Urgently required Legal Reforms

India ranks at bottom of the world in contract enforceability which reflects on our legal system. Democracy is all but failure where public is forced to choose between devil and a deep sea (Congress and BJP for instance) while honest people are persecuted in broad day light (Anna and Kejriwal). Corruption has grown into robbery and extortion while criminals are afraid of nothing. Problems are infinite but solution is none because our legislation and executive both are failures with only light at the end of tunnel is being judiciary, but even that is crippled with over 3.5 cr pending cases, and indifferent procedures and law taking infinite time in justice delivery, complete uncertainty in the process, invariable appeals and de facto lack of accountability.

This situation must change if India is to survive as a successful democracy. Judicial system must gear up to deliver judgment in days and not years!  S’pore being on top of the index of Ease of Doing Business, delivers any judgment in matter of days as if their courts are simply idle or as if their citizens are angels while Indians are demons!

If S’pore can do that, why can’t India? After all, pending of cases in one city’s courts has nothing to do with other city, and each city can easily aim to compete with S’pore and improve its justice delivery system to make its courtsde facto idle. If that can be achieved, India will be able to solve ALL PROBLEMS because aggrieved party or public can easily move court for anything and everything and set things right, and eventually make both Executive and Legislation accountable.

I have a few suggestions for consideration to help achieve this aim:

1) Increase number of courts

a. Assuming that there are 3.5 cr cases pending, that one court decides 2 cases per day, that there are about 20 courts per district and that there are about 1000 districts in India, there should be about 20,000 courts deciding 80 lac cases a year.

b. Since new cases keep coming in and most cases go into appeals, pendency is only rising. Reports say that it will take 300 years to clear all the pending cases at present rate!

c. It will take appointment of just 40,000 judges to triple the capacity of these courts costing just about Rs 14,400 cr a year (assuming Rs 3 lacs per court per month) and a one time capital cost of Rs.2000 cr (assuming 500 sq ft for each court @ Rs 1000 per sq ft).  This amount is paltry given the central govt’s annual budget exceeding Rs 16 lac cr and states budgets exceeding Rs 25 lac cr, thus, total govt spending being Rs 40 lac cr a year in India!

d. It is extremely important to appoint at least 40,000 more judges and triple the justice delivery capacity in India which is easily affordable & doable.

2) Make  it punishable to tell lies in courts incl. by lawyers

a. Presently, law does not discourage any lies/misrepresentation brought to court by a party to litigation. Even apparent facts are denied and more time of courts is wasted to prove even apparent, irrelevant facts and the liar easily gets away with it.

b. Law must be amended to ensure that every direct or indirect lie spoken or suggested in court is COMPULSORILY punished.

c. Law to ensure that lawyer is obliged to verify the facts before stating in courts and must prove to be innocent if any lies are exposed failing which he must be punished for colluding with litigant in misrepresentation to the courts as well.

d. The punishment must be defined in law to be the same that the opponent would be facing who is to suffer from these lies and mis-representation.

3) Remove subjectivity especially in Bail administration

a. Bail administration is completely subjective, rather whimsical, without any accountability at all. Naturally, it is breeding ground for corruption. A lawyer charges lacs of rupees for bail application while just a few thousands for rest of the trial.

b. The bails must be made objective. A bail must be COMPUSLORILY granted UNLESS  answer to any of the following questions is a YES:

i. Is the accused likely to be threat to the society if released on bail?

ii. Is the accused likely to abscond and run away from facing trial and receiving sentence if released on bail?

iii. Is the accused likely to influence the witnesses or temper with evidence affecting the fair trial, if released on bail?

c. Law must require reasons for above to be recorded while accepting or rejecting bail, and such findings be appealable as well.

d. Currently, legal practice is that a bail application is to be heard by the same bench (judge) to whom it was presented earlier. Whatever be the stated nobility of purpose behind it, practicality is that the subjectivity of the judge concerned plays havoc with the accused. Rather, system must ensure that second time bail application is not to be heard by a judge who had rejected it earlier so that another judge could apply his mind objectively and do justice.

4)   Accountability for judicial decisions at each level

a. Frequently, strictures are passed about competence or fairness of decisions of lower courts, by higher judiciary and yet, no action is taken against the judge concerned who is allowed to continue working and keep hurting more litigants.

b. Even against reports of corruption, no action is taken against the judge who is only requested to resign and if he does not oblige, simply transferred to another court. This is like surgical removal of cancerous cells from one organ and implanting in another organ, as though the receiving court deserves the corrupt judge and the subjects under jurisdiction of that court are not entitled to a fair, competent and honest judge.

c.  Law must provide for a system of grievance redressal by the people against any judge, compulsory suspension if complaint is held to beprima facie tenable. A body like Jan Lokpal should be considered for this purpose.

5) Compulsory execution of decree by same court that delivers judgment

a. Currently, courts are indifferent to execution of the decrees which often encourages defiance by providing for 6% or 9% simple interest when the judgment debtor knows he is paying 14 to 15% monthly compound interest to bank for his borrowings.

b. Law must provide for mandatory compound interest at 2% over the bank lending rate (which could be specified as twice the RBI’s Repo rate for ease of administration) from date of decree, AND compulsory seizure of assets of the judgment debtor if decree remains unpaid after 30 days unless stayed by appellate court. This will obviate unnecessary litigation in execution of decree wasting lot of time of the already burdened courts.

6) Penal and compound interest

a. Currently, judges allow 9 to 12% simple interest in commercial litigation which is cheaper for debtor who is encouraged to drag the litigation and save on his interest costs.

b. Law must provide that the applicable interest will be bank lending rate on monthly compound basis from date of claim so that it is fair to the claimant and is not an undue advantage to debtor. For ease of administration, RBI’s Repo rate could be defined to be bank lending rate unless otherwise proven by parties concerned.

7)  Rationalization of law on specific performance to discourage blackmailing through the process of law

a. Currently, specific relief act

i. Presumes that money is not adequate compensation in property related disputes,

ii. Presumes that time is not essence of contract for transfer of immovable property,

iii. Simply asks for plaintiff to aver his willingness and readiness to perform, but does not require him to prove it, and

iv. Does not demand deposit of purchase consideration in court by litigant buyer while blocking the seller’s property whether by injunction or by legal presumption of any title to even subsequent bonafide buyer being subject to court’s decision which practically, operates as court’s injunction against seller as he is simply unable to sell his property until disposal of the case while buyer has only paid a small token amount.

v. Thus, the law encourages dishonest buyers to pay small token amount, and then, file a suit for specific relief blocking seller’s property for a long time and eventually, force him to meet his illegitimate demands.

b. Law should be suitably amended to demand the litigant to prove as to why money is not an adequate compensation for breach of contract, removing the presumption. This will make such litigation more balanced.

c. There is no reason for law to assume that time is not essence of contract. It must come out from facts of the case and therefore, such assumption must be abolished as well.

d. Law must require the plaintiff to prove his willingness and readiness to perform and not simply aver it.

e. Law should be amended to make it compulsory for a buyer to deposit balance of unpaid purchase consideration in court if he is demanding any injunction on property of the seller.

f. Law to be amended to remove the principle of title of subsequent buyer to be subject to court’s decision in cases where the litigant buyer is not demanding injunction (and avoiding having to deposit the unpaid purchase consideration in court).

g. These changes will remove motivated litigation resulting in extortion and blackmail abusing the process of law.

8) System of compulsory punishment to Police for failure to register FIR or conduct fair investigation

a. Law to provide for complaint filing to the court to demand punishment to concerned police officers who fail to register FIR in cases where cognizable offence is disclosed (recent supreme court case – Lalita Kumar vs Govt of UP) so that theoretical law could be applied in practice.

b. Similarly, for each criminal trial, law must provide for recording observation of the court as to whether police has conducted FAIR INVESTIGATION in the case concerned. Police is frequently biased or incompetent. They either ignore evidence and facts that go in favour of the accused and do not present the same to court, or do not do a fair job to bring all relevant facts to table to arrive at fair conclusion before filing charge sheet. This is why conviction rate is poor in India.

c. The above changes will make police more accountable, and improve conviction rate, while avoiding harassment and blackmailing of innocent accused.

9) Reverse punishment to unfair litigant

a. Law must be amended to record observation by court at conclusion of each trial, as to whether it was fair on the part of plaintiff to have moved court given the adequacy or fairness or availability of evidence; and whether his motive of moving court was only to cause needless harassment to the opposite party, and if so, to sentence fair punishment to him. This should be at least half of what is sought to be meted out to the defendant.

b. Likewise, court should record observation in all criminal trials as to whether prosecution was fair and reasonable to launch prosecution and whether it had a fair chance of success of the trial given the quality and adequacy of evidence, and if not, some sort of disciplinary action to be taken against them as well.

c. This will curb tendency of people to move court with intention to harass the opposite knowing too well that they do not have adequate evidence to succeed in the trial.

10) Amend Rent Control laws and make it balanced between tenant and landlord

a. While India apparently does not have a political will to abolish the rent control laws that do not belong to modern world, it must at least bring some balance between a tenant and a landlord. Currently, law is basically meant to protect a tenant from a landlord, and not to protect a landlord from a tenant at all. Consequently, everywhere in India we find old and decrepit buildings occupied by tenants for ages as de facto owners.

b. Law must abolish requirement for landlord to show his personal need as the reason for demanding eviction from tenancy. Rather, it should provide as a sufficient ground for eviction if the tenant owns or is in occupation of another property whether in his own name of in the name of his immediate family, or if he is sufficiently well-to-do to afford taking another house for rent not necessarily in the same locality.

c.  Likewise, it should be sufficient ground for eviction if a tenant can be shown not to be normally occupying the rented property for his own use. If tenant is only occupying the subject property while not normally using it on full time basis, he must be asked to vacate.

d. Tenant must use the property for his own use only, and should not be allowed to pass on any tenancy rights to his successors without the written consent of the landlord.

11)  Create special bench at each high court for Public Interest Litigation

a. Once courts become more efficient in delivering justice, more people will like to approach court for innumerable reasons.

b. It will be better to crease a specialized PIL Bench at each high court to deal with such cases.

12) Bar any govt appointment after retirement

a. Most enquiry commissions in India are meant to last for ever, simply because they are meant to provide life time post-retirement job to retired judges and babus. This abuse of democracy needs to be guarded against.

b. Likewise, anticipation of lucrative posting post-retirement is a strong incentive for a retiring judge or babu to compromise with his impartiality which again hurts the basics of justice.

c. Law must be amended to provide that no appointment of any kind is allowed to a retired judge or a babu whatsoever. There are sufficient job seekers in India in employable age to do the job if still required.

13) Instability of tax laws due to too-frequent amendments/changes

a. Indian tax laws are too instable. Apart from dozens of amendments in every finance act every year, there are frequent changes through circulars, notifications etc round the year. This is unfair for tax payer while costly for the economy of India.

b. Law must provide that there will be no change in tax laws whether through any circular or notification during the year except through finance act every year EXCEPT for a clear declaration of circumstances existing to warrant such mid-year change which should be challengeable in court of law by any tax payer. It will discourage accused from bribing or influencing witnesses to get acquittal defeating the cause of justice as well.

14) Compulsory punishment to hostile witnesses

a. Increasingly, there is a tendency for people to accuse someone of a crime, get him arrested and then, negotiate large amount of money for turning hostile for his eventual release. This is blackmailing through process of law which must be checked.

b. Law to provide that any hostile witness is compulsorily awarded the same sentence that the accused would normally get if the trial had been successful on witness sticking to his/her original story. This will make witnesses or complainants more serious and responsible before simply moving police/court and cause huge burden on the system while inflicting huge damage to peace and property of the accused.

15) Too few working days & too many holidays in courts –

As per news reports, lower courts work for 204 days, high courts for 210 days and Supreme court works for 180 days in a year. Any ordinary office in India works for 300 days and factories work for 350 days. With so much of backlog, why shouldn’t the courts be working just like others? The nature and quality of work they do is not more demanding than that done by all others in the country, and if the people concerned believe otherwise, they are free to choose other professions. In fact, one would expect them to work double shift till backlog is cleared. The justification of long holidays of the colonial era is long gone. System must be changed and courts must take holidays as prescribed for banks in Negotiable Instruments act only, and no more.

ALTERNATIVELY:

I believe that it will take Anna nor Kejriwal kind of conviction and courage to consider and implement the above changes. If we don’t have that, the alternative is to OUTSOURCE OUR LEGAL SYSTEM TO SINGAPORE who know how to manage anything and everything. This will be cheap, and effective for India in protecting its democracy before it meets the inevitable fate of a failed democracy like Pakistan. Of course, the issue of some vested interests will still remain to be addressed.

 

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Anil Kr Garg Online
on 26 November 2013
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