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May 06, 2014

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Evolution Of The Indian Legal System


- Anand Desai, Managing Partner [ DSK Legal ]

Anand Desai

"A look at the genesis of the present-day judicial system and a vision for the year 2020"

Current Position


  • 97 amendments to our Constitution so far, albeit many are minor;
  • The 15th Lok Sabha passes an average of 40 bills a year and meets for an average of 73 days a year as opposed to 127 working days in the 1950’s1;
  • Law is established by Central and State Acts, Rules, Regulations, Notifications, Circulars, Press Notes, Judgements etc, with bodies like RBI and SEBI notifying over a thousand notifications and press notes. It is often unclear which is the “latest”, and when a provision of statute is struck down by a Court, there is no machinery to delete that provision from the statute book;
  • Our population is growing, as is our penchant to litigate through as many appeals as possible to enforce our "rights", often ignoring our corresponding “obligations”. Consequently, despite a proliferation of tribunals, fast-track courts and appointments of judges, attempts to reduce backlog are short-lived;
  • The Hon’ble Supreme Court has 66,569 pending matters as on 31 January 20132;
  • Each Supreme Court bench hears for admission about 60 cases each Monday and Friday, varying from Constitutional matters to Inter-State disputes, revenue matters, competition law matters, commercial disputes, family disputes and land matters3. As against this, the entire US Supreme Court passes judgement on about 80 cases each year4, and a slightly higher number is heard by the UK Supreme Court each year, typically only being cases of public importance;
  • In January 2011, the Law Minister said over 30 million cases are pending in Courts in India5. About 70% involve the Government6!
  • Delhi High Court gives each case an average of 4 minutes and 55 seconds and yet it would take them over 460 years to clear the backlog with the average litigants needing to wait between 10 and 20 years to get a judgement in the case and many more years to obtain final orders including appeals7;
  • Complex processes, delays, inflation resulting in increased costs, non-availability of witnesses at trials held after many years, adds to the woes of one accessing our justice system.

No one seems to know how many "laws" we have in India and all that apply to each of us. Let’s assume there are several thousands, of which many are redundant, but remain in force. Yet, we clamour for “more laws”, and are proud to proclaim to the world that the rule of law prevails in India.

Background


Having the distinction of being one of the world's oldest civilisations, religious prescriptions in ancient India set the course for our legal system. By 400 BC, society realised the importance of statecraft and economic policy in the Arthashastra. Manusmriti spelt out laws in a comprehensive manner, followed by the Yajnavalkya Smriti, which explained the conduct a person must follow in a civilised society and the legal procedures to be followed when it is misappropriated8.

The Mughal Era had twelve ordinances of Jehangir and the Fatawa-i-A Xat, a digest of Muslim law. Judicial officers followed the Quranic interpretations of law or the Fatawas. However, customary law was widely used and the principles of equity and speedy disposal of justice were paramount. Punishments like whiplashing, confinement and death were introduced in this era9.

Until the 19th century, India saw court systems evolve, dealing with civil suits and criminal cases, as well as developing the basis for equity, justice and to some extent, secularism. The British era brought with it the common law system and law based on judicial precedents. The Mayor’s Courts established in 1726 laid the basis for the court system that we have today, while extinguishing the Mughal legal system. The First War of Independence in 1857, and the Indian High Courts Act in 1862 worked at replacing the mayor's courts and establishing Supreme Courts and High Courts in India. During that period, the Privy Council played the role of the highest court of appeal.

From Independence Till Today


Simplify and rationalise our policies and laws so they are forward looking, solution oriented, consistent across Government departments and agencies, with clear objectives, and well drafted by experts who really understand the issues and how to plug potential loopholes upfront

While some of our major statutes were drafted in the British era (Indian Penal Code, 1860; Contract Act, 1872; Negotiable Instruments Act, 1881; Transfer of Property Act, 1882; Code of Civil Procedure, 1908 etc), Independence brought with it the overriding Constitution of India, which promises the opening quotation.

In 1947, India was socially fragmented, economically poor, with very little industry and exports, a vast variety of religious and customary beliefs and a system suited to British rule. We invested in Government-owned infrastructure, education, industry (which facilitated the motive of employment, but soon became inefficient and with obsolete technologies), transport and communication, granted minority protection, licensed industry to regulate its growth and controlled movement of foreign exchange. Our laws often became tools for harassment of our people, our political classes became our rulers, our bureaucrats and intellectuals sometimes became obstacles to the promises of our Constitution.

From being an almost bankrupt nation in 199110 when liberalisation began, Indian entrepreneurship started blossoming and with great pride, Indians started taking their rightful place in world business. "India" became a buzzword for the developed world. China and India became global destinations. But while some pockets benefited, national interest took a backseat. We learnt about our "rights", but lost sight of our “obligations”. Disparity in wealth radically grew, but the reality of political funding was hidden behind the veneer of our political classes “being there for the common man”.

Changes resulted in many new laws. Many are poorly drafted and apart from repeals of matters such as fringe benefit tax and sick industrial companies laws, each day, we find new circulars, press notes, amendments being introduced by regulators of business and finance. For example, The Securities and Exchange Board of India Act, 1992 provides for the Board (SEBI) making Regulations. There are over 200 Regulations already and Circulars are issued almost every day11. The Foreign Exchange Management Act, 1999 provides for the Reserve Bank of India (RBI) issuing Notifications and Circulars, a number that is well into hundreds with several that keep getting replaced/revised12. In a practical set-up, many government agencies and ministries accept a change in policy only when notified themselves and not when another agency or ministry passes a notification or master circular.

The burgeoning internet, social media sites and email communication has added to complexities. Crime is now rarely free of technology, yet our law enforcement machinery is illequipped to tackle it and to apply the Information Technology Act, 200013 effectively. Terrorism and bomb-blasts are an accepted occurrence, apart from bank and other economic frauds.

Opaqueness was sought to be addressed by the Right to Information Act, 2005. Public pressure brought about acceptance of Public Interest Litigation (PIL), quick trials and retrials of some murder accused. While in 1980, India began to see the emergence of PILs Hussainara Khatoon14, this also started being subject to misuse. The Supreme Court coming down heavily on such misuse in Dalip Singh v. State of UP15 stating that a new creed of litigants had cropped up that was dishonest and worked at filing PILs solely for personal gain. It further went on to state that such litigants did not hesitate to misrepresent and suppress facts and only attempted to pollute the stream of justice.

Common formats for final relief and interim relief across the board (civil and criminal) would itself dramatically reduce backlog, and pointless arguments and decisions on which procedure is "correct". To the extent possible, permit e-filing, which by its nature of “fields” will require simple presentation. It will also facilitate sorting cases by common issues, and these cases can then be heard together

Suspicion and mud-slinging between essential parts of our legal system also grew. Instead of working together for the larger good, as required by our Constitution, turf wars started amongst departments and agencies. Government functionaries such as the Chief Election Commissioner and Comptroller and Auditor General gave findings that the Government got into a battle with them over. Government departments and corporations started taking divergent positions and even increasingly litigated against each other. Litigation against Government grew to such an extent that the Courts began stepping into governance16. Our press added to the pressure by aggressive reporting and “breaking news” stories.

In over six decades, we have not been able to address even the essentials for our citizens – too many of whom live in poverty, without basic food, housing or hygiene. W e have not dismantled the complex systems of access to legal recourse that we inherited. We have many confused and oftchanging laws with conflicting decisions of Government and Courts. We have a small wealthy part of our population ready to deny the Government of taxes and to fight for their “rights” upto the highest Courts they can afford, almost balanced by unjustifiable demands from tax collection agencies17. We have voluminous rambling litigation papers that are actually supposed to be concise presentations of relevant facts.

And we have Courts and Tribunals that have done a yeoman job18, but have ever increasing backlogs.

Vision 2020 – The Way Forward


We need to analyse the flaws in our system and address them. Superficial changes won't help.

Some suggestions -

  • Identify and repeal redundant laws and simplify and rationalise our policies and laws so they are forwardlooking, solutionoriented, consistent across Government departments and agencies, with clear objectives, and welldrafted by experts who really understand the issues and how to plug potential loopholes upfront.
  • Form an empowered committee(s) to resolve all disputes involving the Government.The committee can comprise a combination of private and public sector representatives.
  • Simplify procedures for access to recourse to Government and Courts. Common formats for final relief and interim relief across the board (civil and criminal) would itself dramatically reduce backlog and pointless arguments and decisions on which procedure is “correct”. To the extent possible, permit e-filing, which by its nature of “fields” will require simple presentation. It will also facilitate sorting cases by common issues and these can then be heard together.
  • Build a national database of cases and Government and Court decisions. The system can (a) bunch cases involving a similar issue, to be heard together and avoid repetitious arguments and potentially conflicting judgements, (b) throw up alerts when a binding precedent/ direction is not followed, so that this can be addressed immediately. This should reduce appeals and delays.
  • Introduce training and increase interaction at all levels of law enforcement – bureaucrats (including police, tax officers etc), lawyers, judges, citizens, and facilitate the machinery working together to achieve common objectives, rather than being at loggerheads, while maintaining the checks and balances that are so important.

I can imagine a 2020, where a citizen accesses the Internet to find what rights and obligations he has, clearly and consistently defined. Where, if deprived of his right, he can draft a simple message with the facts to the person he knows has jurisdiction to address his grievance and email the message to him. Where the injured can expect a response within a day from a robust machinery that has time and training in the field they are responsible for. In case there is a counter-party involved, where the grievance can be emailed, the recipient’s response received by the adjudicating authority and a simple decision given within hours or days. If required, a brief hearing can be given on Skype or VOIP. Investigations can be brief and effective, using latest technologies.

The decision can be communicated to the party(ies), and enforcement achieved again by a robust machinery. And in case a party outside India is involved, we have adequate protocols and policies with most parts of the world to protect our citizens’ rights.

Footnote:
1 Devika Malik and Rohit Kumar, “Indian Parliament at 60 years: facts and statistics,” IBNLive, May 14, 2012 (http://ibnlive.in.com/news/indianparliament- at-60-years-facts--statistics/257794-3.html), 2 Supreme Court of India Monthly Statement of pending cases, Supreme Court of India (http:// supremecourtofindia.nic.in/pendingstat.htm), 3 Supreme Court of India Cause Lists (http://causelists.nic.in/scnew/omon/court.html), 4 "The Justices’ Caseload", Supreme Court of United States Judges Caseloads, 5 "Moily pushes for reforms as Law Minister", Indian Express, January 6, 2011 (http://www. indianexpress.com/news/2010-moily-pushes-for-reforms-as-law-minister/734115/0), 6 "New policy to halve 2.1 crore govt cases", Times of India, June 23, 2010 (http://articles.timesofindia.indiatimes.com/2010-06-23/india/28302273_1_arbitration-case-national-litigation-policy-appeal), 7 Delhi High Court Annual Report (2007-2008) (http://delhihighcourt.nic.in/ArchiveReports.asp), 8 Patrick Olivelle, Dharmasastra – A Literary History (2005), 9 Dr. Gokulesh Sharma, "Judicial and Administrative system during Mughal empires", 10 "The Paths of Two Giants: India and China", New York Times, June 8 2011 (http:// www.nytimes.com/interactive/2011/06/08/world/asia/india-china-graphic.html), 11 Securities and Exchange Board of India Legal Framework (http://www.sebi.gov.in/sebiweb/ home/section/1/Legal-Framework), 12 Reserve Bank of India, Foreign Exchange Management Act (http://www.rbi.org.in/Scripts/FEMA.aspx) 13 This Act is already substantially been amended. 14 Hussainara Khatoon and others v. Home Secretary State of Bihar; AIR 1979 SC 1360, 15 (2010) 2 SCC 114, 16 “A Severe Indictment”, The Hindu, March 3, 2011 (http://www.thehindu. com/opinion/editorial/article1506914.ece), 17 The peak rate of interest in India was 97%. See Economic Times, November 11, 2012 (http://articles.economictimes.indiatimes. com/2012-11-11/news/35034151_1_chequeblack- money-bribe/2), 18 Examples at http:// www.legalserviceindia.com/laws/landmark_ judgments.htm

Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.

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