Legal Reforms- Need for Disruptive Innovation

By Ramakant Khalap
01 February 2013 22:02 IST

Nirbhaya, the unfortunate victim of the monstrous carnal adventure of a   group of youngsters in a moving bus in Delhi has in death given a jolt to the combined conscience of the Country, which had been totally apathetic and almost blind to the archaic legal system of this Country.

We have now started talking in animated terms about speedy investigation, fast track courts and expeditious implementation of sentences meted out to the criminals. This enthusiasm may not last long as we all including our Governments are used to long hibernating periods between tragedies and above all only a handful of us have the luxury of finding time to address public grievances hard pressed as we all are trying to eke out a living.

I had, in my first ever address to the legal fraternity in the Supreme Court courtyard on 27th November 1996, drawn attention to the huge pendency of almost 3.5 crore cases in our Courts including the moffussil courts at the lowest level and the  Supreme Court of India at the apex level. I had said that each case involves at least two families, each of say 5 persons or 10 Indians per case. If we add 5 witnesses per party or on average 10 witnesses per case, the number of persons involved per case jumps to 20. Then there are judges, lawyers, members of the extended families of the litigants and even touts and trouble mongers all of whom add up to say 10 additional persons per case. This gave a staggering figure of about 30 persons per case or 3.5Cr x 30 =105 Cr Indians involved in civil litigation. 105 Cr then was the entire population of India. I did not venture to calculate the man-days lost by the litigating Indians and the impact of such loss to the economy. I also did not refer to the trauma of waiting for justice for years on end nor to the deteriorating mental and physical health of the litigants due to pent up anger and its impact on the law and order situation.

But I had accused the higher Judiciary of sitting in their ivory towers pontificating about legal principles and philosophies and turning a blind eye to the millions suffering in silence for years and some even for generations. I myself was shocked at this Himalayan problem and proceeded to amend the Civil Procedure Code to ensure speedy disposal of cases. I am happy that my efforts in the form of the amended Civil Procedure Code now in force have largely helped the litigants in getting speedy disposal of cases.  Amending the Civil Procedure Code was just one little step and many more were needed and continue to beg our attention. The recent prediction of the Supreme Court supported National Court Management System that by the next decade the  number of pending cases may rise to 15 crores from the present 3.2 crores while the judge strength may rise to 75000 judges from the present strength of about 18,000 out of which normally 1/3 remain as vacant posts and another 1/3 judges remain on leave and vacation leaving hardly about 5000 Judges to manage 3.2 crores pending cases. Can this Country afford the luxury of judges enjoying winter, Christmas and Summer vacations which add up to about a quarter of a year? Can we not think of 24 by 7 Courts? Would it be out of place to suggest panels of presiding judges to man the Courts in the absence of regular judges for whatever reason?

Several reports of the Law Commission of India recommending law reforms remain gathering dust for years. One of them, the 120th report of the Law commission of India had recommended that we increase our judge strength from 13 per million to at least 50 per million against 130 of US, 100 of UK and 75 of Canada. An unresolved civil dispute often leads to criminal acts by the aggrieved parties. It spawns kangaroo Courts and fosters disenchantment about the Judiciary itself. No amount of fast track courts can solve the bulging docket problem. A complete overall of our laws and legal systems is required. We may have to disrupt the system and usher in innovation at all levels.

We have more than 35000 State laws, 3000 Central Laws, and equal numbers of Rules to implement these laws. In addition, there are notifications and other forms of delegated Legislation. We are also bound by the plethora of precedents established by judgments of High Courts and Supreme Court and the customs and usages prevalent in our Country. The procedural laws which are supposed to be handmaids to substantive rights of the parties have stifled the litigants in unending webs of appeals, revisions, reviews, special leave petitions and interlocutory applications filed at every stage . It is difficult to find one’s way out from this complicated maze.  Justice, therefore, is a distant dream. Our legal system has defeated the Universal declaration of Human Rights, which declares, “Everyone has the right to an effective remedy by the competent national tribunals” We have inherited this system because of our past links with common law system of the British.

The tiny state of Goa has a mixed legal heritage. The Civil Code enacted during the Portuguese rule is still prevalent in Goa alongside the common law system. Most parts of the Civil Code, however, have been truncated due to extension of laws like the Transfer of Property etc. Civil Code system is prevalent in Portugal, Italy, Germany, France, Japan, Indonasia, parts of US and Canada and in many other countries. The Civil Code of 1867 enacted by the Portuguese is almost uniformly applicable to all irrespective of their faiths.  When first enacted the Portuguese carved an exception to it by enacting a special law protecting the usages and customs of the Hindus. This special law, in course of time fell in disuse, though it continues to be on the statute Book, as people voluntarily opted to be governed by the Civil Code. Art.14 of our constitution, which has remained “a Dead letter “ to this day needs to be resurrected from the dead by enacting a Common civil Code applicable to all communities and faiths while simultaneously placing alongside specific statutes concerning our individual faiths with an option to the people to adopt the system of their choice. I am sure the people of this Country will eventually prefer to opt for a common Civil law just the same way as Goans have done over the years. A Civil Code is a scientifically prepared legal document, which replaces a host of Laws, Rules and notifications clogging the law Cupboards. The Civil Code would be a one stroke cleansing Act. Specific Codes for civil, mercantile, taxation and International commerce can be compiled for the respective subjects.

Most of the time of the Courts is spent in non adjudicative work like accepting pleadings, documents, reports and in recording evidence. Judicial mind is   exercised while framing issues, in deciding interlocutory applications and in pronouncing judgments. It is possible to allot all non adjudicative works to Court clerks. Civil Procedure Code permits recording of evidence through commissions. Alternative Dispute Resolution systems like Arbitration, Mediation and conciliation are available under the Civil procedure Code and Arbitration and conciliation Act. ADR organizations duly recognized by the Courts can wean away a large number of litigants with the lure of non- adversial, speedy and efficacious resolution of Disputes. The Notaries are empowered to function as Arbitrators, mediators and conciliators. They are also empowered to record statements on oath. They are thus in a position to share part of the burden of Courts. The civil law system provides for special Notaries for recording wills, successions, renunciation of inheritance and allotment of properties to the heirs through internal auction among the heirs of the deceased. They are  empowered to maintain records of rights and to record transactions of transfer of properties. Our Record of Rights system under prevailing Land record Laws is not sufficient to establish title to the property. Such records create only presumption of title. Root cause of most of the civil litigation is the alleged defective title. Is it not possible to have a uniform Land Titling Act and a unique identity number for each parcel of land with provisions for recording flow of title from original owners to successive transferees and one common register for all deals and transactions relating to land? Goa had such a system until a few years ago when it was messed up by extension of Indian Registration Act and the Transfer of property Act. Under the Land Revenue Code all old land records were ignored and new ones created without any reference to the specific ownership rights and encumbrances as well as the extent of area or the boundaries. It is a herculean task to clear the mess now. Yet it has to be undertaken to prevent or at least lessen future litigation. The Goa Succession, Special Notaries and Inventory proceedings Bill now before the local Assembly is worth consideration by the Country as well. Digital technology can be a great help in record keeping and streamlining the work of the Judiciary.

It is time we pay homage to Nirbhaya in a befitting manner. Candle light marches may fetch some good bytes on the electronic media. But only a disruptive and innovative method which should combine the best of the common law and civil law systems, would be the answer to the clogged courts. Goa and Mauritius which have a mix of the two systems can be torch bearers in our quest for appropriate reforms.

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Ramakant Khalap

Adv Ramakant Khalap is former Chairman of the Goa State Law Commission. Being a veteran politician of Goa, he has served the political arena as the union law minister as well as Goa’s deputy chief minister and the opposition leader in the past. He also takes keen interest in literature and cultural activities while heading several institutions, especially in the field of Marathi literature.

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