The guillotine must drop!

The existence of a civil justice system enabling individuals and corporations effectively to enforce their legal rights underpins all investment, commercial and domestic transactions as well as the enjoyment of basic rights and freedoms.  If the system becomes inaccessible to segments of society, whether because of expense, delay, incomprehensibility or otherwise, they are deprived of access to justice.[1]

Introduction 

Descending down a dozen years to 2002, the Hong Kong Chief Justice’s Working Party had published a consultation paper identifying seven areas considered as the challenges facing the administration of civil justice. The report identified litigation as being too expensive, too slow, too uncertain in terms of time and costs, and too adversarial.  The report also identified that the lack of equality between litigants who were wealthy and those who were not, and found the system to be incomprehensible to many litigants and also too fragmented with no one having any clear overall responsibility for its administration.[2]  A few years prior to that, Lord Woolf’s 1996 Report on “Access to Justice” in England and Wales had also identified similar problems being faced in England and noted, amongst other things, that

“pleadings which are supposed to identify the issues between the parties, promoting fairness and procedural efficiency, instead often raise superfluous questions, obscure the issues and complicate the case, delaying or preventing settlement and increasing costs” and “witness statements which are supposed to encourage early settlement, prevent surprise and save costs are often prepared by teams of lawyers as an adversarial weapon at great expense and producing a “massaged” case rather than reliable evidence to be placed before the court.”[3] 

Singapore, in the early 1990s, also had similar issues: cases took six-seven years to reach the courts for a hearing, and for a country with a population of around 3 million there were around 10,000 inactive cases in the Court’s docket, some of which were more than 10 years old.[4]

The woes that India’s civil justice system faces are comparable.  Litigation is slow, expensive and overly procedural, with pleadings and witness statements reflecting a kitchen sink, scarcely identifying the main issue for adjudication.  Two decades later while Hong Kong, England and Singapore have significantly reduced their backlogs, India’s civil justice system continues to be burgeoned with its woes.

Our Stuttering Response to the Change 

Primarily, there were three steps adopted by Hong Kong, England and Singapore to make the dispensation of civil justice more efficient:

(1)   Management of cases before they were set out for an oral hearing before a judge;

(2)   Managing the time each case would take at the oral hearing; and

(3)   Encouraging the resolution of disputes through the alternatives of arbitration and mediation.

Interestingly, around the same time when these countries started to bring about change, so did India.

For one, India amended the Code of Civil Procedure, 1908 (the “CPC”) in 2002 to streamline litigation procedure.  The 2002 amendments to the CPC allowed leading of evidence-in-chief by way of affidavits, imposed strict timelines for the filing of pleadings and shifted the recording of the cross-examination before a local commissioner, who had the same powers of the Court. However, things did not take off, partly because the players in the system we were unwilling to abide by the drop of the guillotine.  For example, in Salem Bar Association, Tamil Nadu v. Union of India, [(2005) 6 SCC 344], the Supreme Court interpreted rules of procedures as being “handsmaid of justice and not its mistress”, and held that even the outer maximum time limit of 90 days for filing a written statement was directory and not mandatory.

Second, the Supreme Court successfully experimented limiting oral hearings when in 2006 a 9 judge constitutional bench heard I.R. Coelho (dead) by LRs v. State of Tamil Nadu [(2007) 2 SCC 1] and set out a 5 day time limit, running from Monday to Friday, for oral arguments.  This practice was unheard of at that time and despite multiple senior counsel murmuring that the time set out was inadequate, the Court did not relent and applied the guillotine.  However, it did not follow the practice in other cases.  For example, when the Supreme Court heard Vodafone International Holdings BV v. Union of India [(2012) 6 SCC 613], the matter went on for approximately 26 hearings days, spread over 3 months, during which hearing days no other matter could be taken up.  The number of issues to be decided in Coelho were more than those in Vodafone, and there is no reason why Vodafone could not have been similarly completed within a fixed and shorter time-period.   

Third, and contrary to what skeptics assert, the Indian Arbitration Act 1996, which imbibed the UNCITRAL Model Law was a very far reaching and brilliant piece of legislation meant to encourage the resolution of commercial disputes through arbitration.  Unlike many other countries, the Indian legislature envisaged that domestic arbitration would be put into the same framework as an international arbitration, where primacy would be given to party autonomy, restricted court interference and finality.  Regrettably, as we all know, the legislative mandate did not work.  Fali Nariman in the early 2000s called arbitration as the first step to litigation, and then, in a poignant lecture in 2011, aptly titled his paper, “Ten Steps to Salvage Arbitration in India.”[5]  Over the years, arbitration in India not only became an expensive and slow process, but with domestic awards being challenged in a manner akin to a first appeal, arbitration lost its sheen as a speedy dispute resolution mechanism.

Five Steps to make Litigating in Court More Effective and Efficient 

No magic wand can make arrears disappear or reduce fresh filings in Court.  There also cannot be one, because access to justice is a pillar of democracy, and justice must be available to all those who need to reach out for it, as well as those who have waited patiently for it.

To cut down delays the present system needs to be made more efficient and effective. Today, most judges toil every evening with the 60 odd cases they have listed before them the following day, only to have 5 or 6 effectively heard.  Many counsel have daily cause lists of 15-20 cases, not knowing which one of those cases would eventually be heard.  On any given day judges end up spending a significant part of the court’s daily working hours dealing with cases which are eventually going to be adjourned, and lawyers keep waiting in the corridors for cases which either do not reach or get adjourned.  So even though lots of cases are listed, they are in effect “notional” cases on the cause list, because they are not heard.

The system needs to be administratively revamped to make it more effective and efficient on a day-to-day basis.  Five steps to do that are set out below:

Step 1: No hearing for issuing notice

Controversial as it may sound, the Court should do away with hearings for issuing notice for fresh matters or applications.  Issuing notice simplicitor is in actuality only a process of informing the counter-party about a case or an application.  Even if a hearing for issuing notice gives the judge the background of the case, by the time the matter comes up again a few months later the judge is unlikely to remember the facts.  More often than not, the roster changes and the matter comes up before another judge.

Doing away with issuing notice would mean that practically half of the Supreme Court’s cause list every Monday and Friday could be done away with.  Similarly, practically 20%-30% of the time spent by every High Court on fresh matters everyday would be avoided.  This would free up the time for judges and counsel to focus on matters that are ripe for hearing.  While there would be an increase in the volume of bi-partite hearing, if properly managed, each matter would only come up once before the Court, as opposed to the multiple times it does under the present system.  In effective, judges would hear matters once, at which time the crystallized issue would be set out for their adjudication.

Step 2:  A Case Administrator to manage cases

Every matter or application filed must first go before a Court appointed case administrator who would specialize in managing the case until the matter is ripe for hearing.  In England this is done through case management conferences and in Singapore through pre-trial conferences.  The case administrator would assess, with assistance from counsel, the time each matter would take and list before any Court and on any particular date, only such number of matters that the Court can effectively hear.  The case administrator must also be given the power to impose costs on recalcitrant parties for non-compliance with time lines, or dismissing non-prosecuted cases.  Reflective of this is something similar to the power exercised by the Registrar of the Supreme Court, who has been given limited docket administration powers.  The power and scope of such court administrators should be increased.  Placing only such number matters before a Court that would definitely be taken up on a given day, would also effectively cut down the unnecessary waiting time for counsel, as well as uncertainty for litigants, who would know exactly when their matter would be heard.  The notional cases on a judges cause list would disappear to be better managed by the case administrator.

Step 3: Filing Written Submissions and Limiting Oral Hearings

The effect of only listing such number of matters before a Court which can be heard and disposed of, would allow judges more pre-hearing preparatory time.  It would also allow counsel to manage their case diary better because notional cases would not be listed for hearing.  Taking away such pressure, would allow counsel to be able to draft and file pre-hearing written submissions and authorities, and allow judges to read them before the hearing.  That, in turn, would allow judges to be in the know of issues involved when the case comes up for hearing, and do away with wasted time for oral arguments, where counsel would not have to explain the basic facts or show judges an authority for the first time.  Oral arguments would be about putting your effective case before the Court, more so in the Coehlo style.

Step 4: Costs

In most legal systems, costs are imposed on the losing party as a matter of course.  There is no reason why the same principles of imposing costs should not be routinely applied in India.  Costs are not imposed to be punitive in nature, but meant to compensate the party that succeeds.  The party that loses must bear the costs of the party that wins, whether it is the main matter or in an application.  For frivolous petitions or applications, the losing party should pay actual costs, and for others, reasonably assessed costs dependent on the basis of the proportion of the case and the quantum at stake.  Costs should be in the discretion of the judge and only in cases of financial hardship should the Court exercise its discretion to not impose costs.

Step 5: Undertaking as to damages

The present civil justice system has become a system for obtaining interim injunctions and letting trials take their own sweet time.  A party which receives an interim injunction benefits from delaying the trial, because it only gains by the delay.  Unlike in England and Singapore, the Indian legal system does not require the party who receives an interim injunction, to give an undertaking to the court to pay for the damages suffered by the injuncted party if, in the event, it is eventually found after the conclusion of the matter that the injunction ought to be vacated.  For example, if a party manages to get an interim-injunction halting a commercial power project for 5 years, and that injunction is eventually vacated after the trial of the matter, that party must compensate the counter-party for the damages suffered because of the wrongfully granted injunction. In such a scenario, even the party who has received an injunction would push for the trial to be concluded, because of the noose of escalating damages hanging above it till the conclusion of the matter.

The Fee Structure 

It is a myth that lawyers would earn lesser if fewer hearings came up every day in Court, or if cases are only listed once for a hearing.  Lawyers all over the world have only become financially better off, simply because they have devised a fee structure to suit the system under which they work.  There is no reason why the same cannot happen in India.

The present system is multiple hearing based and fees are charged for every appearance.  If that system changes and lawyers spend more time productively working on cases in their chambers, the fee structure will just simply change to compensate them for that work. 

In actuality, reducing the appearance based fee structure can benefit the bar as a whole.  That is because the appearance based fee system is skewed in favour of the counsel who does the actual appearance, and not the team that supports the counsel.  If the emphasis on oral hearings is reduced, and increased importance is given to filing pre-hearing written submissions, junior lawyers at the bar who actually draft those submissions and assist counsel would be able to command a fee for the work done by them.  Similarly, case management conferences, which will assume significant importance and where busy counsel will not appear, will allow the younger lawyers to play a relevant role and command their fees.  For a litigant, rather than paying for multiple short and uncertain appearances, the same fees would be paid for different categories of work done, with the certainty that when the case is listed before the court it would be taken up and heard.

Making Domestic Arbitration More Effective 

Domestic arbitrations get derailed primarily because of two issues.  The first is the manner in which arbitration hearings are conducted, and the second is the court’s role in arbitration.  As far as the role of the Court is concerned, there has been a gradual acceptance for allowing the overriding party autonomy of finality to prevail over a court reassessing the merits of a case.  The proposed amendment to the Arbitration and Conciliation Act 1996 as suggested by the Law Commission of India Report No. 246, Amendments to the Arbitration and Conciliation Act 1996, August 2014, also explains that in the proposed proviso to sub-clause 2A of Section 34. 

With that jurisprudence in place, what holds up domestic arbitrations in India is simply the manner in which they are conducted: tea-time post court hearings, or those done over the weekend.  That happens primarily because most counsel conducting arbitrations spend most of their day in court and busy arbitrators often have two cases fixed on any given day.  Interestingly, this form of conducting an arbitration is given up when the same arbitrators and counsel appear in an international arbitration, where hearings are held over continuous days and from 9 AM to 5 PM.

A way to solve the problem is to recognize the importance of the counsel practicing at the arbitration bar and allowing that bar to grow.  In India, given that growth for an advocate at the bar is normally getting the coveted designation of becoming a senior advocate: a system needs to be put in place where counsel who specialize in arbitrations should be allowed to apply to the Court for such distinction.  Section 16 (2) of the Advocates Act, 1961 allows for that because the criteria it lays down is based on an advocate’s ability, standing at the Bar or special knowledge or experience in law and not an appearance before a Court.  Counsel practicing as arbitration specialists can well meet that criteria and arbitration awards, as opposed to judgments of the Court, would be reflective of the counsel’s knowledge of the law and a determination of the counsel’s fitness to be designated.  That would allow counsel to specialize in arbitrations without giving up their growth charts and function in a system where they can do continuous and full day arbitration hearings.  This is a method successfully employed by England and Wales, where a number of arbitration specialist counsel are designated as Queen’s Counsel every year and they hardly stray into Court to conduct their cases.

Conclusion

With the benefit of hindsight, the Indian civil justice system was perhaps not ready to imbibe far reaching legislative changes for either speeding up civil litigation or ensuring finality to arbitration when they were first brought in more than a decade ago.  At that time, India was at the first stage of liberalization and still insular in thinking: Over the years, India has slowly adopted the best practices from around the world in many spheres.  It is now time to adopt these best practices for its justice system.  Tweaking will not solve the problem because it would still allow all the notional cases to remain on the file and until that happens both the bench and the bar will not use its time efficiently.  The guillotine must drop on the old, and bring in the new.

1] CIVIL JUSTICE REFORM Interim Report and Consultative Paper, Chief Justice’s Working Party On Civil Justice Reform,  Hong Kong Special Administrative Region, People’s Republic of China

[2]        Id. p. 2

[3]        Id. p.3

[4]        Primus Inter Pares: If the Singapore Judiciary First Among Equals?, Karen Blochlinger, Vol.9, No. 3 Pacific Rim & Policy Journal, p. 591 and “Making the Civil Justice System More Efficient”, A speech delivered by Justice Judith Prakash of the Supreme Court of Singapore to delegates at the Asia Pacific Judicial Reform Forum Round Table Meeting in Singapore on 21 January 2009.

Nakul Dewan is an Advocate, Supreme Court of India, and 20 Essex Street. He has been called to the Bar in India, Singapore and England & Wales.  Research contributions by Azal Khan and Geetanjali Sharma, Advocates.