Alfred Romann investigates the functioning of the judicial system and speaks to Ashok Desai, Soli Sorabjee and others about improvements that have been made and the challenges that lie ahead
The physical structure of the Supreme Court of India exemplifies the pomp that goes with the country’s top judicial institution. But the attractive domed building flanked by well-kept gardens belies the reality that India’s judiciary is struggling to keep pace with modern demands.
Walking through the dusty hallways of India’s district courts, high courts and even the Supreme Court, one could easily imagine that Franz Kafka used these chambers as inspiration for his stories about the inaccessibility of justice. With an estimated 27 million cases pending, they are some of the most backlogged courts in the world. According to some estimates it would take half a century to clear the backlog even if no new cases were filed.
Judges are overworked. Cases routinely drag on for years, decades and even generations. When a decision is reached, enforcing it can be difficult and appeals can stretch any case into a legal limbo plagued by deferments which are frequently requested and generally granted.
“The pressure on the courts has increased immensely for two reasons,” says Ashok Desai, a former attorney general of India and one of the country’s top litigators. “One, commercial litigation has increased. Second, people are more conscious of their rights and therefore you have more and more constitutional litigation. Public interest litigation has increased exponentially.”
Notwithstanding these challenges, tangible improvements are being made. There are now options that provide plaintiffs with almost immediate relief (or at least guarantee the status quo) and the government is increasingly taking steps to speed up the passage of justice: New judges have been appointed, infrastructure has been improved, more courts have been built and specialized tribunals have been established.
“Sometimes other systems in this country don’t work as well as the courts do. Sometimes the courts are the saviour,” says veteran litigator Pravin Anand, who heads up Anand and Anand, one of India’s premier intellectual property law firms.
The legal elite
The elite practitioners of India’s legal establishment are the senior counsel, who limit their practices to arguing cases before the courts. The Advocates Act recognizes senior counsel as lawyers who can appear in court and argue cases, but not file a power of attorney or draft pleadings.
Working alone, these senior litigators are required by law to give up their partners in private practice. “They have to be at a different level of practice,” Desai tells India Business Law Journal.
Senior counsel don’t deal with clients directly, but are generally hired by law firms who brief them on the client’s behalf. “Senior lawyers tend to operate like lone eagles,” Desai adds. “I am briefed by a lawyer who will do all the preparatory work. That is why I can handle many more cases.”
“Senior counsel are very eminent lawyers and have a deep and all-pervasive knowledge of the law and judgments,” says Lalit Bhasin, the president of the Society of Indian Law Firms. “They have acquired good court craft. They can make the presentation of a case very effective.”
The best known senior counsel – lawyers like Fali Nariman, Soli Sorabjee and Ashok Desai to name a few – can raise the profile of any case with their presence and reputation. But they don’t come cheap. Fees range from Rs100,000 to Rs300,000 (US$2,300 to US$7,000) for an appearance in a preliminary hearing. There are additional charges for conferences and meetings as well as for preparation time. When a case eventually comes up for final disposal, fees can soar to Rs600,000 (US$14,000) per hearing.
When India Business Law Journal met Ashok Desai in May, he had spent the morning in the Supreme Court arguing for a continuance in a case. Afterwards he made the short journey to Delhi High Court to argue a motion in an international case involving an Indonesian conglomerate and India’s Bharat Sanchar Nigam.
A little later, Desai was to be found in the small, understated courtroom of India’s Company Law Board, a quasi-judicial body that deals strictly with matters relating to India’s Company Law. Here he was arguing a case involving a large Indian conglomerate. His argument was a small component of the wider case, but Desai was convinced that progress would be faster at the Company Law Board than it would be before the regular courts.
The process moved forward swiftly. Indeed, speed has become a hallmark of the Company Law Board, one of a handful of specialist tribunals established to reduce the workload of the overburdened conventional courts.
“[This] is an excellent body because the arguments are much shorter [and] the judge knows what he is talking about,” says Desai, who believes the establishment of more tribunals could contribute significantly to improving the efficiency of India’s legal system.
In contrast, India’s regular courts are not specialized. Judges handle a variety of cases from real estate disputes and patent infringements through to divorces. The resulting lack of knowledge has been cited by many observers as a factor that can hinder the effective settlement of cases, particularly those of a complex or highly technical nature.
“There should be a tax bench, or an intellectual property bench,” argues Desai. “At least some judges should specialize in some areas.”
In spite of the introduction of new tribunals like the Company Law Board, most foreign companies doing business in India regard the domestic court system as a last resort. The in-house counsel of a multinational telecoms company describes the process as “painful, frustrating and requiring a high degree of patience”. As a result, it is common for foreign investors to include clauses in their contracts specifying that any disputes will be resolved through arbitrations in foreign jurisdictions.
Such trepidation is not unfounded. While India’s higher courts are often paralysed by the number of outstanding cases before them, the lower courts can appear utterly chaotic.
District courts handle preliminary hearings on virtually every small commercial dispute as well as criminal cases, divorces, evictions, individual taxes and family affairs. To the uninitiated, these courtrooms are a sight to behold: ramshackle structures furnished with old boxes, rusting cabinets and ceiling fans that don’t work. The lack of administrative capacity is evidenced by clerks seated on the floor handing out files and calling cases.
“There is a lot of pressure on these courts, with the result that the court is dealing with two or three matters at a time at the district level,” says Bhasin.
Delhi has four district courts and the government is planning to build five more, with the aim of having one court for each of the city’s nine districts. The Tis Hazari court, the oldest and largest in Delhi, sits in a vast compound near the famous Red Fort. Outside the building, low-rent lawyers and notaries public practise their profession with old-fashioned typewriters. The absence of technology and even electricity is startling.
“The pressure is mainly on the courts because of the lack of infrastructure,” says Bhasin. “The district courts don’t have the luxury of air conditioning. For them it is sometimes a matter of survival, working in extreme heat and extreme cold.”
In stark contrast to the district courts, the High Court of Delhi is an imposing building on the prestigious Sher Shah Road. There are some 45 courtrooms spread between two blocks, another large building for lawyers’ chambers and a cafeteria.
Security is understandably tight. Visitors must be signed in by a lawyer and are screened with metal detectors. Mobile phones are prohibited, but lawyers – who are not searched – often carry them in for their clients. Once inside, people chat away on their handsets.
The atmosphere is one of organized chaos. Hundreds of lawyers fill the corridors, most with small battalions of juniors to keep track of which cases are coming up in each courtroom. Pravin Anand spends a lot of his time at this high court, sometimes flanked by a dozen lawyers from his firm. On a typical day, he may handle 20 cases or more.
Some cases take years to resolve but there are ways to use the system quickly and efficiently. “If you go to a good attorney, you can have protection within 24 hours,” says Justice Manmohan Singh, a high court judge appointed to the bench earlier this year. “You can file a criminal complaint, you can take civil action, you can ask for the local commissioner, the records can be sealed within two days, no problem at all,” he adds.
Obtaining an injunction can be a simple matter that takes a few days. A court order to maintain the status quo in a dispute or even to stop an IP infringement, can be attained in as little as 48 hours. As far as the Delhi High Court is concerned, if a lawyer files an application before 11am, a judge will deal with it the next day.
India’s courts have received their fair share of international criticism, but Soli Sorabjee, a former attorney general and one of India’s most sought-after senior counsel, believes that many of these criticisms are overstated. Corruption, for example, may be less widespread than many believe, especially at the high courts and Supreme Court.
“Corruption is not a factor,” Sorabjee tells India Business Law Journal. “There may be occasional cases but they are highly exaggerated … The main problem is the arbitrariness of the system.”
Sorabjee believes that India’s courts now operate significantly faster than they once did, and offer better relief. But while certain matters can be resolved in less than a year, or even just a few months, the majority of cases take much longer.
Eviction suits are a pertinent example. “It takes no less than 10 years for a person to recover his property,” laments Sorabjee as he describes a case in which a landlord who had filed a suit to recover a property died before the suit was over.
Sorabjee attributes some of these delays to the actions of certain litigators, who devise ways of stretching cases rather than pushing for quick settlements.
“Some lawyers are known as adjournment counsel,” he says, adding that it’s the responsibility of judges to stamp out the practice. “Judges must be strict. That’s the way to stop it … [They] must realize they are not running a popularity contest.”
While Sorabjee believes judges should exert greater authority to prevent litigators from creating unnecessary delays, he also worries that not all of them are up to the job.
“The appointment of judges in some courts is very poor,” he says. “Merit is not always the main factor. Mainly it is a caste factor and a communal factor.”
Even a victory in court does not necessarily mark the end of a case. Lawyers are quick to file appeals, and the courts are reluctant to enforce awards until all appeals have been settled.
“The whole process starts all over again,” says Sorabjee.
A potential solution, suggests Desai, is to use cost awards to deter frivolous litigation and unfounded appeals.
“You don’t get 2% of your actual money spent on costs, even if you win. The result of this is that people insist on taking up frivolous points,” he says, explaining that the lack of cost awards and low rates of interest actually delay litigation for defendants.
In foreign courts, lawyers often avoid arguing points that have been settled in previous cases because judges are likely to penalize them with heavy cost awards. At the same time, foreign courts tend to award interest payments on debts at current rates. Indian courts, by comparison, award interest at minimal rates, if at all.
Often, the beneficiaries of the slow progress and frequent appeals are not the conflicting parties but their lawyers. Senior counsel charge for every appearance: the more appearances, the more money. But Desai says most of his colleagues have much more work than they can handle, and that there is no motivation for them to extend cases for personal financial gain.
Using traffic as an analogy, he places the blame for the delays squarely on the legal infrastructure: If a road is built to handle a certain number of cars and, suddenly, traffic multiplies four times, everything slows down, he says.
Getting things moving
In the case of India’s courts, however, the heavy traffic shows no sign of abating. New infrastructure developments will struggle to keep pace with growing demand and the challenge for the future is to keep more disputes out of the courts altogether.
Specialist tribunals such as the Company Law Board have already proved successful in this regard, as has a new system of local courts called Lok Adalats, or peoples’ courts. These have been particularly effective at dealing with disputes in communities, insurance claims and property cases.
“Lok Adalats presided over by a good judge, a retired high court judge, can bring the parties together,” says Sorabjee. “Of course, if you don’t agree with the judgments you can bring the case back to court.”
Arbitration and mediation could also be used to a much greater extent. But while other countries have developed effective arbitration systems populated with trained arbitrators, India has had no such luck.
Part of the problem is the lawyers, says Sorabjee. They constantly ask for deferments, while the arbitrators, usually retired judges, are quick to grant them to clear up their daily dockets. “The whole idea of arbitration is that it is a quick, expeditious and inexpensive remedy. Those three requirements of arbitration have not been realized in India in any case,” he adds.
“We don’t have a system of settling a matter before it goes to court,” laments Justice Singh. “We don’t make serious efforts to resolve the matter … We simply say, ‘let’s go to court’.”