Reform of Judicial Administration:Civil Justice

As early as 1954, Parliament through a Resolution, recognized the need for "revision and modernization of laws, substantive and procedural with a view to realize that justice is simple, speedy, cheap, effective and substantial"
and set up the first Law Commission under the Chairmanship of Shri M.C. Setalvad.Realizing that mere revision of laws would not bring about speedy, cheap and effective justice, Parliament mandated the Commission to review the system of judicial administration in all its aspects so that timely justice is accessible to all at reasonable cost.

The Commission on its part identified its task in the folowing terms :

1. "the operation and effect of laws, substantive as well as procedural, needs to be looked at with a view to eliminating unnecessary litigation, speeding up the disposal of cases and making justice less expensive;
2. the organization of courts, both civil and criminal to be reviewed;
3. recruitment of the judiciary to be streamlined; and,
4. level of the bar and of legal education has to be enhanced."

After four years of thorough study, research and consultation, the Setalvad Commission in 1958 submitted a two volume report (nearly 2,000 pages) on reform of judicial administration which still continues to be the base document for any discussion on judicial reform. As it rightly pointed out, the five main components of judicial reform are :

1. elimination of unnecessary litigation;
2. speeding up of trial proceedings and disposal through ADR (Alternate Dispute Resolution);
3. structural reform of Courts and procedures;
4. streamlining judicial selection and appointment; and,
5. professional development of the bar, inter alia, through reform of legal education.

In other words, judicial reform is more about structural changes in the system and improvement of the quality of personnel (lawyers and judges) involved in judicial administration rather than mere reform of laws. The agenda remains the same even after sixty years when we discuss the subject of Civil Justice Reforms. The only additional item in the reform agenda, I may submit, is an ideological orientation in administration of justice arising from a social justice philosophy beautifully captured in the Preamble to the Constitution of India.

Dispute resolution, according to me, is no more the job of a neutral umpire presiding over an adversarial process of unequal parties, but a value-added, result-oriented, substantive justice delivery mechanism informed by constitutional goals, values and philosophy. Justice reform today cannot ignore the popular demand for substantive justice for which laws have been made in favour of marginalized sections including women, children, dalits, tribals and the disabled.

Barriers for Reform :

The most important barrier, which Setalvad faced in the 1950s and reformers face today, is the lack of relevant judicial data without which no scientific analysis of the problem can be done nor any verifiable reform strategy can be proposed. Merely borrowing reforms from other jurisdictions and trying to inject them from above will not serve the purpose as the system is steeped in orthodoxy and there are very many vested interests including litigants who want to keep the system that way.

Judges in India are overworked with outmoded support systems on which they preside, but with very little control over them. Seldom do they have a clear idea of their dockets which keep growing by the day with no one in command. The trial courts which deal with over 90 per cent of all litigation, with honourable exceptions, are still operating in a style which Setalvad found them 60 years ago!

The problem in judicial administration is one of numbers. A justice system which was set up to service the needs of a few million people is today involved in servicing the legal needs of over 1.2 billion people, one-sixth of the human race! In terms of numbers, the personnel involved is roughly 16,000 judges and a million lawyers. Despite all the inadequacies of the system, on an average, over 1.5 crore cases per year are disposed off by the judges, perhaps the largest turnover for any judiciary anywhere in the world. At the same time, the system receives, on an average, nearly Rs 2 crore fresh filings per year creating an overload problem not easy to tackle with the present infrastructure.

Thus perceived, the problem of arrears and delay in the judicial system is one of judicial overload for which, as the Supreme Court declared a decade ago^[1], a five fold increase in courts and judicial personnel is required. This is a task which the State Governments are disinclined to undertake. The issue is not of availability of funds alone; it is of political will on the part of Central and State Governments vis-à-vis judicial efficiency and rule of law!

Civil Justice System Reform :

The Indo-American Study :Nearly four decades after the Setalvad Commission Report on Judicial Administration, a non-official committee of experts from USA (Stephen Mayo and Hiram Chodosh) along with a former Chief Justice of India and an Additional Solicitor General of India (Justice A.M. Ahmadi and Dr. Abhishek M. Singhvi), came up with a report on Indian Civil Justice Reform^[2] in the context of economic reform of the 1990s.

The study identifies three main procedural factors contributing to arrears and delay:

1. free access for civil claimants to the courts with incentives for frivolous, party-controlled litigation processes including initiation without cause, extension without excuse and motions without merit;
2. discontinuity, repetition and fragmentation of legal processes without early or accountable judicial interventions such as court administration and case management mechanisms; and,
3. limited opportunity or incentive for consensual settlements including limited venues for ADRs.

The study says that a backlog of 25 million cases and reported delays in excess of 20 years currently undermine the effective enforcement of substantive civil and commercial rights. The study therefore concludes that the adversarial model is poorly designed to meet the needs of a rural population with widespread poverty, illiteracy and unfamiliarity with formal legal procedure.

There are some observations in the this study on the civil justice system which require critical examination from the functionaries of the system. Let me highlight a few of those observations :

1. Internal court management system lacks accountability for administration of the case load. Administrative institutions fail to monitor and track the status, substance and pace of civil litigation, thus forcing the courts to duplicate efforts and allowing controversies to languish without resolution.
2. Judicial management of the legal process is indisciplined, and thus unreasonably protracted and fragmented providing lawyers with opportunities to conduct vexatious, frivolous and dilatory litigation.
3. Available alternative and consensual means of dispute resolution and flexible remedial action are limited. With systemic disincentives against early settlement, the system drags on endlessly. Thus, full adversarial trial remains practically the only available alternative.

The study recommended a three-fold solution that included Consensual Dispute Resolution (CDR), court administration and case management. Through Court administration, judges ensure that courts and the litigants have fulfilled their functional responsibilities in a timely manner.

Through case management, parties are helped to prepare factual and legal support for their respective positions so that courts frame issues in time to commence trial. In all three strategies, judges have pro-active, administrative and supervisory roles to perform. The Report provides the procedural mechanisms to put the three reforms into operation.

Current Reform Initiatives :

For the first time in several decades, the 13^th Finance Commission, which examined the issue of judicial administration, recommended a special purpose grant to the judiciary for upgrading judicial academies, for appointing trained managers for courts at all levels, for strengthening lok adalats, for shift courts using existing infrastructure, for promoting settlement through ADRs and for modernising court infrastructure.

This has led to the Government of India initiating a National Mission for Justice Delivery and Legal Reforms aimed at reducing pendency and delays and ensuring that no case remains in the system longer than 3 years at the end of the Mission (2016). The Government (Central and State) which is the largest litigant has announced a litigation policy intended to avoid unnecessary litigation.

A Mission Directorate has been set up in the Department of Justice with the Secretary of Justice Department as the Mission Leader. An Action Plan has been prepared and the High Courts in various States are being mobilized to have their own action plans in tune with Mission objectives for which Central Government funds are being provided. To address the issue of lack of data, a nation-wide arrears grid is being mounted. The creation of the National Arrears Grid and the E-Courts project is expected to enable judicial planning and management on sure foundations, identifying bottlenecks and streamlining procedures.

The National Mission also aims to develop human resources in the justice system by prompt filling up of judicial vacancies, intensive training of personnel and introduction of experts in the system for alternate methods of settlement. A bill for increasing the age of retirement of High Court judges to 65 (presently it is 62), a bill to enhance judicial standards and accountability and a bill to set up commercial courts in every High Court are now pending in Parliament. Another bill proposing an All India Judicial Service is also on the anvil thus giving a new architecture to the justice system for the tasks ahead.

At long last, it appears that political will for judicial reform is now forthcoming. In one of the judicial conferences, the Prime Minister reportedly declared that for every step the judiciary takes to reduce delays and arrears, his Government would take two steps in support of judicial reform. The National Mission which the Government put in place in 2011 is a demonstration of the Government's determination to push reforms through.

The ball is now in the judicial court where things are moving slowly because the status and concerns of the country's 21 High Courts and 15,000 courts and tribunals under them are so diverse that no policy or strategy can have uniform application. Among other things, no programme of judicial reform can succeed unless it is followed by reforming the bar, which is perhaps the weakest link in our system of justice delivery. Also, it is high time that the Indian Advocates Act, 1961 is given a thorough revision with a view to make the bar more inclusive, quality conscious and accountable. Given the poverty and illiteracy of the bulk of the Indian people, the State has to play a more positive role to ensure access to justice for all sections of society. There is need for a public sector in the legal profession.

The Legal Services Authority Act needs changes to bring in lawyers, law schools and legal activists in the management of legal services to the poor. There is an urgent need for mandatory continuing education for lawyers and creating separate bar for mediators and arbitrators. Para-legal services should get organized under statute so that they could provide preventive legal services to villagers and assist the Gram Nyayalayas to provide cheap, expeditious justice in rural disputes. In short, the National Mission for Justice Delivery will be incomplete without addressing issues of the legal profession, which is a private monopoly where the market forces have evolved a regime inimical to equal justice for all.

Disclaimer: Views of the author are personal.