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A public interest litigation to be imagined without contempt

By Somasekhar Sundaresan
July 15, 2013 20:03 IST
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The justice delivery system is struggling to cope, creaking at the joints and bursting at the seams. Indian courts have to deal with about 30 million cases with a judicial strength of just about 19,000 judges. With a national population of 1.2 billion people, we have about 16 judges for every million

Picture an arm of the Indian State that is charged by law to provide essential services to the public. Imagine the service delivery being really slow and dilapidated. So broken that it is comparable with a government pharma company delivering medicine to a household a generation or two after the patient has died. Imagine whispered allegations of lack of transparency, nepotism and corruption being levelled about some sections of this institution.

To help benchmark how bad things are, let’s say India ranks second from the bottom in a listing of all similarly-placed service providers across the world.   Also imagine the Indian State having to pay damages for an inordinate delay (close to a decade) in even starting to provide the services it is meant to.

Now picture a public interest litigation asking a court to set this institution right. Chances are, the judges would pass serious strictures. It is likely that the court would appoint a retired judge to monitor how the service delivery is improved and file reports at frequent intervals. It is highly possible that the dependence on other arms of the State for funding, staffing, and administration may invite a rebuke or two, calling it a “caged parrot”. Equally possible is the prospect of the chief executive of the institution being summoned to court and being told that he would have to make good the damages incurred by the exchequer because the organisation did not perform its job.

Here’s the bad news.  Such an institution actually exists.  The good news (for the institution): it is not very likely that courts would render a very harsh treatment in this imaginary PIL. The institution in question is the very justice delivery system that Indian courts themselves administer. 

The justice delivery system is struggling to cope, creaking at the joints and bursting at the seams. Statistics published by the national court management system, an initiative of the Supreme Court to review justice delivery in India, record that Indian courts have to deal with about 3 crore (30 million) cases with a judicial strength of just about 19,000 judges. With a national population of 120 crore (1.2 billion people), we have about 16 judges for every ten lakh (one million) people. The first ever ruling against India in a bilateral investment protection treaty inflicting damages on the exchequer arose because one high court could not hear a challenge against an international arbitration award for nine years, the proceedings to enforce the award in another high court was stayed, and proceedings in the Supreme Court to resolve the conflict did not get considered for four and half years.  It is eminently possible that a civil suit you institute to resolve a dispute with your neighbour would likely be resolved when your respective grandchildren attain your age.  Sadly, it is also true that judicial appointments are not transparent at all, and lead to speculation that have broken out of the realm of being whispers -- only last week, the chief justice of the Gujarat high court is reported to have alleged that he was sidelined for elevation to the Supreme Court because he had opposed the appointment of the sister of the Chief Justice of India as a high court judge. 

The provision of justice delivery services by courts is a core sovereign function.  Various attempts to improvise and innovate have indeed been made, but they end up again at the mercy of this very system. Laws enabling arbitration have been interpreted and re-moulded beyond recognition -- indeed, the bilateral investment treaty claim that India pathetically lost was a case of international arbitration.  A new law to create a “commercial division” in high courts to cut out one layer of trial, and to directly start at the high court for disputes of Rs 5 crore and above, is simply not getting passed by Parliament. 

Courts have been administratively non-innovative in charging for their services. To give a stark example: a court hearing and resolving Vodafone’s Rs 11,000-crore tax dispute would have earned less than Rs 1,000 for such heavy work. Of course, every time a problem is highlighted, a new regulator and a new appellate tribunal are conceptualised, ousting the jurisdiction of ordinary civil courts -- the latest is a move to set up a dispute resolution forum exclusively to deal with public-private disputes in the infrastructure space. The objective may indeed be laudable, but getting people to man the regulators and appellate tribunals remains a challenge. 

The securities appellate tribunal, for instance, a stellar tribunal that has mostly delivered rulings on appeals within a few months, has been without a full strength for over two years now. Even if the tribunal gives its rulings within months, once an appeal from there is accepted for hearing by the Supreme Court, the time frame for final hearings to even commence shifts to anywhere from two years to ten years. 

Naturally, human tendency leads many judges to dispose of as many cases as possible in as short a time as possible to do their bit to salve their conscience and address the beaten-to-death cliché of “justice delayed being justice denied”. 

According to NCMS, in 2011, over two crore cases were disposed of -- every judge, on an average, disposing of about 1,200 cases in twelve months -- a hundred cases in a month i.e. three cases a day, assuming she worked without a single day off.  The impact of such zealous work is marginal.  Pendency marginally came down from 3.20 crore cases to 3.136 crore cases.  Since the conduct of trade, commerce and business is dynamic, two crore new cases were filed.

Undue haste as a solution is a problem worse than the one sought to be solved.  Bad jurisprudence complicates life for those who are not in dispute since they have re-arrange their affairs to stay compliant with newly-interpreted law. Not for nothing does the counter-cliché equally hold good: justice hurried is justice buried.  If only rebukes and strictures could solve problems of governance, there may indeed have been a successful PIL about this subject.

The author is a partner of JSA, Advocates & Solicitors.  The views expressed herein are his own.

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Somasekhar Sundaresan
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