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Journalism of Courage
THE vice president of the Chinese Supreme Court recently visited India. Law Minister Arun Jaitley enthusiastically told him about India’s efforts to speed up the courts. And then asked the Chinese visitor how long their courts took to decide cases. In a rather apologetic tone, the Chinese visitor replied that their courts have slowed down: earlier they took two weeks and now they take four to six weeks. Jaitley didn’t know where to look.
The Law Minister narrated this incident successively in the two Houses of Parliament when he was piloting a radical Bill in May to amend the century-old Civil Procedure Code (CPC). Radical — only by Indian standards. Unlike the Chinese, we cannot yet think in terms of weeks. The highest ambition of Jaitley’s legislation is to make the courts decide civil cases within a year.
That is in itself a big step forward from the existing situation in which high courts take 15-20 years and lower courts take three to five years. The CPC Amendment Act 2002 fixes a time limit for every stage of the litigation, from the filing of the suit to the delivery of the judgment (see flow chart).
It also contains innovations like the courts being allowed to use private courier services to serve summons. This is the first time private sector is being involved in the process of litigation.
The legislation has the potential of changing the legal landscape of the country. Take for instance a little known forum called Debt Recovery Tribunals (DRTs) spread around the country. The total value of claims pending before them are Rs 1.1 lakh crore — about a quarter of India’s Budget.
Banks and financial institutions have filed those claims over the years to redeem their non-performing assets, namely, loans not repaid by companies and individuals. Imagine the difference the DRTs alone could have made to the nation’s economy if only the CPC, which governs their functioning, had not been so lax. In the name of fairness, loan defaulters were permitted to avail themselves of all sorts of loopholes in the CPC to keep matters pending endlessly.
But the potential beneficiaries of the reformed CPC are of course not just the banks and financial institutions. About a third of the 2.5 crore cases pending in the country involve civil litigation, affecting people of all economic strata.
This is in fact the second time in two years that Parliament passed such an ambitious enactment to overhaul the CPC. Like with any major reform, the CPC Act 1999 met with resistance from vested interests, which in this case were lawyers themselves. And they adopted the politically correct posture of claiming that their opposition to the enactment was not out of any self-interest but for the welfare of the poor.
On February 24, 2000, the agitating lawyers even had a violent confrontation with the police on Parliament Street leading to a lathicharge. Ultimately, the then law minister, Ram Jethmalani desisted from bringing the 1999 law into force.
Thankfully, that debacle did not deter his successor Arun Jaitley from having another attempt at amending the law. Jaitley introduced a fresh CPC amendment Bill in 2000 taking into account suggestions from bar representatives, political parties and the Law Commission. Subsequently, he incorporated some more changes in the Bill at the instance of a parliamentary standing committee. Thus, the Bill that was passed afresh by the Rajya Sabha and Lok Sabha on May 8 and 13 this year was a result of consensus and compromise.
Jaitley managed to retain the essentials of the 1999 Act and the latest enactment is in some respects even an improvement. How did he still win over the lawyer community? ‘‘They could see that we made a sincere effort to incorporate whatever was reasonable and desirable,’’ said Jaitley, expressing the hope that the lawyers and judges would put the new CPC into practice.
The most time consuming part of any litigation is the stage of recording evidence. Even if a case requires just five hearings to record the evidence, the court, because of the paucity of time, staggers the dates of the case over months or even years. The 2002 Act seeks to avoid such delays by making recording of evidence a delegable function.
The judge has been given the discretion to delegate the function of recording evidence to a commissioner, normally a member of the bar. Though the existing law also provides for a commissioner, the court could resort to that option only in exceptional cases, that too at the instance of the litigant. And since the whole idea is to expedite the proceedings, it stipulates that the commissioner should submit the record of evidence to the court within 60 days.
The Act will come into force the day the Government chooses to notify it. Given its chequered history, Jaitley may notify it any day now while the courts are still on vacation. It really remains to be seen whether the judges and lawyers will snap out of their old cynical ways and abide by the new CPC in letter and spirit. And of course the executive and the judiciary need to act in concert and adopt many more legal reforms before the litigants begin to feel the difference.
