‘Indian Arbitration Service can be made on the lines of Judicial Service’ | Photo credit: Getty Images/iStockphoto
Two important voices have been raised recently on the delay in the justice delivery system. Chief Justice of India DY Chandrachud said that increasing the number of judges will not eliminate the perennial problem of pendency, and it is now quite difficult to find high court judge material. Chairman of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Sushil Kumar Modi has called for out-of-the-box thinking to solve the problem. Joining the dots, it seems clear that a convention-inspired reform would be a lot like rearranging the deck chairs on the sinking Titanic. So, do we have other tools, resources and methods? Here are three that are doable, don’t cost much, and provide solutions.
High courts are losing resources from the Supreme Court
We find it difficult to find good talent to be appointed as High Court Judges, but year after year we witness the retirement of a large number of experienced and well-rounded Judges from the High Courts as they reach the age of 62. Have passed Many have many; in them the leftovers of a good year’s work go to waste, like the richest sediments on a river bank being washed away into the sea. All that needs to be done is to continue them with pay and perks, and we will keep the best for their last service.
Go ahead with out-of-the-box thinking and bring back retired judges of the Supreme Court to hear Special Leave Petitions. Hundreds of appeals are filed every week against all kinds of orders of lower courts and tribunals across the country. They are the biggest obstruction to justice in the Supreme Court (SC) as they spend half the time of the senior most judges of the country in reading these hilly files only to decide which part to hear and dismiss the rest Is. This is stretching an analogy, but imagine the board of governors of a central bank sitting down to examine suspicious currency notes. Many SC judges are in good shape when they retire at 65, and it is a better job for them than arbitration where they become subject to scrutiny by district judges. And working hours and schedules can be flexibly designed to accommodate retired judges’ operations. This will enable the present judges to take up important cases in adequate bench strength and composition. Scale it up a bit and come up with a scheme whereby experienced senior advocates of the High Court sit as judges once a week to hear cases from the High Court of another state. Many will sign up for novels and contribute experience, and many will do excellent work.
Strengthen online justice and arbitration
But, the question arises, don’t we need more brick and mortar structures, office infrastructure and an army of employees? No, we don’t, and this leads us to the second suggestion. Cultivate justice online. Courts responded brilliantly to the COVID-19 shutdown by using online facilities, and very soon, judges and lawyers became quite well versed with this new medium and welcomed its ease and flexibility. The environment would also have been relieved to avoid a carbon footprint. Unfortunately, we have gone back to the olden days where only physical hearings were held in overcrowded courts, negating the benefits of even hybrid methods. However, enabling informal Judges working online from home with minimum support staff is an excellent harness of human and technology resources; It will be able to handle a large number of cases. And disposed well, not just disposed, which is what would happen if we appointed unqualified new justices. The latter not only creates injustice but also requires two good men to sit in the corrective appeal.
Finally, employ mediation. As a method of dispute resolution, it is far superior to litigation in cases where it can be applied. They cover a wide range from personal and matrimonial to civil and commercial and property disputes. India has had a wonderful initial phase with this process; In less than 20 years, it has firmly established itself in the court of law with thousands of trained and enthusiastic lawyers and other mediators handling lakhs of cases. If well planned and executed, mark my words, we have the potential to take half the load of such cases off the court docket and onto the arbitration table. And, even now, most mediation centers have a success rate of over 50%, much more than that. When you realize it costs little, takes a fraction of the time of litigation, brings about a solution that all parties can agree to, eliminates appeals, is easy to implement if necessary, and To respect and restore relations. So you know why Sundaresh Menon, Chief Justice of Singapore says, “What’s not to like about mediation?” There is no sense in using arbitration as the central peg of improvement. What is required, however, is to formulate and implement sensible policies and strategies to support it; And chief among these is to make it a professionally attractive career option for mediators who aspire to make a living as peacekeepers. An Indian Arbitration Service may be created on the lines of the Judicial Service. And both incentives and disincentives should be devised for existing and prospective litigants to try this consensual method in good faith. That’s all that’s needed; Lead the horse to the pond, and more often than not, he will drink from it and taste the nectar of compromise and friendship.
reform can be successful
When we look at the crushing backlog of Indian courts, even the bravest feel intimidated, and every chief justice probably feels like the Greek mythological character of Sisyphus, and in eternity, only to roll boulders up the hill. Let’s roll back. Traditional reforms prescribe more of the same – more judges, more courts, more staff, more infrastructure. But we know we have neither money nor men and women. And, of course, we are tired of the constant lamentation of obvious and ever-present problems. These suggestions offer a surprisingly different approach, one that captures and makes best use of the excellent available resources, technical and personal, and can make a powerful impact. And they will show that innovation and reform can be successful, a message that is much needed. When need and possibility meet, a spark flares up. To remember Sri Aurobindo in his great writings god’s time, the moment has come; But will we lose it because the lamp is not trimmed for the welcome and the ears are sealed for the call?
Shriram Panchu is a Senior Advocate and Arbitrator