BackWhy legal reform remains an afterthought
Reform policies are largely shaped by economists who do not possess institutional appreciation, and so legal reform rarely features in any discussion
PremiumAmong the films to watch in 2021 is Kaagaz, a biographical drama directed by Satish Kaushik that documents the tribulations of a man called Lal Bihari. This gentleman was declared dead in 1975, struggled to prove that he was alive (though deceased in the records) and was finally declared alive in 1994.
Umakant Sharma warrants a film too. This postman was suspended in 1984 (because of a discrepancy of ₹57.60 in the records he submitted) and was declared innocent in 2013. Then, in Doshipura (Varanasi) a dispute between Shia and Sunni Muslims over two acres of land has been going on since 1878.
There are criminal cases pending for more than three decades. As a back-of-the-envelope number, including all forums, the backlog is 35 million cases. Let’s say there are at least two parties to a dispute (this is obvious for civil cases, though not necessarily true of criminal cases). However, since a civil case will often have more than two parties, one can safely say at least 70 million individuals are litigating today. With 250 million households, in 28% of India’s households, an individual spends time in court.
The strange thing is that you can think of the movie Damini which was made famous by Sunny Deol’s tarikh pe tarikh (date after legal date) dialogue. But there is also the judge’s remark in Jolly LLB-2 that citizens still approach courts in hope of justice. Law has that Janus-like attribute.
In ancient Indian texts, the primary responsibility of kings was defence of the realm, protection of the virtuous, punishment of the wicked and a speedy system for dispensing justice. Plato, or more contemporary social contract theory, endorses this. If three organs of state (legislature, executive, judiciary) cannot ensure rule of law, the state has abdicated its responsibility.
One doesn’t need the World Bank’s governance indicators or doing business indicators to underline India doesn’t do that well. In 1993, using cross-country evidence, an academic paper argued reform of India’s legal system would lead to incremental GDP growth of 1.5%. Obtaining such a precise number is dubious.
But the fact is the unsatisfactory legal system should have been revamped even if 1991 economic reforms hadn’t occurred. The reforms provided an additional trigger. Whatever be the definition of “reforms", they involve reliance on markets, as opposed to state control. Markets are conceptual constructs used by economists. They aren’t APMC mandis where buyers and sellers physically congregate to transact. Every market functions in an institutional context and an important ingredient in that institutional context is the legal system.
Yet, probably because reform policies and debates are largely shaped by economists who do not possess institutional appreciation, legal reform rarely features in any discussion. Hence, post-1991, laws primarily changed because of World Trade Organization (WTO) obligations (such as intellectual property) or because competition was introduced (infrastructure, financial sector), not necessarily because it was explicitly on the agenda.
THE ROUTE MAP
There are slices in law and legal reform. First, laws are often statutes. Under the Constitution, both Union and state governments can legislate. As a citizen, duty-bound to obey the law, and ignorance of the law is no excuse. Surely it should be one’s right to know what existing statutes are.
For the Union government, courtesy India Code, that’s available. For almost all state governments, that information isn’t available. Major statutes are available, certainly in printed form. But I meant all statutes, not only major ones. (I chaired a two-member task force that examined Rajasthan’s laws, set up by the then chief minister. For some statutes, we discovered the government or assembly didn’t possess the texts. We had to get copies from the government printing press.)
Second, laws are often not statutes, but subordinate legislation in the form of rules, regulations, notifications, orders, circulars. If statutes aren’t available, it follows that subordinate legislation isn’t available either, except for India Code. In the case of states, except those that are part of the department for promotion of industry and internal trade’s (DIPP’s) ease of doing business exercise. Therefore, “law" is what a government official proclaims it to be. Since reforms are about transparency and reduction in discretion, this is undesirable. To impart some optimism, an exercise to incorporate state laws into Indian Code has started, but it’s early days.
Third, old laws become dysfunctional. India doesn’t have a system of desuetude. In plain language, they aren’t closed-ended, with natural death after a prescribed time period. They are open-ended and have to be specifically identified for repeal. Through successive Acts, the Union government has repealed around 1,600 old statutes.
Aren’t old statutes harmless? Not really, they can be used for harassment. For example, Sarais Act of 1867/1887 (now repealed) could be used to harass hotels. However, after the Constitution was enacted in 1950, old statutes on state subjects have to be repealed by states. So, if we wonder why the oldest extant statute, Bengal Districts Act of 1836, still exists, that’s because repeal has to be done by West Bengal.
Fourth, outright repeal is easy. More commonly, an entire statute cannot be repealed, but a section has become dysfunctional. That may be Section 377 of Indian Penal Code, Section 69 of Transfer of Property Act, or the relevant section of East Punjab Agricultural Pests, Diseases and Noxious Weeds Act (1949), applicable to Delhi, which requires locust invasions to be announced through beating of drums and musters of able-bodied male citizens to fight them.
This requires systemic scrutiny of statutes. Ideally, that should be done by the Law Commission, but recent reports of the Law Commission have been infrequent and ad hoc, not systematic. Kerala and Rajasthan are the only states I can think of that have done such systematic exercises.
Fifth, while identifying old and dysfunctional sections, one can rationalize and harmonize. Statutes, in the same area, have been enacted at different points in time, with varying definitions. This leads to alternative judicial interpretations, causing further confusion in case law.
Factor markets are a prime example of this. For instance, at the Union government level, there were roughly 54 statutes, directly or indirectly dealing with labour. Those under administrative control of the labour ministry have now been unified into four codes. When statutes are unified, subordinate legislation will automatically be unified. When one reads a TeamLease report on the large number of regulatory clearances required at Union or state government level, one should realize bulk of these concern labour.
For Rajasthan, after harmonization (and some repeal), we were able to reduce the number of statutes from 900 to 250 (that figure of 900 gives us a rough idea of how many statutes there might be at the state level). Most of those 900 statutes were on land ownership, tenancy and land revenue. Across states, the next frontier for a rationalization exercise remains that.
Sixth, to state the obvious, enacted statutes often reflect a mindset of state control. Therefore, a proper revamp of legislation requires us to take a position on what the government should do and should not do. To continue with the Rajasthan example, should the government control boating, as it does through Regulation of Boating Act (1956)? Or, to mention more topical legislation, the Essential Commodities Act of 1955. What is the difference between control and regulation? Often a statute is in the name of regulation, but actually amounts to control.
Therefore, seventh, introduce regulatory legislation where none exists. And eighth, an important point often ignored, ensure that there is unambiguity in drafting, so that litigation is avoided. In passing, the plain English movement has left both law and judgements untouched.
Finally, to return to the examples I mentioned initially, a legal system is only as good as its enforcement, that is, speed of dispute resolution. If it takes decades, the system isn’t credible, to punish the wicked or protect the virtuous.
The number of cases pending for more than 10 years is 1,200 for the Supreme Court, around 780,000 for high courts and just over 2 million for lower courts.
Several committees have told us what to do. The earliest government committee to examine the problem of pendency and arrears was the Rankin Committee (1924). The most recent was the Malimath Committee (2000). Now it is time to reform.
THE REFORM
One can detect at least four strands in proposed reforms. First, there is the question of judicial strength, though the number and skill sets of non-judicial staff are equally important. This is a supply-side solution that is the most commonly cited reason for court congestion and delays. However, this is also linked to vacancies and the judicial appointment and promotion process, as is judicial workforce planning.
Second, there is a set of reforms linked to improving judicial efficiency and court productivity, through education/training, better court administration in non-judicial functions and improved case and case-flow management, facilitated by infrastructure improvements. This too is a supply-side solution. Third, as a sub-strand to number two, information and communication technology can be used to enhance productivity. Fourth, demand for adjudication can be reduced through alternative channels of dispute resolution (mediation, conciliation, arbitration) and reducing the government’s contribution in civil litigation.
Supply, demand and productivity—these are the bare facts when you come down to brass tacks. All too often, when one talks to judges or reads committee reports authored by judges, the emphasis is only on the first and the others are rarely mentioned. In other words, more courts, more judges, more court staff, better infrastructure, better housing, better cars, more money, financial autonomy for the judiciary.
Without evidence that the judiciary is seeking to reduce pendency, these arguments won’t have many takers outside the judiciary. Many procedural improvements can easily be done. Productivity enhancement is about handling cases more efficiently, that is, case-flow management. When the Code of Civil Procedure was amended in 2001 and 2002, we were told that, henceforth, the average civil case would be concluded within two years.
If nothing of the sort has happened, that’s because of the Supreme Court (2005) in the Salem Advocates Bar Association versus Union of India case. But this judgement also led to the eventual drafting of model case-flow management rules. Though these were draft rules and adoption decision was left to high courts, this is an eminently sensible idea.
Evidently, not all high courts thought so. A collation by Vidhi Centre for Legal Policy shows that. This is an example of that reluctance to enhance productivity, not to speak of larger issues like curbing appeals. Experiments like lok adalats, fast-track courts, family courts, mobile courts, gram nyayalayas, people’s courts and women’s courts have also had sporadic success because of that reluctance.
Finally, one cannot forget police reform, critically linked to reform of the criminal justice system.
Bibek Debroy is chairman, Economic Advisory Council to the Prime Minister
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