Approach towards backlog of litigation and arbitration cases in India
Mayur Shetty (Associate Partner, Rajani Associates)
A lot has already been said, written and discussed, about the enormous backlog pending litigation in India. However the endeavor here is to focus more on solution rather than harping too much on the problem itself. Any reference to the problems and its negative consequences is only to highlight the urgency and necessity of the suggested solutions.
Any article on backlog of litigation cannot be complete without quoting the mind boggling digits of pending cases in the Indian Judiciary. So here are the numbers. There are 2,71,76,029 cases pending in the subordinate courts in the period between July 1, 2015 and June 30, 2016 for civil and criminal cases. The pending appeals in the Supreme Court as on January 1, 2016 is 95669. As in February 2016, there are 48,418 civil cases and 11,050 criminal cases pending in the Supreme Court.
Over the years there have been various suggestions on how to tackle this issue and expedite the legal proceedings in India. There have been suggestions to increase the number of judges, formation of alternate tribunals, alternate dispute resolutions systems, formation of commercial courts etc. All of the aforesaid suggestions are equally meritorious. In this article we have made a humble attempt to endeavor to understand and contemplate on genesis of the whole issue and share our approach to overcome the issue of backlog of litigation in India.
We suggest P-E-P for Indian Judiciary system. P-E-P is an acronym coined by us wherein the first “P” stands for Political Will; “E” stands for Expenditure and the last “P” stands for Planning.
The dire consequences of prolong judicial process, as in India, are too vast to be enlisted here. However, the Central and the State Governments ought to understand and realise these dire consequences of prolonged judicial process in its entirety. The consequences range from economic issues like “prejudicing foreign investors from investing in the country” to social issues like “causing unnecessary prolonged arrest and detention of probable law abiding citizen of the country”. All the consequences have further consequences leading to vicious circle, against which any developing nation ought to guard itself.
Any Legislature having the political will, has to wholly fathom the concerns arising due to prolonged litigation, understand the socio-economic benefits of expeditious litigation in the Country and thereafter ought to make concrete efforts to address the concerns and achieve the desired goal.
In the last couple of years the political will for improving the judicial process has been quite visible and is highly appreciable. There have been notable amendments of prevailing laws as well as new enactments of laws and regulations. Amendments to the Arbitration and Conciliation Act 1996; enactment of Commercial Courts Act, 2015; enactment of Insolvency and Bankruptcy Code 2016; enactment of Real Estate (Regulation & Development) Act, 2016 and formation of National Company Law Tribunal (“NCLT”), National Company Appellate Law Tribunal (“NCLAT”) and its Rules are a few of the prominent legislative actions and measures taken in last couple of years indicating that desire within the Legislature to expedite and strengthen the judicial proceedings in India.
However, in our view to appropriately deal with the chronic issue of the huge backlog of cases and long pending cases in India, the political will has to necessarily be followed by following two points namely viz. expenditure and planning.
As per the Union Budget 2017-18, only 0.01% of the expenditure of the GDP is allocated for the judiciary. If there is a genuine will to improve the legal system in India then the Central and State governments ought to considerably increase the expenditure on the judiciary system while framing the Budget. Anyone who understands the dire consequences of a weak or protracted judiciary system in a country can understand that the socio- economic benefits, of having a strong and expeditious judiciary mechanism, shall by far out-weigh the expenditure that is required to set-up such a system.
Increment in judicial expenditure would aid solution to lot of ailments suffered by the Indian Judicial system. The increased expenditure can help judges have better infrastructure, more number of competent and qualified lawyers would be willing to take up the judicial posts, it will help establish more number of well-equipped courts and tribunals, digitalization of filing system so on and so forth.
The question of proper utilization of the expenditure allocated to judiciary takes us to the next point, i.e., Planning.
Ever since our independence in 1947 the country has faced severely difficult and painful obstacles in its path to sustenance and development. However, the country has successfully dealt with many such obstacles through planning. The five year plans implemented under the auspice of the central government has helped the country overcome issues like draught, scarcity of food and essential commodities and helped achieve self-sustenance and industrial development in the country.
According to 127th report of Law Commission, 1988 the “Administration of justice” has not been regarded as development and therefore not provided through the five year or the annual plans. Justice is thus a non-planned expenditure. It is the need of the hour to recognize a strong and expeditious judicial process and it’s far reaching benefits and considering the same administration of justice ought to be given status of developmental planning.
India does not have dearth of intellectuals and legal luminaries who can assist and guide the nation in putting up an efficient and expeditious legal system at every level. These intellectuals can be assigned appropriate roles under the National Planning Process of the government.
Once “administration of justice” is rightfully given its status as development activity, and provided five year plans coupled with allotment of requisite expenditure ; we strongly believe that it is just a matter of time that we shall overcome not only the issue of huge backlog of pending litigation but also establish a strong and efficacious judicial system.
Our country has no dearth of laws to protect its citizen’s rights under the constitution, contract and equity. There are also number of laws to guard our ecology, social structure and bureaucracy. However the bane has been with the implementation and execution of these laws at macro and micro level. These practical problems of implementation and execution of laws, rules and regulations can only be tackled by having pro-efficient judicial system. In our humble view, P-E-P will address all these issues.
* This article has been co-authored by Ms.Pooja Vasandani (Associate, Rajani Associates)