Modernizing the Legal and Judicial Institutions in India
By Jay Chauhan, Deputy Judge and Lawyer
The speech was delivered before an audience of about 160 Lawyers and about 10 Judges in Ahmedabad, which is the legal centre of Gujarat in India on 8 February 2007, and also to an audience of Law Students and faculty of law of the University of Punjab on 14 February 2007 in Chandigarh which is legal capital of state of Haryana, India.
India is moving fast forward to the 21st century particularly in the economic development and is integrating in the global economy. To integrate further and become more fully accepted as a developed country, India must match the legal and judicial institutions and bring them up to the world standards.
Common Law System
India should be congratulated for adopting the common law system which was introduced by the British and continued in India after independence. India has accepted the principles of democracy and rule of law and the trial system since 1946 and is evolving these institutions in the cultural context of India. The common law system works along with the personal law which was present in India prior to the arrival of the English and continues as the Hindu law and Muslim law which applies to the individuals based on their religious background.
No legal system in any jurisdiction is perfect and each needs improvement on an ongoing basis. There are a number of improvements which can be identified which would substantially help to improve the quality of justice in India, the most important one being the speeding up of the judicial decision making process. Currently, the adjournments and delays are excessive and the documents of the courts carry up to 300 matters per day for the judge making it impossible for a judge to render decision on each one. Delays result in not permitting a timely resolution of the problem from the plaintiff’s perspective and in the business environment results in delaying development and at the personal level reduces the ability of the individual to seek his remedy and his rights. It also encourages self help remedies of the citizen as in Landlord and Tenant cases.
Lawyers, Inter Jurisdictional Mobility
India is a country with about 28 states and about the same number of languages but with one Supreme Court which hears cases in English, it works as one jurisdiction. This is a remarkable achievement when you compare it with the European Union which is working with similar language and geographic problems.
Each state in India has its own language and legal capital. The lawyers called to the bar in one state is permitted to practice in other states. This mobility is very helpful in creating a common system and standards. In each local jurisdiction one can use the local language or English. Hindi is commonly used in the northern states.
This full mobility of lawyers is still currently not possible in Canada or in Europe. In Canada there are two main languages, English and French and the province of Quebec uses French and the rest of Canada uses English. Even in the English speaking provinces there is not full mobility yet. Measures are being taken to minimize the impediments to mobility.
Cohesive Legal Profession
The lawyers in India have a very strong bond of the profession. Bar Associations are strong bodies and members protect each other and support each other. Providing free counselling or mentoring to new lawyers is seen as a duty by the senior lawyers. There is less emphasis on fees when lawyers refer files to each other. Such cohesion enables the profession to develop and move forward together. On the other hand when the profession over protects its members it diminishes the ability of the profession to weed out or discipline the wrongdoers.
Negotiating with Opposite Party’s Lawyer
Presently, in India it is difficult for a lawyer doing a case to be seen by his client with the opposing counsel outside the court room because the client would perceive it to be compromising the interest of his client. The profession has not created an image of integrity where lawyer can be seen with the other counsel to settle the case without compromising the client’s interest. The only place where the lawyer in India can be seen to deal with the matter is in the court room. This leaves little room for the lawyer to find a suitable compromise in settling a case and this prolongs the cost and time for finding other resolution of the matter. There is need to explore other methods of solving the problem such as Alternative Dispute Resolution where lawyers on the opposite sides can sit with each other and resolves cases and reduce the cases reaching the court.
Settlement before trial
About 80% of the cases are settled before reaching trial in Canada, in part because the lawyers are able to assess each other’s positions and find a resolution. The other reason for settlement is the extremely high cost of doing a trial in Canada. The settlement does expedite the final resolution of the matter and saves costs to all parties. In India a much smaller proportion of the cases are settled before the trial. The indigenous Lok Adalat and Panchayat Systems which are present in India for a long time are being revived to helping to divert the cases away from the judicial system and resolve them.
Lawyers in India usually work with a particular litigation for which a block fee is quoted regardless of when the matter is settled. If the system of fees is made more flexible and more based on time it would help the lawyers aim at the resolution of the matter.
It is very helpful to have alternative means of resolving cases without taking a case to court such as mediation, arbitration and negotiations. The process of mediation is getting formalized and is becoming more common now in Canadian jurisdictions. In the adversarial court system the lawyers are required to protect their client’s interest and in this adversarial atmosphere they may not have the incentive to settle. Alternate Dispute Resolution methods such as Mediation and Arbitration are helpful as alternate means of settling disputes and when they are settled it reduces the work load of the courts. More of these methods need to be explored in India.
Mediation presents a much better method of bringing the two parties and resolving the differences face to face and without the elaborate court procedures. It also creates a different atmosphere. This type of approach can also be integrated in the litigation process where the mediation procedure is permitted to be introduced as a means of resolving the dispute before it reaches the final stage of trial which is expensive for the litigants and slows down the judicial process.
The pleadings in India tend to be one sided and gross emphasis on client’s position instead of reflecting the position that can be taken in the light of the facts. Improved quality of pleadings can help the opposing counsel and the court understand the matter more objectively. Procedural rules should be used more vigorously to strike out the pleadings or require amendment when necessary and permit the moving forward of the matter in a timely fashion..
The larger cities in India have lawyers who use computers. Computers are not yet common in smaller cities. Where they are they are very much helping the quality of the written material, pleadings or conveyancing documents which look professional. The research through computers is also becoming common. More and more of the Indian laws and cases are being put on the internet. Computers will play a vital role in the future in India as India a large pool of computer expertise.
Code of Ethics
The model of the self governing profession was inherited by India from the English system. However, when it comes to disciplining the individual member the cohesion within the profession is too strong and it is very difficult to discipline a lawyer. The bar associations need to move forward with the recognition that there will be situations where some lawyers need to be disciplined. If there is immunity from discipline the profession cannot move forward in the higher standards that need to be brought to improve the system.
The reputation of the lawyers as a whole is very important in the community. They should be perceived as guardians of justice rather than users of the system for their own gain. To change the negative perception of the legal institutions, the institutions must work hard and earn their respect. In doing so it takes a long time and dedicated effort of all the institutions, including lawyers and courts, to show the public that together they are providers of service to the community and the community deserves the highest standards of practice to deliver justice in a timely fashion. Improvements are taking place and it will take time for the community to recognize it. More financial and other resources are needed to support the system. As the country makes economic progress more of the funding should become available for the improvement of the system.
A practical part of the improvement of the image also comes from physically having offices that have a reasonable appearance and filing systems and equipment such as a typewriter and computer which would show to the public that the lawyer’s practice is professional and they can expect professional standards of work from lawyers. Leading lawyers in India are already moving in facilities are rival any in the west. The court house in Ahmedabad that I visited was a new building and impressive.
In the last few years Ontario has started a Mentorship Programme under which the senior lawyers with experience mentor a junior lawyer. Historically in England the Inns of Court had and still have dinner system where the senior lawyers met junior lawyers and shared their experiences. It is a very good way to share your experiences and inspire the new generation of lawyers to excel in the legal profession. Where there are younger lawyers who are enthusiastic about the profession and they should be supported and encouraged.
India is a large country with a population of a billion people. Indian Judiciary faces a heavy work load and number of judges have not increased in proportion to the increase in population, and this hampers their ability to resolve cases promptly and within reasonable time. Time guidelines should be set for criminal and civil cases for final resolution, and it should be possible to have a typical criminal case resolved within a year and a civil case at a lower level resolved in two years.
The system for judicial appointment is very important in obtaining the quality of the decisions. Legal decisions are human judgments of evaluation of law and facts. In Canadian jurisdictions the lawyers are not by law permitted to be Judges until they have ten years of experience. The appointments process should not be political. Only the best lawyers who are competent and ethically sound should be appointed. During the tenure of a Judge he will make many decisions which profoundly affect many lives and society. They also create an image of integrity of the legal system. If the image is not good the citizen will resort to self help schemes to obtain his remedy.
The procedural rules should be enforced vigorously. For example if a defence is not filed by the defendant within the time limit the court should allow a default judgment. Enforcing procedural steps would help expediting the resolution of the matter instead of the parties always contesting adjournments.
Each trial should be recorded by a Voice Recording System. This enables a proper transcript to be prepared and an appeal filed where required. It ensures that the evidence given and the dialogue of the parties in the court room is taken seriously by each party. Transcript of such recording enables the higher court to hear the appeal more effectively.
The court rooms and the facilities used by Judges and Lawyers should carry dignity. The court rooms should have reasonable appearance and at the hearing only one party should be permitted to talk at a time. Decorum and the polite language add to the dignity of the court and the respect that litigants have for the decisions made by the courts.
Indian Courts are far more accessible in terms of low amounts of fees required to start an action. Canadian Courts with higher filing fees make access to courts more difficult. However, recently those who cannot afford court fees can claim exemption from payment. The Canadian courts are heavy in technical procedural rules which are drafted for the protection of the litigants but they make the access to courts expensive by requiring trained lawyers to deal with these rules.
Like the medical support society needs an orderly and effective legal system for its citizens to develop the economy and protect the human rights. India is moving forward fast and the legal system needs to catch up with the economic advances in the country.