Thursday, January 14, 2016

Judiciary and self-regulation

Among the many contributors to weak state capability and the difficulty of doing business in India, one of the least discussed is snowball litigation, whereby higher courts entertain appeals, often indiscriminately. This frustrates businesses and officials alike, encourages dubious appellants, and over-burdens the judiciary. 

The Article 136 of the Constitution empowers the Supreme Court to "grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India". Its sweeping nature, institutionalized in the form of Special Leave Petitions (SLPs), evidently means that it has to be exercised in cases involving a substantial question of law or a gross miscarriage of justice. But, as this Livemint article shows, this extraordinary jurisdiction appears to have been reduced to a regular appellate one - 34,500 SLPs were filed in 2014, of which 43% were admitted, in a Supreme Court with case-load of just over 60,000! 

A stark example of courts' tolerance for snowball litigation comes from the fate of Tribunals. A few years back, Tribunals were initiated as a progressive alternative redressal mechanism, a step to minimize litigation and reduce the case load on the higher judiciary. Accordingly, numerous Tribunals were established as part of State and central legislations. But unfortunately, instead of lowering the caseload, Tribunals have become another institutional layer of litigation, since the losing party invariably ends up going on appeal before the courts. The courts have tended to entertain even petitions ostensibly on procedural issues on cases being heard by the Tribunal and go beyond points of law in appeals on Tribunal decisions. If these trends persist, it is only a matter of time before any alternative dispute redressal mechanism, including those enshrined in the proposed Arbitration and Conciliation Act, gets reduced to being another layer of judicial bureaucracy. 

In this context, the Supreme Court's refusal to prescribe tighter norms for accepting Special Leave Petitions (SLPs), on the ground that any effort to limit the powers under Article 136 would be tantamount to disturbing the "basic features" of the Constitution, is disturbing. It is today well known that the acceptance rates of SLPs vary widely across judges and their individual discretion is arguably the critical factor in many cases. This naturally erodes its credibility and generates perverse incentives. Therefore, far from diluting its importance, rigorous due-diligence, as outlined in a clearer set of internal guidelines which limit the range of individual discretion, would go a long way towards strengthening the Supreme Court's power under Article 136. 

It is a sign of mature institutions that they acknowledge their failings and put in place mechanisms to rectify them when they come to notice. In a country where such institutional maturity is unfortunately very scarce, it is only appropriate that the highest court of the country shows the way with self-regulation.


Pratik Datta said...

You are right Gulzar. But I think good intention is there on the part of the judges, but there is an acute lack of understanding of what fixes the judiciary needs. There are a couple of reasons:

1. Any court/tribunal has judicial and administrative functions. In India, the focus is too much of the judicial function. No serious thought is given about administration. Some ad hoc reforms are done (like the court managers scheme) without doing proper studies before hand. Hence, they fail to improve the situation.

2. In India, CJI is the administrative head of SC and effectively has a huge say in improving general court administration. But the tenure is too short for a person with hardly much management experience to grasp the problems and fix them.

3. In most other common law jurisdictions, there are separate administrative bodies which look after court administration. Like in UK there is HMCTS, in US there is Administrative office of US court; in Australia there is Court Service Victoria and in Canada there is Court Administration Service. These are full fledged corporation like bodies with a CEO and board to provide administrative support services. In India, there is nothing comparable. Each court and tribunal has its own registry doing the administrative function. So we lose out on economies of scale as well as specialisation.

4. This leads to lack of structured data collection. Consequently, there no concrete data on delay and pendency.

5. Since there is hardly any data, most literature (hardly enough though!) is opinionated and not based on empirical studies.

6. Also, judges and bureaucrats both understand the problem and genuinely want to improve. Senior judges and bureaucrats must consider sitting face to face and discussing these issues candidly. The problem is not very difficult to solve. There are lots of competent people in India who are passionate about court reforms and have lots of constructive ideas.

I had written on some of these issues in the context of bankruptcy reforms here:

Unknown said...

This post cannot have been more timely. Today, I read that the Supreme Court forbade the government from selling its remaining stake in Hindustan Zinc. I really cannot believe that any court can sell a legitimate owner from disposing off his asset. Even workers have no say in this. The Right to dispose of the property is a fundamental right.

The statistics you had cited on SLP acceptance is astounding. Also, I would like to know how the Court decides on the priority of cases to be heard. What is the criteria?

I think the anarchy let loose by the Court has to be confronted.