or 8 years if admitted to the High Court.  As applications for interim relief, take unnecessary time lawyers have started asking for it as a delaying tactic.  Lawyers getting paid per appearance have an incentive to prolong the case through long-winded arguments.  When the Supreme Court initiated steps to curb the time taken for oral arguments, lawyers immediately went on strike.

Adjurnments

       The practice of getting innumerable adjournments is a major problem.  Frequent & lengthy adjournments imply that judges deal with cases in a piecemeal fashion, and often over several years.  Judgements cannot be delivered expeditiously since time is needed to put the entire case together.   As a result Judges also become more willing to grant further adjournments, to avoid having to go back to the history of the case, hoping that the next hearing will come up in front of some other bench.  Order 17 Rules 1 and 2 of the Code of Civil Procedure (1908) provides for unnecessary adjournments by requiring that the hearing of a suit once begun shall continue daily till all the witnesses have been heard, unless the court finds the adjournment beyond the next working day necessary.  Something that was meant to be an exception, has become the rule!

Procedures

       Procedural bottlenecks like serving summons, adjournments and verbal arguments should be streamlined.  The draft of a new Civil Procedure Code (1996) attempted to do this.  Clauses on perjury should also be invoked, they have never been invoked since 1947.   Courts must be computerised so that   cases can be classified under different heads, such as labour, service, rent control, land, and assigned to judges dealing in similar, or related, areas.  This system of grouping will expedite the disposal of cases as judges hearing disputes in similar areas will enhance their expertise in these areas. This has been successfully implemented in the Supreme Court and must be urgently extended to the High courts and the lower courts and tribunals.

Modern Management

     Along with computerisation, other technical aids like photocopying machines should be introduced, allowing parties to get copies of judgements on the same day that they are passed.  Digital filming should be used to preserve records to save storage space.

    The functioning of sectional tribunals and quasi-judicial authorities needs thorough review.  There is a need for rationalisation or elimination of those tribunals, which have become even more dilatory than the normal courts (e.g. rent control tribunals).  Strengthen alternative dispute resolution mechanisms through modification of acts like CPC, Limitation act and Indian Evidence act.  Consider ‘London approach’ to financial & credit dispute settlement.  Unify subordinate legislation on sectoral basis.

Undertrails

 

    The number of people held before they have even been charged and the number of people and time for which they have been held in jail without being convicted is a fundamental violation of the principle “Innocent before proved quilty.”  Sadly those who are the most clearly guilty are the best organised to get bail even before being arrested. It is the poor and those who have got into trouble through an accident or mistake, who suffer the most.  Those who have served a quarter of the maximum sentence applicable for the crime they have committed must be set free immediately.

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