January 31, 2013

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Litigation Trends And Judicial Activisim In India: The Last Decade

- Debolina Partap, AVP & Head Legal [ Wockhrdt Group ]

debolina & hiral

"There is a stark difference of opinion between the Legislature, the Executive and the Judiciary as to what constitutes Judicial Review or Judicial Activism. The courts have to maintain a balance between thwarting injustice against citizens on the one hand and becoming a mere redressal agency on the other"

We all know the revered Fali S Nariman. He once said in countries with a written constitution, the reach of judicial power is almost unlimited it is only in the wisdom of its exercise that the balance of a written constitution is maintained. Judge Thijmen Koopmans from the Netherlands a judge proficient in civil law was once asked how it was that in its interpretative role, the great transnational court on which he sat (the European Court of Justice) had gone much further than the text of the Treaty of Rome, which established that court. The answer he gave was disarmingly frank. He said: "What the Luxembourg Court has done is a common phenomenon of all courts, national and international. There is a natural tendency for judges to write a larger role for themselves."

On the other side of the Atlantic, in the United States, another great common law country, there is a more marked separation of powers. The modern democratic world’s oldest court, the US Supreme Court, has a record of longevity (of over 200 years) but its reach is constitutionally limited: not all matters can come before it. Injustices persist because finality is given to the decisions of state and federal courts, and the writ of the Supreme Court is not all-encompassing. As one of the judges of that court once said, "The important thing we do in this place is not doing".

Mr. Fali Nariman further goes on to say, a "judicial overreach" is the direct result of legislative and executive neglect or "under-reach". That entails poor performance, not so much in the making of laws, but in their implementation. The question: "Which is supreme under our Constitution-Parliament or the Supreme Court?" is a mischievous one. The answer is "neither". It is the Constitution and the laws that are supreme. And it is the Constitution that declares that the final interpreter of the law is the Supreme Court. There is no disharmony between Parliament and the Judiciary. As that great democrat, Edmund Burke, used to say that "The fire alarm at midnight may disturb your sleep, but it keeps you from being burned at night."

Before he became Chief Justice of Australia in 1991, Gerard Brennan stressed upon the need not only for independent judges, but also the importance of an active judiciary. He said: "As the wind of political expediency now chills Parliament’s willingness to impose checks on the executive, and the executive now has a large measure of control over legislation, the courts alone retain their original function of standing between the Government and the governed."

This is truly “Judicial Activism” at its best with the courts standing between the Government and the governed. "People's faith in the judiciary led to Judicial Activism" - Justice (Retd.) Janardhan Sahay. (2011) "The dividing line between Judicial Activism and Judicial Over Reach is a thin one... The application of Judicial Review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension… such tension is natural and to a certain extent desirable" - Prime Minister Mr. Manmohan Singh. (2007)

"Judicial Activism is not an unguided missile" - Justice Anand (2001)

These statements by people of immense power bring out the stark difference of opinion between the Judiciary, the Legislature and the Executive on Judicial Review and Judicial Activism. While the interference of the Legislature and the Executive is evident in the Judiciary as also all the other functions of the government, Judicial Activism is not taken to very kindly and it in fact creates nerve wrecking moments for the Legislature and the Executive. However, the general public seems to be appreciative of this face of the Judiciary and applauds the pro-activeness of the Judiciary, something that is rare to see with any of the functions of the Government.

Judicial Activism can be traced back to the late 1970s, where cases were filed by public-spirited lawyers, journalists, social activists or academicians related to the rights of underprivileged sections of society. The relief was sought against the action or inaction of executive agencies resulting in violations of the citizen’s Fundamental Rights. The Judiciary responded by recognising the rights of these people and giving directions to the Government to redress the alleged violations. Public Interest Litigation became an instrument of a social transformation that was backed by the spirit of the Constitution.

During the 1990s, several specialised NGOs and lawyers started bringing matters of public interest to the Courts on a much regular basis. The issues raised in PIL took a more serious turn from the protection of environment to corruption-free administration, right to education, sexual harassment at the workplace and the general accountability of the Government. The response of the Judiciary during this period was bolder and more unconventional than before. The Judiciary was no longer apprehensive in ‘interfering’ with the functions of the executive agencies. Several High Courts even acted on simple letters sent by aggrieved persons, where the threat or perceived threat needed to be attended to immediately. The Courts laid down detailed guidelines to fill in legislative loopholes.

The Courts also came down heavily on government investigative agencies and civil servants for non-compliance with its orders or for failing to abide by its directions. This period gave the much needed air to our Constitution, environmental laws, public policies, directive principles, corporate and tax environment was subjected to harbinging judicial pronouncements and most importantly, the democratic spirit of the nation was kept burning.

The dividing line between Judicial Activism and Judicial Over Reach is a thin one… The application of Judicial Review to determine constitutionality of the legislation and to review the executive decision sometimes creates tension… such tension is natural and to a certain extent desirable -Prime Minister Mr. Manmohan Singh. (2007)

The Courts proved that, while they were willing to fight against injustice towards the citizens, they were also not a mere redressal agency, which would entertain frivolous lawsuits and complaints. The Courts resorted to judicial legislation when needed, did not hesitate to reach centres of government power, tried to extend the protection of Fundamental Rights and the basic structure of the Constitution of India, moved to protect the interests of the common man and protected adventurous investors to a great extent.

The Courts, in the past decades, have shown phenomenal enthusiasm in matters pertaining to the environment, FDI, corporate governance, extra commercial borrowings, and have not deterred from shunning the politicians, corporates, and government agencies during the 2G scams, terrorist attacks, landmark corporate judgements, country compliance and governance issues amongst others. Judicial Activism sounds like a dichotomy to moot people and the adage ‘Justice delayed is justice denied’ seems to live on in India.

Litigation trends and Judicial Activism are very effervescent in the Indian legal and judicial system. The Government and its various agencies are the pre-dominant litigants in courts and tribunals in the country. Hence, the National Litigation Policy 2010 was introduced. This policy aims at the near impossible and that is to transform the Government into an efficient and responsible litigant. The underlying purpose is also to reduce government litigation in courts so that valuable court time would be spent in resolving other pending cases.

This is also to achieve the goal in the National Legal Mission to average pendency time from fifteen years to three years. In accordance with the data submitted, as on 31st December, 2009, the Supreme Court had 55,791 matters, of which 34,976 accounted for admitted matters and balance 20,815 were regular matters. As on the same date, the total number of various court cases in different high courts of the states stood at 40,76,837, of which 32,50,291 were civil cases while 8,26,546 were criminal cases. The pendency position in the subordinate courts in the country is insurmountable.

There were as many as 2, 72, 01, 726 total number of cases pending in the subordinate courts throughout the country. Of these, 76, 76, 077 were civil cases whereas the number of criminal cases stood at 1, 95, 25, 649. The data also reveal that the Allahabad High Court topped the list with 9, 50, 864 total pending cases in the country. Not only that, the Allahabad High Court is also ahead of all other high courts in pending civil cases (6,68,029) and criminal cases (2,82,835). The Madras High Court stands second in total pending cases category with 4,31,390 total cases and also in terms of pending civil cases with 3,94,508 number of civil cases. The High Court of Madhya Pradesh is at second number with 62,040 criminal cases.

The High Court of Bombay is at number three with total cases of 3, 38,183 and also third highest with 2,95,714 of civil cases. In terms of pending criminal cases, Rajasthan High Court is at number three with 58,407 cases. The subordinate courts in Uttar Pradesh topped in the country with maximum number of total pending cases, i.e., 54, 04, 633 as on December 2009. The state is also number one with the highest number of civil cases (12, 99, 048) and criminal cases (41, 05, 585). Maharashtra is at number two with 41, 34, 188 total number of cases in the subordinate courts and also in terms of criminal cases numbering 31,70,895.

With 9,63,293 cases of civil nature pending in subordinate courts, Maharashtra is at number three is this category. The subordinate courts of West Bengal and Andaman Nicobar stand third in terms of total pending cases numbering 26,12,242 as well as in criminal cases category with 20,77,204 cases. Though the State of Gujarat secures second position in pending civil cases with 6,95,266 number of civil cases, the subordinate courts in Gujarat have fourth position in total pending cases category with 21,62,599 number of cases as on December 2009.

However, the Judiciary is making several attempts to rectify that and to make justice available to each and every citizen within a stipulated time frame. Fast track courts, Lok Adalats, and mobile courts are amongst the few measures already in order. Over a period of time, the trend in litigation has changed, owing to the heavy backlog in Courts. More and more companies and individuals are resorting to Alternative Dispute Resolution (ADR) methods such as negotiation, mediation and arbitration.

Arbitration has become a mandatory clause in all business agreements and a lot of companies prefer to settle the matters out of Court. Even the Courts encourage the use of ADR and suggest parties to use these mechanisms wherever possible. Even then, there is a section of the public who feels that only Courts can bring them justice. It is also a fact that the other quasi-judicial bodies are not so equipped to deal with challenging matters as the Courts.

Even the state is a party contributing to this delay. Hence, the National Litigation Policy has been devised, which lays down guidelines towards reducing the backlog. In conclusion, growing legal services, making the courts and justice system more efficient and modern or, where necessary, reducing spending can’t just be driven by words but requires action. That’s why we would welcome everyone’s support in building a system where business thrives and the law works more effectively.

Disclaimer–The views are of the authors. They do not represent that of Wockhardt Group.

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