Saturday, June 26, 2010

Cases clogging Indian Courts: Ideal route to reduce backlog

Ideal route to reduce backlog of cases
Business Daily from THE HINDU group of publications
Wednesday, Jun 02, 2010
The backlog of cases pending in India's courts is mounting uncontrollably despite frequent noises made on this issue in several quarters. Speaking on ‘E-Governance in Judiciary' in Hyderabad in March this year, Andhra Pradesh High Court judge Justice V. V. Rao gave the startling information that every judge in the country had an average load of about 2,147 cases and it would take 320 years to clear the backlog of 31.28 million cases pending in various courts, including the High courts.

Many remedies have been suggested, such as shortening the appeal process, being strict about adjournments, cutting short the vacation of High Court and Supreme Courts judges, hearings on a day-to-day basis and in shifts, more stringent supervision of the pendency by more frequent inspections by superior courts and increasing the ratio of number of judges to the population from the present 10.5 per million to 50.

Try as I might, I did not come across in this welter of studies and statements any mention of the significant role arbitration and conciliation could play in drastically bringing down the number of pending cases, if only the higher judiciary would adopt the deliberate policy of invoking the provisions of the Arbitration and Conciliation Act, 1996.

All categories of cases other than suits for divorce or restitution of conjugal rights, resolution of disputes over taxation, non-payment of admitted liabilities and criminal matters can be brought within the purview of the Act, provided the parties concerned have signified their willingness to submit them to arbitration.

The Act gives a considerable measure of flexibility for indicating this willingness: It can be a formal agreement, exchange of letters, document, telex or telegram.

Self-made shackles
Unfortunately, though, as pointed out by a former Supreme Court Justice Ruma Pal, the apex court itself, in a number of judgments, has taken all life out of the Act. These are her words: “One of the main objects of the Act was to free the arbitral process from the coils of the judicial system and minimise the supervisory role of courts.. (This) has been defeated by the Supreme Court by its interfering in the arbitral process at all stages, from the stage of appointing an arbitrator to the consideration of the award — often rewriting statutory provisions….”.

The result is that an Act that was meant to resolve disputes with the least delay and with minimum intervention of courts of law has become instrumental in burdening the backlog by nearly one-third of its total.

Since High Courts and the Supreme Court have practically substituted themselves in the place of the Act, even petitions for appointment of arbitrators, which was to be a simple and straightforward affair, have joined the millions of pending cases.

Thus, all the advantages that would have accrued to parties — freedom from hassles, low cost, quick disposal — have been lost.

Compounding the self-made shackles is the scarcity of facilities in the country for institutional arbitration, which scores over ad hoc arbitrations in that it places at the disposal of parties a ready infrastructure in the form of panels of arbitrators, libraries, office premises and a well laid out and transparent procedure governing scales of fees, timelines and the like.

The Palkhivala Arbitration Centre at Chennai is a pioneering institution in that respect which can be a replicable model for the entire country. The new Chief Justice will be doing a great service if he addresses the issues at his level at a special conference, if necessary, so that the full range of benefits to be secured from arbitration and conciliation are brought within the reach of the people at large.
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