Achievements

“Politicising Supreme Court Judgements”

 By

 ( Dr) Abhishek Singhvi

The apex court judgement on grant/ denial of sanction is a purely legal exercise. That should hardly need emphasis because courts are supposed to and invariably do eschew political comments. But for those, like the BJP, which see politics lurking in every bush, who want to sensationalize and try and make political capital out of every event, this judgement has provided another opportunity to tilt at windmills.  First the legal aspects. The judgement has brought about much needed certainty and clarity, but mainly by reiterating older principles of law already enunciated in earlier leading apex court judgements. It starts by reminding us of the established principle that sanction is not required once the public servant concerned has ceased to be employed in the post in which the alleged delinquency occurred. Several judgements 30 to 40 years old are cited in support.

 Secondly, the apex court relies on the venerable old judgement of Antulay ( in the original round of which I had occasion to appear as a young lawyer), to state the twin principles that locus standi is a concept foreign to criminal law and that any one has the right to set the criminal justice system in motion by filing a complaint before the appropriate magistrate.

 Thirdly, it rejects the government’s contention to the effect that the issue of grant of sanction does not arise at the stage of filing a complaint but only at the stage of cognizance of the complaint. Again, several older apex court judgements are cited to make the point that the magistrate cannot even entertain the complaint and cannot deal with it without sanction and that sanction should ideally be filed with the complaint.

 Fourthly, it reiterates the well established principle that action on a complaint can be taken even without a police report and that the latter is not a sine qua non for action.

Fifthly, it rejects the contention that investigation must compulsorily precede the taking of cognizance.

 Sixthly, it reiterates the principle that grant of sanction is not a quasi judicial process, that it is administrative in nature and that it does not require any hearing to be given to the accused. In adumbrating each of these salutary principles, Justice Abhishek manu Singhvi quotes copiously from older apex court judgements. In agreeing with him, Justice Ganguly does the same, though quoting fewer judgements.

 Seventhly, in deprecating the delay in deciding pending applications for sanction, the court again reiterates no more than the 15 year old principle of Vineet Narain’s case that sanctions should receive urgent attention and repeats the latter judgement’s time limit of 4 months.

In all this, the apex court has tread cautiously and surely, basing itself on established and venerable earlier apex court precedent.

Turning now to the political aspects, it is clear that for the past over 18 months, the opposition has tried to drag the Prime Minister ( as also the present Home Minister) repeatedly into the issue and has also tried to elicit some comment or the other, howsoever innocuous, from the apex court so as to embarrass the head of government. Dr Swamy’s links to the BJP and RSS are well known and he has publicly declared that he is on the threshold of joining the BJP. Clearly, his attempt to implicate the PM has boomeranged, since the judgement categorically gives the Prime Minister a clean chit and copiously discusses the issue in several paragraphs. In particular, Justice Ganguly notes that no mala fides were even alleged by Dr Swamy and both judges note that the delay in grant of sanction was, at best, on account of wrong advice with no personal involvement of the Prime Minister. I wonder if the BJP will emphasize this part of the judgement in any print or visual media.

Secondly, the same applies to the Home Minister to the extent that while he has not been given a clean chit, not a single comment attaching culpability to him has been elicited by Dr Swamy from the apex court, despite assiduous and strenuous efforts. As far as the Home Minister is concerned, the scene shifts to the magistrate.

Thirdly, and significantly, the very raison d’ être of sanction has been questioned by the apex court. Its existence and use over the last several decades, at least according to Justice Ganguly, raises the issue of unfair discrimination in favour of public servants and against the common man by providing an additional protective arc to the former. The Parliamentary Committee on Lokpal, which I had the privelege to chair, had, for the first time in 60 years, strongly and with several reasons, recommended the abolition of all external administrative sanctions, including those under section 19 POCA, section 197 CrPC and the infamous single directive in section 6 A of the CBI Act for lokpal covered offences. Our recommendations were accepted and the Bill with these three deletions was passed in the Lok Sabha, despite vociferous BJP opposition. In the Upper House, the initiative failed, due to lack of numbers. Those who want to politicize and sensationalize must explain to the nation why they prevented the abolition of sanction.

 Fourthly, the reiteration of the 4 month Vineet Narain time limit for sanctions and its application even to Ministers is welcome since it brings clarity and stability. The reality is that sanctions have been languishing because of bureaucratic indifference in all governments, irrespective of political color, for well beyond 4 months.

 Lastly, one area where larger discussion by the apex court would have been welcome but is lacking is the area of logistical management of this issue. Theoretically, in this country of over one billion, complaints by anyone against any public servant, on the basis of newspaper reports, with no locus limitations, can arise. Sanctioning authorities may well be flooded with such requests at all administrative levels. They will have to create special and highly focused and efficient departments to deal with the flood of requests likely to arise as an unintended fallout of this judgement.  government. Dr Swamy‘s links to the BJP and RSS are well known and he has publicly declared that he is on the threshold of joining the BJP. Clearly, his attempt to implicate the PM has boomeranged, since the judgement categorically gives the Prime Minister a clean chit and copiously discusses the issue in several paragraphs. In particular, Justice Ganguly notes that no mala fides were even alleged by Dr Swamy and both judges note that the delay in grant of sanction was, at best, on account of wrong advice with no personal involvement of the Prime Minister. I wonder if the BJP will emphasize this part of the judgement in any print or visual media.

Secondly, the same applies to the Home Minister to the extent that while he has not been given a clean chit, not a single comment attaching culpability to him has been elicited by Dr Swamy from the apex court, despite assiduous and strenuous efforts. As far as the Home Minister is concerned, the scene shifts to the magistrate.

Thirdly, and significantly, the very raison d‘ étre of sanction has been questioned by the apex court. Its existence and use over the last several decades, at least according to Justice Ganguly, raises the issue of unfair discrimination in favour of public servants and against the common man by providing an additional protective arc to the former. The Parliamentary Committee on Lokpal, which I had the privelege to

chair, had, for the first time in 60 years, strongly and with several reasons, recommended the abolition of all external administrative sanctions, including those under section 19 POCA, section 197 CrPC and the infamous single directive in section 6 A of the CBI Act for lokpal covered offences. Our recommendations were accepted and the Bill with these three deletions was passed in the Lok Sabha, despite vociferous BJP opposition. In the Upper House, the initiative failed, due to lack of numbers. Those who want to politicize and sensationalize must explain to the nation why they prevented the abolition of sanction.

Fourthly, the reiteration of the 4 month Vineet Narain time limit for sanctions and its application even to Ministers is welcome since it brings clarity and stability. The reality is that sanctions have been languishing because of bureaucratic indifference in all governments, irrespective of political color, for well beyond 4 months.

Lastly, one area where larger discussion by the apex court would have been welcome but is lacking is the area of logistical management of this issue. Theoretically, in this country of over one billion, complaints by anyone against any public servant, on the basis of newspaper reports, with no locus limitations, can arise. Sanctioning authorities may well be flooded with such requests at all administrative levels. They will have to create special and highly focused and efficient departments to deal with the flood of requests likely to arise as an unintended fallout of this judgement.

In conclusion, to describe this judgement as a ” slap in the government’s face” or as” an indictment” or as a ” severe embarrassment” is not only to ignore logic and twist facts but also to distort the English language!

Awarded the Global Leader of Tomorrow Award by World Economic Forum, Davos, in 1999, he earlier wrote a popular fortnightly column, Candid Corner, in India’s second largest English daily (Hindustan Times) and later wrote a column SubVerse in India’s largest English daily, the Times of India. He is also an occasional columnist in the largest Hindi daily, Dainik Bhaskar. The Prime Minister of India wrote the Foreword to his book of columns, Candid Corner, and also released the book. His Chagla Memorial Lecture at Mumbai University in 2007 and the GWU lecture in 2009 are published in reputed academic journals in India and USA. He was also invited to lecture on Federalism in Nepal in 2007 during the country’s Constitution formation, with that lecture published in the prestigious IIPA journal also winning that journal’s prize for the best essay.

Abhishek Manu Singhvi is Chairman of the Parliamentary Committee on Law Justice, Personnel and Grievances and  current or former Member of several other Parliamentary Committees, including Privileges, Foreign Affairs, Urban Affairs and Office of Profit. He is Chairman, Indo US Forum of Parliamentarians and Vice President, Indo Greek Parliamentary Forum. Abhishek Manu Singhvi is President, Saarclaw and Member, Governing Body, National Law Universities of Jodhpur and Delhi. He has been lead first speaker from the Treasury Benches in Parliament on almost all major Parliamentary debates during his tenure, including Indo US Nuclear Agreement, Office of Profit, Internal Security, Judicial Activism, Terrorism, the Budget, the Motion of Thanks to the President of India, the Ayodhya/ Liberhan Commission, Lokpal Bill and many more.

As Chairman of the Parliamentary Committee, the Lokpal Bill was discussed in a 30 member, 12 party Committee and reported back to Parliament in a record 10 weeks, after receiving over 10000 written representations and hearing almost 140 individual witnesses. The Report discussed and reported on over 24 issues and reflected overwhelming consensus on almost all of them. Abhishek Singhvi was also the lead speaker from the Treasury benches in the Lokpal debate in the Upper House on December 29, 2011.

Rajya Sabha MP and Congress spokesperson Abhishek Singhvi chaired the 30-member parliamentary panel that presented its voluminous report earlier this month on the Lokpal Bill 2011. The report has points of divergence with both the official Lokpal Bill draft and the Team Anna version. (The Union Cabinet on Tuesday night approved a Bill for the creation of the Lokpal with constitutional status that will have no control over the CBI but brings within its purview the Prime Minister with a number of safeguards.) Excerpts from an interview with Mukund Padmanabhan, held earlier in the day.

Abhishek Manu Singhvi is of the view that people are always born with a silver spoon, however if they do not fight hard to prove themselves in whatever career they choose, then they would get rejected in fraction of seconds by the society. He says, “The actual test of a person’s potential gradient comes to test, when they start to perform”. He cites his own example that how confused he was when he had to choose a field but at that point of time his father became his inspiration and gave him courage.

Further Abhishek Manu Singhvi is an impressive author and social activist as well.  His association with the media has been noted since a long time, with the help of his expression force and communication through his amusing and humorous, self-possessed non emotional conversational talks. His contribution in media includes the ‘Candid Corner’, a column written by him in Hindustan Times which are also published in a book form. Dr Abhishek Manu Singhvi reflects his stature of being an attractive source to the dynamic and ever-popular televised urban privileged and influential class of the society.

Apart from his various contributions as a politician, an important one is his support for the Lokpal Bill. He says, “You are creating breeding ground for corruption. You are making a body outside the whole system, with inherent conflict of interest. Our conception is of checks and balances. That is how our Constitution is framed. This bill abolishes need for prior sanction for investigation against govt servants. We have said for 60 years we should have some difference between prosecution and investigation”. This separation is created by the bill.
In 2011, Abhishek Manu Singhvi delivered the Rajiv Gandhi Memorial Lecture at the prestigious Indian Institute of Public Administration on “Parliamentary Democracy” and the Nehru Memorial Lecture at the India Centre at Cardiff, Wales, UK on “Institutional Foundations Of Indian Democracy.”

Abhishek Manu Singhvi , who is an  Indian politician belongs to Indian National Congress party. Abhishek Manu Singhvi is a man with diverse interests and keeps himself indulged in creative activities too. He  is also a Member of the Parliament of India representing Rajasthan in the Rajya Sabha, the upper house of the Indian Parliament. He was formerly the spokesperson of the Congress party. Apart from being a  renowned name in the world of politics and a member of the parliament, from Rajasthan, Dr Abhishek Manu Singhvi has been actively writing columns in several newspapers.

Abhishek Manu Singhvialways had time to appear in the electronic reports channels and has ensured to contribute his bit by submitting his voice to the print media. Abhishek Manu Singhvi association with the media has been noted since a long time, with the help of his expression force and communication through his amusing and humorous, self-possessed non emotional conversational talks.

By (Dr) Abhishek Singhvi 

MP; National Spokesperson, Congress; eminent jurist

Black money is a national scourge though there has been so much of it with us for so long that many think of it as an inevitable Indian institutional reality! Sustained, balanced, comprehensive and well thought out action, consistently taken over a period of time and involving a holistic and multi pronged approach can alone start eroding the base of this mammoth disease. Knee jerk reactions, emotive breast beating, a temporary, expedient or political approach or media harangues will yield nothing but sensationalism and continue the status quo indefinitely.

I wish Mr Advani or any member of the BJP task force had shown any initiative of any kind on this vital subject between 1998 and 2004, since they feel so excited and agitated about it now. I wish Mr Gurumurthy had berated the political masters of that period for masterful inactivity for over six years—not even a single letter to any country on this subject.

The UPA’s initiatives have been comprehensive and diverse and owe their genesis to the international consensus on this subject at the G 20 meet in 2009. This international consensus was a significant milestone since effective action on black money abroad can happen only by international agreements, be they new DTAAs, information exchange agreements or special treaties. Coercion or harangue is futile.

 That UPA means business is evident in that in the past 18 months alone it has completed negotiations on 10 new tax information agreements ( of which 9 have been initialed ) with well known tax havens. Active negotiations are on, several nearing completion, with 65 other nations to widen the information exchange platform. Additionally, an amendment to the tax treaty has been signed with Switzerland, allowing access to hitherto confidential bank information.

It is such solid legal frameworks which alone will have an impact on this scourge and stand the test of time and of court challenge, not the rhetorical flourishes of the political opposition nor the emotive idealism of the media. It makes me laugh when I hear these two sectors seeking guaranteed information sharing with, for, example, Switzerland. They should know that that country has not shared information with any other country, that even after updating their DTAAs, no clause allows exchange of past banking information (ie applies only to the future) and that information available to India under such DTAAs simply cannot be disclosed since all such agreements have a confidentiality clause. Internationally known standards would render India a pariah for breaching this clause  and no country has done so. India would then be classified as a non cooperative jurisdiction. Most vitally– and this is irresponsibly ignored by the Opposition—such unilateralism will inevitably  make it impossible for India to get similar information from other countries in the future. That will amount to securing a short term, partial sensationalism while ensuring long term failure.

Our detractors have frequently tried to confuse and confound by recourse to misleading statements. USA got nothing by way of information exchange from Switzerland by exerting pressure as misleadingly stated by the Opposition and media. In the course of prosecution by USA of an employee of UBS bank, the bank reached a purely private settlement whereby that bank alone agreed to share information available  with that bank with USA. That prosecution was possible since USA was able to catch some employees of the Bank selling fraudulent tax schemes in USA. There is no other agreement between USA and Switzerland, or for that matter with any other country, allowing general disclosure.

Since the major reason for illicit outflow of funds is mispricing, accounting for about 78% of all illicit outflows, its strict policing has resulted in doubling the detection of mispricing in the last 18 months (to Rs 33,784 cr) as opposed to Rs 14,655 cr detected over the previous six financial years. In the case of the LGT bank information released by Germany, total assessed income by the Indian authorities in 18 cases of illegal account holders has been adjudicated as RS 39 cr and demands for tax and interest have been raised totalling RS 24.26 cr.

One could go on regarding the technical realities, the minutiae and several other initiatives taken in respect of black money over the last couple of years. But the real point is that large segments of society are disinterested in the boring details which alone can create a system which will bring back black money from abroad. They want quick fixes, curt one liners, magical phrases and a show of aggression, howsoever misplaced and counter productive it might be. They also ignore the diverse measures needed to stem the rising generation of black money within the country, many of which are being diligently created and implemented by the Government. The new proposed Direct Taxes Code Bill, taxable assets have been defined to include deposits in banks located outside India, reporting requirements require obligatory returns regarding interests in entities outside India, the money laundering legislation stands amended to increase the list of scheduled offended and so on.

 No doubt much more needs to be done but that needs constructive cooperation from all quarters of civil and political society and not mere carping criticism, cavil, quarrel and nitpicking.

Times of India

Wednesday, April 1, 2009

(Dr) Abhishek Singhvi

The Congress led UPA approach to infrastructure has been holistic and comprehensive. It has included equal emphasis on physical, social and human infrastructure. Providing just under 9% GDP growth per annum for most of its term, in contrast to the 5.8% record of the NDA, the UPA has given a natural fillip to infrastructural growth. The JN Urban Renewal Mission has allocated Rs 1 lac crore to 63 cities for upgrading urban infrastructure. Rs 42000 crore is already work in progress on areas like water supply, sanitation and urban transport. 14000 houses for the poor are under construction.

The energy sector has seen the historic 123 agreement which will have long term inter generational effect. It is the first truly long term vision to make India self sufficient and energy diversified, reducing our reliance on expensive oil and polluting coal. It envisages 60000 MW by 2030 from nuclear sources. The JNURM itself involves a significant programme for improving power supply in 1500 cities. Rural infrastructure has seen the impact of Bharat Nirman—unleashing the largest ever programme of irrigation, all weather roads, houses for the poor, drinking water, electricity for all poor families and phone connectivity for all villages. 1,34,000 kms of roads in rural areas have already been constructed as against almost one third of that figure during NDA rule ie 51511 kms. UPA rule saw rural development budget rise to Rs 1,93,715 as against Rs 72,263 crore previously. The largest ever allocations have been made for health and education, wrongly called “soft” infrastructure. Education has a 900% increase in the last 5 years; the world’s largest cooked midday scheme feeds 15 crore children per day; the Sarva Shiksha Abhiyan, a resounding success, covers 98% habitations with a primary school; Navodaya Vidyalays are under establishment in 20 districts; new life insurance and medical insurance schemes respectively cover 1 1/2 crore landless households and six crore unorganized sector workers below poverty line. Big ticket infrastructure has ongoing modernization of 35 non metro airports apart from two major international hubs at Delhi and Mumbai. Number of airlines has jumped from 3 to 10 during UPA rule and the concept of regional airlines and connectivity has been promoted. Indian railways have quadrupled annual cash surplus after dividend from Rs 4208 cr (2001) to 20103 cr (2008). Total telephone connections have jumped from 99.17 million in 2005 to 400.05 m in 2009 January. Teledensity has jumped from 7.08% in 2004 to 34.50 % in end 2008. Unfortunately highways have not seen desirable achievements though the rural roads programme has been an outstanding success. The UPA success story on infrastructure has thus been inclusive, aam aadmi focused, broadbased and long term oriented.

(The author is an MP, Congress Spokesperson and jurist.)

Hindustan Times

Wednesday, October 31, 2007

 (Dr) Abhishek Singhvi It is not often that the same fact situation graphically illustrates paradigms of good governance and also its absence. I had a real life experience which both gladdened and saddened me and has lessons for the future. One of the few forms of exercise I get is a one hour walk every morning. What is more important is that I enjoy it and look forward to it. Over time, our motley gang of walkers have developed a bonhomie and solidarity which is unique. A few days ago, one amongst them took me to the plot adjoining the Sin i Fort Sports Complex where I found, to my horror, several trees already cut and one big species falling to the ground even as I arrived. To see magnificient and ancient species being mercilessly chopped generates emotions not easy to describe. Shortly thereafter, I telephoned both the Chief Minister and the Lieut-Governor of Delhi and apprised them of my anguish. Now the paradigm of good and responsive governance. I was able to get both these high authorities personally on the line. Both were extremely patient and sympathetic. Both promised to have the matter looked into. Neither fobbed me off. The felling was immediately halted. At the end of a busy day that evening, I had calls from the LG awaiting me. I also had calls from the concerned DDA Engineer. Next day I had calls from the Chief Minister and an early morning visit by the engineer with a detailed map of the area, ready with all information. Within two days, the net result was that the indiscriminate tree cutting was temporarily halted; ultimately, approximately 200 trees were saved and the project in question was allowed to proceed with minimum future cutting. Clearly, this became possible only because of the sympathetic approach of both the CM and the LG; their prompt action without delay; their accessibility and their genuine concern which led them to do follow up monitoring. Now the bad news. This sensitivity and concern remains a rare exception and does not percolate to other levels of the administration. Otherwise, why on earth would anyone have approved a bypass road from the sports complex to the main road if it involved felling of hundreds of trees. If you see the site—and I have done so in detail—there is absolutely no doubt that the new proposed badminton and squash stadia proposed to be built there for the commonwealth games require no such road. Easy access to such stadia was available from the sports complex itself. Second, the man at the spot decided to make the road, treating the preexisting nearby wall as static and unchangeable but treating hundreds of trees as removable! 200 trees have now been saved by the simple expedient of demolishing this preexisting wall and preserving the trees as a central verge to be flanked on each side by the same bypass road! Why it needed the LG’s and CM’s intervention to do this defies explanation.

by Dr. Abhishek M. Singhvi

I deem it a rare privilege and a special honour to be asked to deliver a lecture in the series dedicated to a remarkable son of India, Shri M.C. Chagla. I am amazed at the diversity of his achievements, the zest and vigour of his life, the glittering array of milestones accumulated and the fragrance which imbued and impregnated his unique life. A 1973 autographed version of “Roses in December”, in the first year of its publication, by the great man himself was presented to my father and I browsed through it again a couple of days ago. A 2000 centennial year publication was inscribed and presented by his illustrious son, Mr Iqbal Chagla, and is also a prized possession. One can hardly think of any other personality with the educational lineage of Chagla at Bombay, Oxford and London, his role as a teacher and Vice-Chancellor, as a successful lawyer, a puisne Judge and the Chief Justice of the Bombay High Court for 11 years, a diplomat having represented India at the two most important foreign postings in the gift of this nation, a Law Commissioner, a Judge of the International Court of Justice and a Cabinet Minister for Education and later for External Affairs.There is hardly a figure with such an unparalleled set of achievements.

As I turn to the subject of Delayed Justice and the Battle of the Bulge with arrears, I am in a sense disillusioned that today’s interaction will do nothing more than add to a corpus of talks, seminars and symposia on the subject but will not add much to the debate since the problem in all its facets as also the solutions with their different nuances are already known.

The first preliminary point that I wish to make is that the backlog of cases before the courts and arrears can be met only by less talk and more action; by less  lectures and more implementation; by less legislation and more ground achievement. Neither the problem nor the solutions are new: what is required is consistency of application, focus of will and determination, diversity of panaceas and uninterrupted bombardment of the problem with nitty-gritty solutions.

Secondly, the mammoth numbers of arrears thrown at us should be neither a deterrent nor a depressant: seen closely, they are but meaningless figures which can reduce dramatically and exponentially like a pack of cards, if attacked at the core.

Thirdly, Thomas Hardy’s admonition, “if we take care of the small things; the big things will take care of themselves”, applies directly to the arrears

Fourthly, the approach has to be holistic, not piecemeal, multi-pronged not partial, curative as also preventive. Finally, it has to be surgical, somewhat bold, unconventional and even shocking, to electrify us, to jolt us out of our somnolence because while the present system helps no one, it chugs along because of the inherent inertia of the system itself and because every one either takes it for granted or considers the problem too awesome to address. It is thus time to be blunt, not diplomatic. In any event, a diplomat is one who can be disanning when his country is not. instead, we have to start a HALT campaign, to halt not only the continuing slide into ever expanding arrears but to Help Abolish Legal Tyranny, which is what the acronym I-{ALT stands for.

In all this, we cannot and should never underestimate the importance of attitudinal change. This may be the most nebulous, the most unquantifiable, the most non-specific but it is nevertheless the most vital. The trick is to embed the ethic of legal reform and ADR in the psyche and bloodstream of the principal dramatis personae of this system. During early 199os even the Supreme Court then had a tangible arrears problem: the degree of indiscipline was larger, the Registry was much more disorganised, adjoumments were a matter of course. During my involvement with the Ahmadi project, I found that simple procedural changes slowly brought about a sea change in attitude amongst all the actors at the Supreme Court-judges, lawyers, registry officials, litigants and so on. By 1997, all had developed a vested interest in ensuring that the system functioned efficiently. That attitudinal change happily persists to this day but, clearly, a tectonic attitudinal shift had taken place in comparison to the early 199os and earlier. As is rightly said, “Attitude, not aptitude, determines altitude i.e. how high you soar.”

Finally, the importance of teamwork cannot be underemphasised. In the war on arrears, the entire judiciary, indeed the entire legal system, has to function as a seamless web, an indivisible whole. The role of the judiciary as a whole but most particularly of the Supreme Court, is vital-as a catalyst, as an organiser, as a facilitator, as a monitor. as an umpire, as a participant, as an observer and at the apex level, as a role model. They have to lead by example. They are mentors. They have to enthuse by spirit, reinvent by conduct.

We have to try everything which promotes efficiency and we have to do it by gradually abandoning stereotypes. For example, recent proposals at the Supreme Court to outsource innumerable court activities, including cleaning, sweeping, transportation, running a canteen, providing security or even stenographers, reflect the wind of change. Carping criticism should not deter us. There have always been doubting Thomases who will, for example, raise the bogie of confidentiality in outsourcing stenographers. But just like better policing maintains confidentiality in the current system, there should be no reason to ban outsourcing because of lack of will to do more stringent policing.

Similarly, a two-shift set of trial courts-night courts as they are called- provide an example which has already yielded significantly positive results. Although they function for only a couple of hours in the evening in Gujarat, they have disposed of 16,000 cases in 45 days. Imagine the all-lndia effect if every State was to make them functional and entrust certain categories to them for BEATING THE BACKLOG: LESS TALK, MORE ACTION .l-l l disposal like matrimonial disputes, petty crimes, cheque bouncing cases, the Motor Vehicles Act claims below a certain monetary value, petty cases under the Industrial Disputes Act etc.

Horror stories abound regarding length of pendency. The 2002 Parliamentary Standing Committee on Delays gives examples of cases pending for over 50 years, for over 40 years and for over 30 years in certain High Courts‘. No one has yet explained as to why a simple screening in each of these High Courts should not be lead to an immediate listing of these old cases and their disposal within a few months thereafter. The parliamentary report notes that over five lakh cases were pending in 2002 in the High Courts for over a period of 10 years and over 3 lakh of them were 7-10 years old. The problem is not that they cannot be disposed of; no one is bothered to find out the information. The moment this information is available, these cases can be tracked and listed for disposal. Indeed, the moment they are tracked and listed, it will be found that a vast majority of themhave already become infructuous, moot and non-live. Most of them would be disposed of within a few months of their first listing, if listed. They remain a statistic, merely because they have not been screened or tracked. A 50-year or a 40-year or a 30-year-old case is bound to involve a party who has died; aggrieved employees who have found new pastures or a changed fact situation which no longer has any real life effect. No complex or intensive adjudication is required for disposing of such sterile figures on a file.

The two biggest causes of delayed disposal and piling up of arrears are shortage of judicial officers and lack of availability of adequate infrastructure. It is an old and established truth that India has one of the lowest number of judges per million of population. From the 1987 figure of 10.5 it is somewhere at 13 now. Most developed and developing countries have over double that figure and in All India Judges’ Assn. case? in 2002, the Supreme Court has specifically directed that that figure be raised to 50 judges per million in a phased manner. We do not appear to be anywhere near that for the simple reason that for this vast country, less than 700 High Court judges exist in the 21 High Courts. And at any point of time, approximately 100-150 of that High Court strength remains vacant. Correspondingly, with an approximately 3 crore, all India pendency, of which the subordinate courts as on August 2006 had 2.53 crores, we have only a princely number of 14,412 judicial officers. At any point of time approximately 25 per cent of these posts remain vacant. At last count, 2546 out of those 14,412 were lying vacant. Can any medical system treat patients without hospitals and without doctors? One need not be a genius to realise that even trebling or quadrupling of this strength at both the High Court level and at the subordinate court levels would still hardly be a drop in the ocean.

Why, then, are changes not done and how can it be done expeditiously? The Chief Justice of India and the Chief Justice of the various High Courts have to take up this issue with their respective judicial collegiums. the State Chief Ministers and the Prime Minister to ensure that at least one month before a High

1 The oldest appears to be a 1950 pendency in the MP High Court: a 1951 case is pending in the Patna High Court; a 1956 pendency exists in Rajasthan and a 1955 case is pending in the Calcutta High Court.

2 All India Judges’ Assn. v. Unfrm oflmiia, (2002) 4 SCC 247 : 2002 SCC (L.&S) 508 J-12 SUPREME COURT CASES (2007) 2 SCC (J)

Court judge retires, his successor is notified. It would be almost Orwellian and comical, if it were not tragic, that some years ago we increased the sanctioned strength of almost all our High Courts but till date even the original unincreased (i.e. original sanctioned) strength invariably goes unfilled for months. For the

subordinate courts, this responsibility and exercise has to be borne by the respective State Governments. If the powers that be genuinely get together on a

monthly basis to simply ensure that deadlines in appointments are met and that zero vacancy in judicial posts is achieved, this problem would not be as grave as

it is today. The delay in filling up sanctioned vacancies is usually attributable to the selection process, to internal ego problems, to procedural delays and to file

movements-none of which are insuperable. A core group for the High Court and for the subordinate courts to monitor the movement on such issues can achieve dramatic results.

As far as the increase in strength to the promised 50 judges per million population is concerned, the biggest hindrance is the meagre plan allocation for judicial infrastructure, from the ridiculous figure of 0.071 per cent of the plan expenditure in the Ninth Plan to 0.078 per cent in the Tenth Plan. (Prior to 1993, the  expenditure on the judiciary was not even treated as planned expenditure.) The judiciary, as a whole. must take up the issue with the Government on a war- footing, seeking a three-fold or five-fold increase in this infinitesimal percentage. Considering that mega projects in infrastructure, be it in electricity, telecom, highways, or the like, are the norm of the times, there is absolutely no reason why outlays on judicial infrastructure, in terms of court rooms, furniture, libraries, manpower and so on, at a cost which is fractional when compared to such mega projects, is not significantly enhanced. The example of Chhattisgarh again illustrates the point strikingly, though other States would be broadly in the same situation. The expenditure budget of the entire State from all sources for 2006-2007 is Rs 56.91 thousand crores while the allocation to the judiciary is Rs 22.16 crores only i.e. only 0.40%. Moreover, this includes expenditure on salaries, etc.-how much is left for infrastructure development can be fairly guessed. Justice MJ. Rao, heading the Law Commission, estimated in 2005 that  the total investment required for clearing the backlog of all High Courts and the subordinate courts would be only around Rs 2100 crores and the running annual expenditure would be about Rs 875 crores per annum for five years. It appears to be a ridiculously low price to pay for proper administration of justice. It is tragic that even court fees collected under an activity specific and service specific heading like court fees is not accounted for under this head. Since court fees are mixed with other collections of taxes, no one knows the exact collections of court fees. Here again the judiciary, the profession and the litigating public lose out to what is rightfully exclusively theirs.

Some simple calculations can illustrate the serious adverse impact of unfilled vacancies. Chhattisgarh Subordinate Courts had vacancies of 19, 29, 47,57 and 40 respectively in each of the five years from 2001 to 2005. For these years, the average disposal per judge per year varied from 1049 to 1423. A simple multiplication would give the cases which each judicial post would have disposed of each year had the seat not been vacant. The total cases decided less for the 2001-2005 period for Chhatisgarh Subordinate Courts thus totals 232,856.

We have also hardly used the constitutional power to have a large additional number of ad hoc judges under Article 224-A of the Constitution to work for five years or more till the backlog is cleared. The provision for ad hoc judges has one great advantage over other forms of recruitment-it provides a readymade pool of known judicial talent, tried and tested, which can be relied upon to be competent, clean and efficient. Indeed, Article 224«A permits even retired judges from other High Courts to be appointed.

Since we know that the excess of filings over disposals (both civil and criminal) are about 15 lakhs per year and since we know that the average disposal per  judicial officer per year is about l 150, we can easily work out how many additional judicial officers we need to tackle the filings/institutions. Similarly, if the current arrears at the subordinate level is two-and-a-half crores, we can work out how many additional judicial officers we need to dispose of this backlog. Unless we take surgical steps to appoint the requisite number of additional judicial officers on the basis of such calculations, we will only find the backlog spiraling out of control each year even as we sermonise, analyse and hypothesise.

Similarly, we know that the excess of filings over disposals in civil cases is approximately 1 to 2 lakhs per year while such excess in criminal cases is about 9 to 10 lakhs. That means that we need five times more criminal courts to tackle the backlog as compared to civil courts. Statistics also establish that the increase

in cases between 1985 and 2003 is 84% while the increase in judicial officers during the same period is only 40%.

About the delay in litigation in India Nani Palkivala, stated in his inimitable style thus:

“May I turn to the situation in India which has the second largest number of lawyers in the world‘? While it is true that justice should be blind, in our country it is also lame. It barely manages to bobble along. The law may or may not be an ass but in India it is a snail: it moves at a pace which would be regarded as unduly slow in a community of snails. A law suit, once started in India is the nearest thing to eternal life ever seen on this earth. Some have said that litigation in India is a form of fairly harmless entertainment. But, if so, it seems to be a very expensive way of keeping the citizenry amused. If litigation were to be included in the next Olympics, India would be quite certain of winning at least one gold medal.”

With all the hype about computerisation and judicial infrastructure enhancement, the tool for dispensation of justice in most courts remains the doughty old reliable typewriter. The recent Registrars and law secretaries conference as late as December 2006 found to their horror that only Punjab, Haryana, Orissa, Karnataka, Delhi and Bihar have substantially computerised their trial courts. Is it too much effort or is it unacceptable expenditure to start a campaign on a war footing to fully computerise all our trial courts, to clean up the backbone of the system, from the rickety chairs to the pan-stained walls to the sticky, humid non-air-conditioned courtrooms to the uncleared dirt and bins at every district and lower judiciary complex? It is only inbuilt inertia that maintains this status quo.

The French have a saying: the more things change, the more they remain the same. I got that feeling a year ago, when, on a summer Saturday, I appeared, after more than a decade, at the District Court of Gurgaon in a high stakes and keenly contested case.

The Court complex had a large number of chairs scattered over a large hall, demarcating the territories of the lawyers who sit and consult with clients in the open and is the hallmark of most District Courts in India. The building was somewhat less dilapidated and the walls less pan-stained than those found in the District Court systems of Bihar, U.P. and even Delhi. Yet the atmosphere was sultry. humid and oppressive, even in the open. Touts could be seen operating openly at a distance. The actual courtroom on the first floor was being run by a lady judge seated on a slightly raised platform. Her large room had a solitary fan (that too in the centre and not above her) and she had about 60-70 cases to deal with. There was no computer, no gleaming filing cabinet and certainly no air conditioner. Well before my turn came to argue the case, I was feeling faint and perspiring profusely.

The lady Judge was “manfully” and most admirably dealing with a cacophony of simultaneous activity: her “ahldaar” would stand at the entrance of the courtroom and defeaningly shout out the name of the next case/litigant, while her typist would continue furiously typing in the evidence of another litigant with hardly any interference by the judge, while she would be hearing oral arguments in a third case. Some very aggressive looking litigants, a few dangerous looking criminals, some hefty policemen and several burly and dominating lawyers completed the picture. The walls were dirty, the comers covered with cobwebs and endless layers of untouched dirt while frayed, almost disappearing files and books decorated the few almirahs and shelves in the courtroom.

The Judge was intelligent, with a quick grasp of the issue at hand. She was also remarkably patient and polite, in the vast majority of cases she heard. She also dictated, in reasonably good English, legal orders which appeared unexceptionable.

None of the above is new or unknown. With variations of degree, this can be the story of most of our district judiciary, which includes the District and Sessions Judges as also the Civil Judgefmagistracy below them. Here are people who, by law, are given the divine power of life and death over their brethren (a death sentence by the Sessions Judge is subject to confirmation by the High Court) and exercise unlimited pecuniary jurisdiction on the civil side. Here are people who, in many cases at least, are sincere, hard-working and intelligent. They still have some idealism left. Yet what conditions do we make them work in? One cannot imagine the sheer physical torture of that lady judge, sitting six days a week in that courtroom, come rain or sunshine trying to apply her mind to enormous stakes in such an oppressive ambiance.

More importantly, what has been the ground level effect of all the committees, commissions, reports, seminars and pious declarations, over the past at least two decades, on the subject of improving court infrastructure, as far as an actual functioning of District Court, is concerned? What has happened in real terms to the several orders of the Supreme Court in terms of improving libraries, computers, furniture, housing, transportation, courtrooms, stenographers, staff and so on at the actual ground level of the district judiciary? How can ‘India think of competing with China and give tall lectures on globalisation when a District Court in even the most prosperous part of Indiacannot provide air conditioners in its District Courts? The many Indias in one is not at all less in the judicial sector: imagine  telling a High Court judge (leave aside a Supreme Court judge) to function in remotely similar surroundings and there would be all kinds of mandatory orders, contempt proceedings and PlLs to put an immediate stop to what would rightly be considered a menace.

If that be so, is it because we treat our district judiciary as not deserving importance, simply because that segment is not as vocal and assertive as the higher judiciary? Should we wait till the district judiciary, the backbone of the system as far as the common man’s interface with justice delivery is concerned, start going on strikes and then give pious lectures on why judges should not strike? Or should we demean them so much in front of the lawyers, litigants and police who daily appear before them that they are left with no dignity and no moral authority, without which the common man cannot possibly have any faith and respect in the dispute adjudicatory system?

The scenario is not always pessimistic. A lot of initiatives have been taken: what is necessary is that they be applied untiringly and consistently as shown in the case of the implementation of the report of the Supreme Court’s committee on implementation and communication technology (ICT) in the Indian judiciary,

chaired by retired Justice Bharuka.

The report owes its genesis to the initiative of Chief Justice Lahoti in proposing an ICT reform cell in the Supreme Court at the last CJs conference and thereafter constituting an e-committee through the Government of India in December 2004. The committee’s terms of reference were comprehensive: from obtaining updated status of computerisation in all High Courts and lower courts, to making a specific diagnostic study of existing IT applications in certain specified High Courts and subordinate courts, to formulation of a national policy on computerisation of justice delivery system, to designing an IT network, to creating an IT grid linking the Supreme Court to all courts in India, to drawing up of a time-bound action plan and creating of infrastructure and manpower support systems for the foregoing.

Based upon similar work done in Karnataka by Justice Bharuka when he was in the Karnataka High Court, the committee has done remarkable work in a very short period of time and already submitted its main reports in May and August 2005. It has provided a comprehensive action plan for a host of diverse initiatives: creation of computer rooms at all court complexes with internet provisioning, providing laptops tojudges, ICT training, manpower development, creation of software, extension of computer facility from filing counter to judges chamber as also to all sections of the Registry, provisioning of video conferencing facility between undertrials and courts, digital archive of record room and libraries, use of advanced [CT tools including biometric facilities, gateway interface with other agencies and so on.

Several facets of this exercise are refreshingly different from the norm of endless committee terms, unreadable tonnes of reports and lax or non-existent  implementation. First, since it was the Chief Justices’s initiative, it did not get bogged down in bureaucratic delays but was kickstarted expeditiously. Secondly, since it involved a hands on Chairman with long and direct experience of this specialised subject, it proceeded in a very focussed and result oriented manner. Third, the entire exercise was completed in six months or so-an occurrence so rare as to be (pleasantly) shocking. Fourth, the main report is followed by a very specific action plan, with specific timelines for each task and a specific costing of each activity. Fifth, it is significant to note that the total

five-year implementation period, spread over three phases, is estimated to cost only 854 crores, an insignificant sum when seen in the context of the huge public interest involved and the wasteful expenditure reflected day in and day out in several paradigms of governance. What is now required is a strong.

constructive judiciary-Government partnership in operationalising the specific recommendations of this report within the stipulated five years.

The National Judicial Academy at Bhopal in particular and continuing legal education in general got a big boost over 2004-2005. About 17 programmes were conducted, with over 700 judges of the lower judiciary and High Courts participating in seminars, workshops and interactive sessions and being exposed to new ideas, subjects, technologies and avant garde trends in law. A busy schedule of 24 further events over the next twelve months from July 2005 was chalked out and has been implemented. A unique feature has been the commencement of a summer retreat for Apex Court judges at the Academy where almost a dozen judges of the highest level interact intensively with experts from different fields for five days. A far cry indeed from the times when protocol and pomposity would make this a highly unlikely event, at least for the higher judiciary.

Apart from the momentum and synergy imparted by such collective gatherings with interdisciplinary inputs. several practical programmes are underway to enhance the efficiency of the judicial family. For example, any judge anywhere in India, can now seek research assistance on any complex or new area of law from a special cell created at the Academy and is supplied expeditiously with a researched response by email at no cost. The country’s I4

State-level judicial academies, functioning thus far in a patchy, non-coordinated manner, are now gearing up around a broadly uniform module and are in constant interactive exchange with the central Academy to ensure a synergical effect of their programmes across the length and breadth of India.

Alternative or consensual dispute resolution-ADR or CDR-outside the traditional justice system, by mediation, conciliation and other methods, have also received considerable impetus and dynamism by the setting up of an Apex Court committee to create modules of implementation at different High Courts, in addition to the already successful Lok Adalats. The movement on this front has been slower than the two initiatives above but a national ADR plan is in the offing. The plan is modelled on the existing pilot successfully functioning for some time at Delhi. Trained mediators who are District Judges are disposing of a fair number of cases and the High Court judges frequently refer several matters to them. A similar pilot has been functioning successfully at Gujarat. What is necessary is to tie them all into a national, uniform, all-India plan of court- annexed ADR at each level of the court hierarchy. This is the preventive part of arrears management, as opposed to the curative element. Like a system with clogged arteries, an arterial bypass is needed to be institutionalised and ADR is that bypass, not only to the legal system but to the original bypass itself viz. arbitration.

The Delhi Mediation Centre (DMC), run with messianic zeal by Justice Madan Lokur of the Delhi High Court, has trained judicial officers as mediators. Judicial mediation has been found to be statistically the most successful method of ADR even in California, the oldest functioning model of court-annexed ADR. DMC has institutionalised judicial mediation for the first time in India. Effectively, about 30 judge mediators are functional. They adjust their judicial board in such a manner that no inconvenience is caused to litigants and lawyers. DMC now proposes to have a dual track mediation program i.e. judicial mediation and mediation through lawyers.

The referring judges are sensitised on the nature of the settlable cases so that inconvenient cases are not offioaded to DMC. A judicial officer acts as a full- time coordinator to manage the listing of cases before mediators and looks after overall administration. The timing of cases is fixed. Litigants are not required to hang around for their cases to be called out. In any event, the case is not adjourned. Punctuality and discipline are thus inculcated. Statistics supplied by Justice Lokur for the one-year period, December 2005 to December 2006 show that the Karkardooma District Courts at Delhi settled over 77% of cases referred (minus cases not fit for mediation). The corresponding figure for Tees Hazari Courts is about 60%.

The preventive role of CDR can be quite remarkable. In California, the pioneer in ADR, only 2% of cases filed go to trial. A shortage of trained mediators is a serious problem. We must develop an all-lndia uniform module for training and certifying trained mediators. Students represent an ideal pool from which a talented group of trained mediators can be produced. Designing this module and drafting such curricula, rules and syllabi with apposite certification is the need of the hour.

In this scheme, appellate ADR should slowly be expanded since it is no less important to address the problem at the appellate level and since this continues to be underaddressed in the Indian system. At every appellate stage, as in the US, there should be trained officers, part of the court’s permanent staff who sit in prefiling conferences with the proposed appellant and try to persuade him why not to file the appeal or the costs and consequences of a failed appeal.

As we celebrate the f1fty-seventh birthday of our Republic, it is important to rededicate ourselves to law reform in this field. No amount of sermonising, slogans, shibboleths or high platitudinous principles can substitute for nitty- gritty commonsensical reform in the legal system.

Ironically, most of such commonsensical reform requires no elaborate legislative or structural alteration. For example, we all know that there are millions of cases pending in our courts. Lakhs of them involve deposit of moneys in court, for example, by a private petitioner claiming quashing of a government bill or demand (part of which the court has asked him to deposit) or by one private plaintiff seeking injunction against another where the court directs him to deposit some money as security for the injunction sought by him. lnnumerable cases of this kind involving deposit of different sums of money added up, in the Delhi High Court alone, to deposits of over rupees 55 crores lying with the Registrar of the Delhi High Court. Astonishingly, the large majority of them have remained with the Court, without being deposited in any interest bearing account or fixed deposit. The result is that after many years of torturous litigation, whichever side wins does not get the moneys with interest but merely the amount lying sterile with the Registrar. There is no order of the Court directing such deposit in an interest bearing account; no one has addressed the issue and the Registrar cannot make the deposit without an affirmative court order. Rupees 55 crores would have doubled in about 7 years in a proper interest bearing account and many litigations take considerably longer than that. Fortunately, because of the exertions of a dynamic and result oriented judge of that Court, Justice Lokur, the figure of 55 crores has reduced dramatically. But this was the figure only for one High Court: add up the figures for all High Courts and all District Courts in the country and we will have a truly humongous and staggering number. Not only has no one addressed the issue but a mere two line generic order from each High Court in respect of itself and all the courts subordinate to it would lead to the deposit of such vast sums of money in productive interest yielding accounts, benefitting everyone and prejudicing none.

Take a second example. An Indian observer of a US criminal court would be surprised to find a highly proactive prosecution agency plea bargaining with an accused regarding offence and sentence. His astonishment would increase on finding that even the US judge takes a similarly aggressive and interventionist approach with the accused to arrive at a plea bargain settlement. The absence of this system and the absence of an independent Directorate of Public Prosecutions in India results in some truly piquant and highly avoidable situations, adding unnecessarily to the backlog of pending cases. In dowry demand cases under the notorious Section 498-A of the Penal Code, after an acrimonious and exhaustive battle, when both warring spouses decide to put an end to criminal cases-as frequently the spouses desire to do after exhausting themselves with reciprocal harassment-they find that they cannot withdraw the FIR/complaint, even by mutual consent. instead, one of them has to file a quashing petition to the High Court to quash the complaint. Not only does this generate additional litigation solely for the purpose of ending litigation, but the outcome is frequently negative because the legal tests for quashing are different and stricter and no one can be sure of the outcome in the High Court3. Fortunately, one part of this problem has been addressed with the recent substantive amendments in the law relating to plea bargaining; the issue relating to an independent directorate of public prosecutions still awaits implementation‘though ongoing PlLs on general police reform are pending at the Supreme Court.

Process serving-the act of serving the opposite side with all papers, without which no judicial proceeding can be ripe for disposa1-is perhaps the most endemic and common cause of litigation delay. I have known of several cases where well-known people-even eminent and famous people-are not even served for two or three years and yet everyone (except the court) knows their whereabouts. Delayed service engenders huge and irreversible delay at the

3 The Supreme Court decision in B.S. Jashi v. State afHaryana, (2003) 4 SCC 675 has eased thisSIIIHIIIOTI.

4 The amendments to the Criminal Procedure Code in 2005 envisage setting up of a prosecution system. But these remain to be implemented by the States. threshold. Only a comprehensive interaction with the lower judiciary can develop an appropriate set of guidelines to deal with this common problem.

One must also ask as to why a number of the laudatory initiatives of the Apex Court are not fully rephrated at the High Court level and more particularly, with suitable modifications, at the level of the subordinate judiciary. Some of these relatively simple yet effective reforms at the apex level include compulsory knowledge of computers for new entrants into the staff of the judicial system, Compulsory computer training for the existing staff, the listing of a new/defect free case within a few days (still a distant dream in several High Courts), the availability of full information on the internet in respect of a case filed, including defects in filing and its status in the adjudication pipeline. Priority is still not given at the subordinate level and in several High Courts to certain deserving categories like cases of senior citizens, matrimonial disputes, cases involving out of job labour, group matters, short matters, election disputes and so on. Computerisation is necessarily a key weapon in the war on arrears but while the Supreme Court is already implementing exciting projects at the cutting edge of advanced technology, the other courts are still a far cry away. Some of the Supreme Court innovations in thisregard include the availability of a list of filing defects of 379 standardised items available on the website, digitisation of old records (not only releasing valuable physical space but preventing loss of records, expediting retrieval and facilitating dissemination of documents on internet). automatic listing and redistribution of cases amongst Benches. e- kiosks for the common man to get all information on his case at the touch of a button, interactive voice response system enabling a litigant to access the status of his case on a prescribed phone number, availability of all cause-lists on the net, computer controlled attendance system for all court employees, bar code based file tracing system, video conferencing facility to ensure instant communication within the large judicial fraternity, availability of digitally signed certified copies and so on.

Transparency increases accountability and information dissemination is the key to transparency. The very welcome announcement by former CJI, Lahoti a few years ago of the proposed publication of the annual report of the Supreme Court must be replicated at the level of each High Court and eventually at each subordinate court and the data therein must be displayed in a uniform, prescribed format to facilitate comparative analysis.

Many of these initiatives have been formalised into schemes with fancy acronyms. The three-fold strategy is encapsulated in the National Judicial Education Strategy Plan (NJES), the National Judicial Infrastructure Plan (NJIP) and the National Plan for Mediation (NPM). What is necessary is for these to be operationalised and to become a part of routine justice dispensation at the bottom trial court level.

Fast track courts (FTCs)-1500 of them at the moment-are doing good work in certain designated subjects. In the first five years of their creation (2000- 2005), they have disposed of over 8,00,000 cases, although that is only 50% of the over 15 lakh cases transferred to them. Hopefully, in their second term (now extended to and expiring in 2010), they will do even better. Regional variations and disparities have to be equalised-there is no adequate explanation why the national average for disposal by these courts is 15 cases a month while in Tamil Nadu the figure is 63. Perhaps we should also add specialised FTCS on certain additional specified subjects, like corruption cases under the Prevention of Corruption Act and the like to cleanse up the system and restore public faith in the justice delivery system. Unfortunately, corruption cases of i981 vintage are still pending.

Since disposals at all the three levels- Supreme Court, High Courts and District Courts-broadly equal average institutions per year (not strictly accurate, since the High Courts fall behind by about 1,150,000 cases per year and trial courts by over 10 lakhs per year), it is critical to develop additional second tracks of disposal only to attack the pending arrears while the current filings are tackled by the existing burdened infrastructure. Unless such second tracks are developed, the arrears problem will become perpetual and irreversible-indeed, it will keep increasing each year. (This cannot and should not detract from the fact that our courts at all levels are already doing a Herculean task. The High Courts dispose of 15 lakh cases each year and subordinate courts collectively dispose of 1.35 crore cases per year. FTCs are one answer, but the current strength is too low for the size of the problem. In a sense, night courts and the proposed Gram Nyayalayas are also FTCs by another name. Whatever helps in additional disposals is desirable, but there should not be too much mid-course correction or alteration and there has to be integration of all schemes into one larger, grand action plan. Such integration is also vital for a holistic approach, to see the larger perspective, to evaluate the total progress towards the common objective of a zero arrears nation. For that, it is also imperative to keep the normal disposal track and the additional, second track separate and distinct at all times.

It is imperative to provide a judicial impact assessment while introducing any parliamentary or State legislation-5. Pursuant to US Chief Justice, Warren Berger’s similar suggestion way back in 1972, the US Congress passed legislation in 1974 and established a special Congressional Budget Office to ‘estimate the budgetary impact of legislative proposals on courts. Given the fact that over 340 Central legislations in India create rights and offences which are administered by subordinate courts run by the State Governments, the Centre would have an obligation to either fund the States or not ask for matching State grants for centrally sponsored funding for judicial infrastructure. Indeed, these Central laws account for over 70% of all trial court litigation, since they include statutes such as IPC, CPC, the Transfer of Property Act, the Contract Act and so on.

The Gram Nyayalayas (GN) will be an additional adjunct at the lowest level of the subordinate judiciary. They will include mobile courts. They will be manned by Nyayadhikaris who-are supposed to be legally qualified persons. They will deal with civil and criminal cases-on the criminal side. their jurisdiction will be limited to compoundable offences or to those with a maximum punishment of one year while on the civil side their jurisdiction will be the same as that of the lowest level Civil Judge. Whenever these GN receive cases in excess of these jurisdictional limits, they shall refer it to the appropriate civil or criminal court in the normal hierarchy. In civil matters, the GNS are required to act on a day-to-day basis and after mandatorily trying mediation/conciliation procedures at the inception, are required to dispose of the case by adjudication within 90 days. On the criminal side, they will follow the summary procedure of CrPC and on the civil side. the analogy of the principles of CPC, without being bound by the latter. The Bill for GNs is yet to receive parliamentary approval but it is expected to be pushed through in the forthcoming Budget Session of Parliament in 2007.

On the criminal side, an immediate listing of certain categories of petty criminal offences is required, including traffic offences, compoundable offences and so on. A whole army of competent advocates, at all district levels, of a certain standing and a certain seniority, have to be then conscripted on a war footing to take up the disposal of these cases and to serve as temporary or ad hoc judges for two or three years. The Recorders in UK do much the same though they are always picked from designated QCS. The arrears problem on the criminal side will reduce and even vanish in no time.

India’s largest High Court has an advance cause-list, an emergent cause-list, a weekly cause-list, a mentioning cause-list, a normal daily cause-list and perhaps a few more. Some list normally list matters; others list those deemed necessary for urgent hearing; still others give the whole week’s list and so on. First. the bewildering multiplicity of cause-lists itself means that each list is an exception to the other, thus rendering an earlier list redundant since it is superseded by another list. Secondly, it encourages everyone to leapfrog out of turn over older pending cases which should rightfully get priority and not the other way around.

Thirdly, it makes the very purpose of printing cause-lists superfluous because they serve no purpose and no one follows them. Related to this is the tendency to publish humongous and unrealistic cause-lists. A stranger visiting the courts and seeing our cause-lists could be forgiven for thinking that we are the most conscientious country in the world with the highest disposal since our cause-lists are bursting at the seams and often run into hundreds of pages. These are only theoretical-running through the cause-list takes up almost 50% of court time and matters are merely adjourned. Instead, to publish shorter and fewer lists and sticking to them would inject far greater discipline and seriousness into the system. It is better to dispose of 20 cases finally rather than run through 100 cases, adjourning 90% of them.

A strict screening process by trained staff specifically assigned for this purpose must list only ripe and ready cases. This must follow upon a strict and uniform all-lndia classification and categorisation system. All non-adjudicatory, procedural and housekeeping functions must be completed by this set of expert officials before the judge opens the file and the judge’s maximum time must be spent in substantive adjudication and disposal. The list for seven days must be published and be on the web at least one week in advance to ensure certainty not only for the lawyer but for the litigant, whose time is usually considered worthless. The moment a judge has crossed a minimum, defined threshold of time and familiarity with the case, it must be tagged with the judge for life, irrespective of roster changes or judicial transfers. Judges will thus realise their “cradle to grave” responsibility to finish a case which they have dealt with partially and litigants will likewise not have any lurking hope or incentive to delay matters in the hope that a judge with a contrary view on the merits of the case can be avoided. Such “permanent rostering” is not uncommon in other jurisdictions.

No system can work efficiently or without delays unless they properly utilise the awesome and potent and yet most underestimated weapon of costs andlor advance security against interim orders soughtfi. [ndia’s open door, walk- in-walk-out approach to litigation is one of the biggest incentives for a far greater quantum of case filings and for a premium on delay. Take, for example a plaintiff who obtains a stay against a 1000 crore rupees project. Within three months, the case is found to be totally frivolous and unmeritorious. The plaintiff apologises and walks away. The injunction is vacated and the defendant is supposedly victorious. The reality is very different. The defendant has suffered a loss of lakhs of rupees, almost entirely incompensable. The plaintiff suffers nothing: he gets publicity, bears his own costs but not a penny of the defendant’s costs. Most importantly, the plaintiff is emboldened to take another potshot at another case since the system does not penalise him for a casual, frivolous claim. Probably no other developed or even semi-developed legal system has such a hospitable and welcoming open door policy with no pinching of the shoe evenafter a finding of total lack of merit. Amazingly, the power to both impose real and even huge costs as also to demand a security in advance as a condition for awarding an interlocutory injunction vests and rests with the Indian judiciary for decades and requires no legislative amendment. Yet, a weakness for populism at the Bar has led to gross underutilisation of this potent weapon, even a partial use of which cannot only weed out unmeritorious litigation but also be the best remedy to deal with the scourge of adjournments. I have personally witnessed the levy of 4000 USD as costs by a Californian court upon an advocate (not client) for a simple adjournment-not that I am advocating such stringent measures in India.

My examples and my wish list can go on ad intinitum and ad nauseam. The main point is that we have to act and implement these ideas, partly or fully but urgently. We need to be activists and risk takers.

Palkhivala was so right when he said:

“The persistent tendency in India is to have too much government and too little administration; too many laws and too little justice; too many public servants and too little public service; too many controls and too little welfare.”

And one may add-“Too much talk and too little action.”

The problems of our legal system are awesome but not insurmountable. History will never judge those who tried and failed. History will certainly have harsh verdicts for those who failed to try. As was aptly said, “What matters is not the size of the dog in the fight; what matters is the size of the fight in the dog.”

6 See in this regard Salem Advocate Bar Amt. v. Umbn of India. (2005) 6 SCC 344, esp.

 Shortnotes A and B.

by (Dr.) Abhishek Singhvi

If one swallow does not make a summer and three 2003 Assembly victories do not yield a national victory in May 2004 for the BJP, then losing the battle in Gujarat and Himachal Pradesh does not change our certainty of winning the war in 2008-09. The current ambiance does not take long to change. Victories in Karnataka, Rajasthan, Madhya Pradesh, J&K – to name but a few – can make the same media and the same analysts root for the Congress. The historical, political and structural context of the States going to the polls in the next 18 months do not portend well for the present opposition. After the shenanigans and depths of immorality in Karnataka, the last rulers in that State face certain defeat.   The BJP is virtually non-existent in the North-East and Nagaland has provided the Congress a concrete opportunity to show the nasty and brutish side of a N-E regional party. The recent bye-election results in Madhya Pradesh reflect a clear trend against the incumbent rulers in the state. Cyclical anti-incumbency, the mis-governance of the Vasundhara Raje Government, her imperious style and the vertical division in her party in Rajasthan gives a clear indication of things to come. No doubt, the Delhi poll will be a keen fight but 10 years of Congress rule has created enormous, concrete, physical assets to show to the people of the Capital. J & K has no BJP presence to speak of even on a piggy-back basis.    These are only illustrative and not exhaustive examples.

This is not to suggest Congress complacency. The Congress has always been humble in victory and introspective in defeat.  The recent reverses are being investigated on a micro basis and focused and tailored remedial measures, depending on the social and political profile and the context of each state will definitely be taken.    Early declaration of the prospective candidates for a majority of the assembly seats, making strategic tie-ups preferably on a pre-poll basis, re-distributing the burden of state in-charges who may be over-burdened and so on are part of a larger, comprehensive package of reforms which would be considered in the near future.    It is important not to have knee jerk reactions or quick-fix solutions. Remedial panaceas have to be state specific and varied contextually from area to area.

The Congress has vital virtues conspicuously absent in the main opposition party.   We have an inclusive approach to democracy in the most comprehensive sense i.e. economic, political and social. The Congress’ rainbow of coalitions may occasionally be diverted or poached upon but it reflects the inclusive and consensual nature of the Congress’ approach as opposed to the intrinsically divisive and opportunist approach of the BJP.  At the party level, we have a supreme leader as a universal mascot, as opposed to the constant bickerings, internal-ego clashes and messy battles for supremacy which plague the BJP and are in the public domain.

Thirdly, at the governmental level, the persona of the Prime Minister complements that of the Congress President and provides a uniquely ideal division of responsibility between the government and the party in their respective domains. One has only to compare the overall image of previous PMOs with that of the incumbent to notice the significant differences.

Fourthly, the economic approach, although sometimes slow because of coalition compulsions, has not only achieved growth over 8.5 per cent but has always tried to enhance distributive equality and ensure a fair, humane and compassionate distribution of the cake.

Fifthly, the Congress has historically had a pan-Indian presence.   Although, the BJP has made some state-level inroads on that presence by riding piggy-back on regional parties, the Congress believes that that remains a transitory phenomenon.   Barring Karnataka – and we all know what happened there in a few months of BJP-JD(S) rule – the BJP remains an insignificant cipher everywhere south of the Aravalis.   It can hardly lay claim to be a truly pan Indian opposition party.

(Dr) Abhishek Singhvi
(MP; National Spokesperson, Congress; Former Addl Solicitor General, India.)

By  (Dr) Abhishek Singhvi

 ET, November 27, 2

 The Liberhan Report is yet another defining moment for the BJP. Despite all digressive diversions, the BJP and its so called Parivar cannot wish away its cold, hard print as a bad dream.  Even if the Report merely confirms and provides a legal basis for what the country as a whole  always knew—that the BJP had unleashed a blatantly communal campaign for purely political gain  to reach some respectable seat tally from its abysmal 1984 performance—the Report affixes a very obdurate black blot which decades of future whitewashing is unlikely to clear.

 Secondly, it exposes the BJP (including all elements of the Parivar and its entire senior leadership) as utterly hypocritical, double faced and fork tongued. The credibility of leaders like Advani is irretrievable. How can a PM aspirant even now claim that while that day was the saddest of his life, his life’s mission is to see a temple at that very spot? At least fringe BJP players like Katiyar and Uma Bharti (and a senior leader like Joshi) had the courage of their convictions to declare their true intentions, howsoever mala fide and unconstitutional. But Advani’s attempt to run with the hare and hunt with the hound has reduced him to a pitiable figure.

  Thirdly, the BJP is inexorably bound to be drawn into an ever more aggressive campaign of justification and repetition of its communal agenda. In this, it would be committing a cardinal error, much more so than of the early nineties when it experienced at least some short term gain. This is so because today’s India, with its new demographic profile and its ambitious global aspirations, will indubitably and unequivocally reject those who negate India’s diversities and those who create instability by “tod-phod ki  rajniti.” Although this is obvious, I doubt if the BJP wants to read this clear message which stares everyone in the face.

  Last but not the least, the Report, howsoever belatedly, imperfectly or controversially, charts the story of how crudely and unscrupulously one political party can pick up the issue of a site at Ayodhya which, despite a long pending dispute, had been consigned to the memory of history as India moved on, and then  use it to deliberately inflame religious passions purely for electoral gain without concern for the thousands of lives and vast amounts of property lost in the wake of its destructive trail. At the end of the day, the electorate needs to fundamentally rethink whether such parties with such stated agendas should at all be allowed to exist.

(The author is an MP, National Spokesperson, Congress and a jurist).