With only a year to go before the Lok Sabha elections, the new Law
Minister has his work cut out for him. On paper, Kapil Sibal is perhaps the United Progressive Alliance’s best man for the job. As
a lawyer, he understands legal technicalities; as an experienced hand, he also
understands the working of the government. There are several pressing reforms
that demand immediate action by the Law Ministry, most of which have
unfortunately been either completely ignored or lie unimplemented.
In part, this is attributable to the
frequent shuffling of Ministers that the Law Ministry has seen under the UPA
government in the last five years. Some blame must also be attributed to the
difficulty in getting the necessary political consensus for the more
contentious reforms. In the next one year, it would be wise for Mr. Sibal to
set modest, achievable goals; and focus on the most pressing reforms. Four key
areas of reform that require immediate attention are — appointment of judges; working of the judicial system; modernising key economic legislation and restoring the independence and dignity of the
law officers of the government.
Judicial Appointments Commission
The appointment of judges to the
Constitutional Courts is presently done by the collegium of judges of the High
Court and the Supreme Court. The controversies surrounding the proposed
appointment of Justice P.D. Dinakaran, and the impeachment of Justice Soumitra
Sen show that this system of appointment has surely Failed. Recent political consensus also appears
to be against the collegiate system of appointment of judges, and in favour of
it being replaced by a Judicial
Appointments Commission (JAC).
It would however be naïve to believe that
the mere setting up of a JAC, without anything more, can be the solution to the
present problems plaguing the appointment of judges. The Ministry must identify
transparent and well-defined criterion based on which the JAC would function
and exercise its powers. It is also important to note that the setting up of a
JAC cannot be done through legislation alone. The collegiate system of
appointment of judges was instituted by the judgments of the Supreme Court in
the three Judges cases; and to set up a JAC and in
effect reverse the holding in that decision, it is imperative to “remove the foundation or the basis” on which the judgment
was passed. Since the Judges Cases have rendered the word
“consultation” (with the judges) in Articles 124 and 217 of the Constitution to mean a virtual
“concurrence,” it would be essential to pass a constitutional amendment to
amend the text of those Articles, lest the validity of the JAC be open to
challenge on this ground. The UPA government does not have the numbers to pass
such an amendment by itself; and it would require a consensus of parties across
the political spectrum to do so.
Pendency of cases
The Indian judicial system is overworked,
understaffed and bursting at the seams. Pendency of cases in the High Courts
and the Supreme Court is at an all-time high. Many have argued that the
solution to this is to increase the number of judges — we have approximately 11 judges per million
persons, as opposed to the global
average of around 50 judges per million. However, the judge-population ratio is,
strictly speaking, irrelevant to understand the issue of pendency. What is
relevant is the judge-pendency ratio, the impact of which has sadly not been
examined in policy debates. More importantly, an empirical study conducted in
2010 (Kannan) revealed that the problem with the working of the judicial system
lies elsewhere. It concluded that (assuming no fresh cases are filed) it would
take approximately nine months to clear the entire backlog of cases in Tamil
Nadu. Most States in India had somewhat similar figures, and only a few needed
more than two to three years to clear their entire backlog. These numbers
demonstrate that the problem of pendency is not insurmountable, and the answers
to streamlining the working of the judicial system are not to be found in
resolving pendency by increasing the number of judges. They lie elsewhere.
National Litigation Policy
The trouble with the working of the
judiciary can be traced to the existing institutional structure. Most cases in
the courts are fought by or against the state or its agencies, and serious
efforts must be made to transform the government into an efficient and
responsible litigant. A well-drafted National Litigation Policy was mooted under the aegis of Veerappa Moily in 2010, but remains largely
unimplemented. Similarly, provisions for imposition of actual costs on
litigants would reduce frivolous law suits, and cut down on unnecessary
adjournments. The executive, the legislature and the judiciary need to work
together to implement these institutional changes, and the lead must be taken
by the Law Minister.
While the larger reforms of the legal
system are carried on, it would also be useful, as a more immediate measure, to improve the quality of justice delivery in high value
commercial cases, especially given the strong co-relation between foreign investment and a stable, predictable and efficient legal system. The Commercial Division of High Courts Bill appeared to be a step
in the right direction but suffered from serious drafting flaws and had to be
scrapped in December 2011 despite having been passed by the Lok Sabha. Salman
Khurshid, the then Law Minister who spearheaded this Bill, had promised a
revised version of the Bill, but it has remained in cold storage. It is hoped
that it will be taken up again.
There are many important economic laws
that require the immediate attention of the legislature. The proposed Companies Bill 2012 that seeks to replace
the Companies Act, 1956 is pending vote in the Rajya Sabha, having been passed
by the Lok Sabha. Key amendments to the Arbitration and Conciliation Act, 1996 which reduce judicial
intervention and streamline the process of alternative dispute resolution, have
not been passed, despite a consultation paper being prepared under the
stewardship of Mr. Moily. Similar amendments are required to further strengthen
the regulatory framework in the insurance and banking sectors — both of which
are presently governed by antiquated legislation.
The law officers of the government, the
Attorney General, the Solicitor General and the Additional Solicitor Generals,
do not merely serve their clients, but owe an important duty to the court and
perform critical constitutional functions. The Constitution in Article 76, in fact, enjoins the President to
appoint “a person who is
qualified to be appointed a Judge of the Supreme Court” to be the Attorney
General. In the recent past, several law officers appointed under the UPA
government have compromised the dignity of their office while the upright ones
have preferred to quit.
Institution Eroded
The involvement of two law officers in
the recent Coalgate controversy has tarnished the credibility of not just the
individuals in question, but of the offices they hold. The erosion of this
institution does not augur well for Indian democracy. It might be
useful to consider designating the JAC which is proposed to be instituted for
appointing judges to the Constitutional Courts, to also appoint the law
officers. This will not only insulate their offices from unnecessary political
pressures but also reduce any charge of the government’s management of
sensitive cases before the Constitutional Courts.
Mr. Sibal is an old hand with a hard road
ahead of him, and it is hoped that he will make the most of his position as Law
Minister. The confidence of the public in the justice delivery system has been
severely eroded, not just due to recent events but also due to the various
structural and institutional weaknesses that have crept into the present
system. H.M. Seervai said that “the Constitution confers power, but it does
not guarantee that the power could be wisely exercised.” Equally, it can be
said that the Constitution confers power but it gives no guarantee that it will
be worked by men of high character, capacity and integrity. If the Constitution
is to be successfully worked, an attempt must be made to improve the political
atmosphere. It is hoped that the new Law Minister will be up to the task that
is cut out for him.
(Anirudh Wadhwa is a
New Delhi-based lawyer)
No comments:
Post a Comment