ILA Declares Judicial Emergency in India
Indian Lawyers Association declare a judicial emergency in India and exhort all relevant parties to take part in assisting with this emergency.
The desired outcome of this emergency declaration is to resolve the pending 30 million cases in Indian courts in the next five years, from 2019 to 2023. That’s resolving six million cases per year. 5,00,000 cases per month.
We are cognizant that in the meanwhile new cases will be filed, but the goal is to clear all the backlog by December 31, 2023.
It is now widely understood that these pending 30 million cases are affecting the lives of Indians in a negative fashion, creating unhappiness in the society, putting people’s lives on hold, causing a negative impact on the GDP of the country, and obstructing the progress of India towards becoming a First World nation.
The other scary thought is that Indians become more functionally literate and realize their rights, the number of cases that get filed in Courts will increase.
ILA recommends the following 88 ways to clear this 30 million cases backlog:
- ILA hereby declares a societal emergency for resolving the pending cases. An attitude of urgency shall prevail in every nook and corner of the judicial process of India for the next five years. The entire country goes on a war footing to jointly fix this ailment of our society. The rest of 2018 we use to prepare for this war.
- Every single State and UT commits to resolving 20% off their caseload every year for the next five years.
- Every single Court in India commits to resolving 20% off their caseload every year for the next five years.
- Every single Judge commits to resolving 20% off their caseload every year for the next five years.
- Every single lawyer in the country commits to resolving 20% off their caseload every year for the next five years.
- Every single individual in India who has more than five cases pending in a court, commits to resolving 20% off their cases every year for the next five years.
- Every single corporation, partnership, LLC in India who has more than five cases pending in a court, commits to resolving 20% off their cases every year for the next five years.
- Every single Governmental agency in India who has more than five cases pending in a court, commits to resolving 20% off their cases every year for the next five years.
- Every single Prosecutor in India who has more than five cases pending in a court, commits to resolving 20% off their cases every year for the next five years.
- Every jurisdiction in India that hires judges will hire twice as many judges as they have now. Money for this will flow as outlined in this declaration.
- India has some 21,000 Judges right now and sociologists believe that India needs to have at least 70,000 judges. Which is great news because it creates employment for another 50,000 judges and for another 500,000 indirectly. The question is money, which can easily be obtained by some creative solutions. Money is never an issue if people of a country get justice. India is now world’s 5th largest military spender. Arguably military spending to ensure justice for the people of India. The budget for the legal system of India last year was $180 million.
- Speaking of money, of the budget allocated for the legal system of India, only half was utilized.
- Arguably, more importantly the vacant judge positions need to be filled ASAP. The vacancy rate runs as high as 25% to 50% of in some courts. This obviously overburdens the remaining judges and slows down the entire legal system.
- Increase the number of support staff to judges in a dramatic fashion. The support staff should be able to keep the court room in check, reduce the aggravation for everyone and be able to handle half of the administrative matters for the judge, such as setting up court dates.
- Every Judge should be allowed to hire a research attorney.
- Lawyers who work as research attorneys for Judges end up becoming better litigators. Fourth and fifth year law students should be eligible to work as research assistants.
- Judges need to be compensated more fairly. The compensation needs to be high enough that no Judge ever feels the need to take bribes and corrupt the entire system. The very few judges that are unethical and immoral give a bad name to all the judges.
- The entire court system will not close during summer. Vacations will be taken on a staggered basis.
- India cannot become a first world nation with so many court holidays. Judges work load needs to be distributed and reduced, but courts need to be open more days.
- Throughout the country there shall be night courts till midnight. Some very busy courts should operate in three shifts and operate 24 hours day and night. This is an emergency, and we need to take these drastic measures only for five years.
- Some or all courts will operate on weekends as well. Lots of “personal” matters can be handled over the weekend when convenient for people. Also, many people lose wages if they don’t go to work during weekdays.
- Increase Judges retirement age to 75. One-third of the US Supreme Court judges are over 75. Indians love vegetarian food, don’t drink as much, have Ayurveda and Homoeopathy and invented Yoga. We can beat the USA.
- Courts need to reduce their noise and traffic 90% so that the judges, court employees and lawyers can think and operate at an optimal level.
- Expand the use of mobile courts to reach the deep hinterland of India and bring justice closer to people.
- The one million law students should be given paid internships and asked to help with the mobile courts. Not free internships, the law students and junior lawyers are abused enough.
- Increase the number of fast track courts throughout India. The fast track courts need to have strict court rules of procedure, and not relaxed following of procedure.
- Some courts in India are operating at less than 50% of their sanctioned capacity. As a society we should not put up with such despicable efficiency. We loudly wonder what’s one more lawsuit to ask a higher court to order the lower court to fix itself ASAP.
- The Supreme Court hears too many cases, and it should change its system such that it is not the first stop for over 90% of the cases it hears. The majority of the cases it hears now need to go to another court first for adjudication.
- Time for version 2.0 of the Lok Adalat. More empowered, functional, and trained. Someone needs to do the training. Law students, retired judges, retired police officers, a new national nonprofit? Also, time for a national Lok Adalat institution that meets quarterly for training and exchanging ideas.
- Severe financial and criminal punishment shall be accorded to plaintiffs who file frivolous cases.
- Lawyers and litigants will be given an opportunity to dismiss frivolous cases before January 1, 2019, after which the penalties will start.
- Courts will collect a penalty payment from lawyers who show up late to court.
- Lawyers and parties often don’t show up to hearings at all. Courts will collect a penalty payment first time any party misses an appointment. Second time, the Court will render a verdict against the “no show” party or lawyer.
- Courts will collect a penalty payment from lawyers who don’t file their pleadings on time.
- No continuance of a trial or motion will be granted without “someone died” reason. If at all a continuance is granted, it will be granted with a payment to the Court.
- Courts will collect a penalty payment from lawyers who file pleadings to delay matters.
- Courts will collect a penalty payment from lawyers who file frivolous pleadings.
- Courts will collect a penalty payment from lawyers who don’t follow court procedures.
- Lawyers are officers of the Court. Courts will collect a penalty payment from lawyers that lie to the Court.
- Courts will collect a penalty payment from lawyers and or parties who don’t respect the Court.
- Courts to get extremely tough with Government of India and all other Governments and Government agencies, since the Government is responsible for half of all pending cases. Courts must levy heavy penalties against the Government for frivolous filings, and filings to harass her citizens, and not using common sense methods to resolve disputes.
- It is estimated that if nothing drastic is done it will take about 500 years for the Indian judicial system to clear up all the backlog of cases including the new cases that will be filed. Every citizen of India needs to wake up to this and commit to fix the system.
- Netherlands is reported to have the best legal system in the world, and has relatively few judges per capita, but it takes an average of 87 days to handle a trial in the country. How about if States of India pass a law that if a case if not finished in three years, it will be summarily dismissed in favor of the defendant.
- If States are not willing to, or do not have the political support, the Supreme Court needs to lay a rule that all cases must be adjudicated within three years – otherwise, the case is thrown out.
- The Code of Civil Procedures lays down times and rules and they need to be strictly followed by all parties. The Courts can raise a lot of money by levying monetary penalties on the parties not following the rules, and more importantly the Courts need to follow the rules.
- Three months at the end of 2019 shall be, “Take A Break 90 days”, no one can file any civil lawsuit. Statute of limitations shall be tolled. We want the country to realize the state of emergency, and the importance of the courts, the lawyers, the law, and the importance of not getting into situations that require court intervention and the utility of private judging and mediation. The noise this will create will serve as a nice wake up to the entire country.
- Attorneys should be allowed to communicate electronically with the Judges, like it is permissible in many countries.
- Courts could start scheduling routine lawyer appearances by phone and skype.
- Judges are amongst the most important people in the country, and attorneys some of the most expensive. Why is it that we can make an online dinner reservation for a table at a restaurant anywhere in the world, but a lawyer cannot make an appointment with a judge and has to waste half a day for a five-minute hearing.
- All state, local, federal governments to set up “Law Simplification and Abolition Commissions”. Every law when enacted should have an expiry date. Now, each law should be looked at and its reason for existence evaluated, and if it is still required then it needs to be rewritten using simpler language and in 75% lesser words.
- Most cases drag on for several years, and don’t end. The practice in courts, and arbitrations to continue hearings and not have them day after day needs to end, since this act alone will have a huge boost to the productivity of the trier of the facts.
- The 10 States with the fastest-growing backlog: Maharashtra, Gujarat, Bihar, Delhi, Goa, Himachal Pradesh, Chandigarh, Meghalaya, Sikkim and Orissa.
- We also need to set up a reward system for the three best courts in India every year. A gold medal, silver medal, bronze medal to the top three courts. They will be judged on the highest efficiency and for clearing up their backlog of cases on a per capita basis. The prize to every single person involved in the winning courts needs to be a lot of money. Nothing would move the needle faster than the awarding of these three medals. The message this sends is also very important. Ideally each State should do this.
- Each State and Union Territory needs to set up a Judicial Efficiency Committee to come up with suggestions on how to dramatically increase the efficiency of the courts and the judicial system. And, their recommendations should be carried out in an emergency fashion.
- The Law Commission of India in its 230th report offered suggestions to deal with the pendency of cases, most of which have not been religiously followed. The suggestions included strict guidelines for the grant of adjournments, curtailing vacation time in the higher judiciary, lesser time for oral arguments, and framing clear and decisive judgements to avoid further litigation. One judge in England tells attorneys present in his courtroom every morning: I have read your pleadings, and during the oral hearing if you are going to add some new stuff, then first I need to be told what lightning has struck since you wrote the brief, and if no lightning has struck, then why was it mentioned in the brief to begin with?” This judge would routinely handle 50 matters in two hours. Very few attorneys had anything else to say beyond what was in the written papers.
- We ask the top Universities of India, think tanks, and the top Consulting Firms of India to independently carry out studies on reforming the civil and criminal justice system of India and release the reports. Please do this to help the country where you operate. In the long run, you will benefit greatly.
- All courts to use the assistance of millions of IT engineers in India to assist with converting the courts into e-courts. Filings, pleadings, notices, judgments, and all documents need to be digitized so that 90% of the papers floating around the court rooms can be discarded to increase efficiency.
- To begin with Courts need to start using technology for five things: a) All pleadings to be filed electronically, b) Case assignment & management, c) File management , d) Docket management, e) Court rulings and communication.
- Given that India is the IT services capital of the world, the Governments Legal portal should be the best in the world. Every kind of law, forms, instructions, laws should be available for the entire world to see. We must not forget that one part of six people in the world live in India, therefore we need to go beyond the call of duty to make the lives of one-sixth of humanity as problem free as we can. Since there are a lot of people in India, we need to do a lot of work to create the best judicial system.
- We need to get rid of preliminary hearings for non-serious offences.
- The bail process has a huge potential of being simplified.
- Prosecutors to be encouraged to settle 99% of their cases and only try one percent. Prosecutors authority to settle cases with alleged criminals to be expanded dramatically, of course with the final approval of the settlement by the judges.
- Quick settlements for criminal cases to be encouraged. Use of community service, and heavy monetary fines for the rich and obscene fines for the super-rich in addition to prison time.
- A country that invented zero should be able to figure out a better way of handling Traffic Fine cases than to clog the court system. The law commission believes that 25% of the 30 million pending cases are Traffic cases. Light offenders who volunteer to work for a non-profit to improve our society should be given a free pass.
- Two million of the 30 million cases are bounced cheque matters. What a shame. The solution is very simple. We need to donate less to temples, buy less jewelry, buy less sweets and honor the cheques we write.
- Thousands of people that have been in prison for alleged crimes need to be released and their cases dismissed because they have already served enough time as warranted for their crime if they had been proven guilty.
- All alleged criminals should be handed a menu of options before their first date in court. This menu should make it clear that if they choose not to do a trial but agree to a lesser charge, the punishments would be far less severe than if they do a trial and lose a trial. The entire system should be set up in a way that it encourages all parties to work together and reach a quick and fair resolution and avoid the clogging of courts.
- Technology will improve society in a big way, and we should methods of electronic monitoring that can substitute for incarceration for certain low-level crimes. No jail, but audio and video surveillance at home. For criminals with no risk to community, we can even allow them to go to work and contribute to the GDP of the country.
Arbitration, Mediation, and Private Judging
- Every case will be sent for mandatory settlement before a private judge if the parties can afford it, or to a government Judge if the parties cannot afford it. Section 89 of the Procedure Code already gives the Judge the power to send the case for mediation or arbitration, what do we have to do to encourage the Judges to use it in at least 50% of the cases?
- Big cases shall not be tried unless they have gone through three rounds of mediation.
- Parties that are well to do and can afford private judges, the courts should coax the parties to go to arbitration and get out of the courts.
- Every single attorney in the country must devote eight hours on one Saturday and volunteer at the courthouse to mediate and settle cases. That is ten million hours of volunteer settlement work. If a case can be settled in 20 hours of work – this contribution alone will resolve 500,000 cases per year.
- Indians are religious people, we request temples, mosques, and gurudwaras to help us with this emergency, and they should use their power to settle cases specially amongst those that follow their religion.
- A new private public-sector undertaking needs to be established now so that it is effective as of January 1, 2019. The life of this entity shall only be for five years and it will evaporate on December 31, 2023. This entity shall be the Urgent Mediation Institute of India (UMII). This institute shall be tasked with clearing 50% off the 30 million backlog cases.
- All retired Army, Air Force, Navy Officers, retired Indian civil services officers, retired judges, retired people, and anyone else who wants to volunteer will be encouraged to volunteer with UMII. The retired judges and law school professors shall conduct a 90-day crash course on law for all the MII volunteers. These volunteers shall render no judgement but will only attempt to assist the parties to mediate and resolve their disputes.
- UMII shall creatively create a system by which they mediate cases and make a big dent in resolving the millions of pending cases. This shall be done by encouraging litigants to come to UMII to resolve cases either at no charge or for an appropriate fee; or by the courts asking litigants to go to UMII and see if they can resolve the matter before the court sets any trials that end up one in one party losing and one winning. By mediation, both parties win.
- As fresh cases are filed in court, a court clerk first sends the case to UMII to see if the case can be resolved and if it is not resolved, only then should it make it back to the court.
- India is losing millions of dollars as private judging, mediation, arbitration is being done for Indians outside the borders of India. We need to ensure that the services are provided within India and we don’t lose this money to countries like Singapore and England. It is a shame that to Indians are travel To Indians are traveling to Singapore to get an arbitration done in front of an arbitration company in Singapore and at times the private judge is also an Indian in Singapore. A dozen lawyers fly to Singapore to get this arbitration done there by gifting more money to foreign countries. What a shame. The first court was set up in 1773 in Calcutta, India. As late as 1994, Singapore’s court of appeals was in England.
- The private judging, arbitration, mediation businesses are set to explode in India. ILA encourages all interested parties to set up more of such businesses so that the availability and quality of these private judging enterprises increases. Startups flourish when they solve problems. Here is a great opportunity for startups to mint money.
Preferred Settlement Days
- Rakhee every year shall be a day of forgiveness for all cases between brothers and sisters, and all cases within a family shall be resolved by the parties on this auspicious day.
- April 14 BR Ambedkar Birthday every year shall be a day of settlements between the parties of a case.
- November 26 Constitution Day every year shall be a day of settlements.
- The Tenth Day of Ramadan every year shall be a day of settlements.
- September 22 every year – the Death anniversary of Guru Nanak shall be a day of settlements.
- The First Sunday in August is an International Forgiveness Day – it shall be a day of settlements in India.
- The twenty days between Dussehra and Diwali shall be dedicated to settling cases.
- Since we like going to religious places of worship so much, next time we go, instead of money, we donate voluntary dismissal papers of a case. God will be thrilled.
Increase Trust in Law
- The WJP Rule of Law Index of 113 countries puts India at number 62. Before we say its not too bad, let us not forget that number 62 is not for a 100 people or 10,000 or a million. It means we are subjecting to one-sixth of humanity to live with a legal system that is worse than that of 61 countries. Time for urgent action.
- India could use about 5,000 new legal aid NGOs. The awareness of rights that people have is dismal and the poor of our society do not have the resources to seek redress for wrongs committed to them. These legal aid societies should educate the unwary and provide them with access to justice, right to counsel and right to a fair trial. Countries that allow contingency lawyering report that the bottom of the pyramid are better served because there is someone willing to take the poor as clients for their self-interest. One of the things we could do better in our country is – good hearted people taking care of the unfortunate people with rich people’s money and not expecting anything from any Government.
- Zero tolerance for corruption in the judicial system. One of the biggest reasons for the huge number of civil cases is because people don’t abide by their promises and contracts and don’t do what they promised to do because there is no adverse consequences for non-compliance. There is no trust in law. If everyone feared judges, courts, lawyers and the judicial system, people would behave and use of courts would be minimalized. And, if people would behave, the GDP of the country would go up. All this requires that judges and lawyers gain Trust.
- The Bar council of India needs to do its fair share. Supervise and monitor law schools a notch higher so we produce even better lawyers. Get tough with lawyers, investigate lawyer complaints, and disbar members who are not servicing their clients, and cheating their clients and clogging the courts unnecessarily.
- Judges and Bar Council need to get tough with unethical lawyers and remind them how tough laws used to be at their inception. The Code of Hammurabi, 1750 B.C., called for the death penalty for proprietors found guilty of watering down the beer they were selling.
- Lawyers need to uplift their image in the country. Good lawyers are problem solvers, and resolve matters. If the courts are busy, why file new cases; figure out a way to resolve matters using alternative methods. The word lawyer in India needs to become synonymous with ethics, morality, caring for clients, and professionalism. Raaj Kumar famous dialogue from Bulundi is appropriate “Elevate yourself to such heights, that for every destined act, God himself asks you, tell me what is your wish?
- When celebrities or rich or successful people are involved in a criminal activity, the Government should publicize the entire case to send a message to all of India. Instead of being lenient on them. They should be tried fairly, and punishment should be fair and just but the entire episode should be used to send a powerful message. This is how we can reduce fraud, and crime in the future. It is hard to sentence a poor man to jail for a year because his family will suffer, but there is no reason not to sentence a rich man to jail. No harm in sending the very rich to a fancy jail with rack rate of Rs. One lakh per night.
- We need the money to settle cases. In a huge number of cases, the amount in dispute is a few thousand rupees. The fancy jail money should be used to resolve trivial disputes and get rid of the cases.
- If one of the 131 billionaires in India gives $1 billion to settle cases, 20 of the 30 million pending cases can be resolved in one month. A smart billionaire can convert the $1 billion into $10 billion by resolving all but 5,000 of the 20 million cases and take over the most meritorious 5,000 cases and prosecute them and win.
Earth has somehow survived for 4.6 billion years; 96% of the universe is missing; we went to the moon 50 years ago; Apollo 11 had two million functional parts; everything we cannot live without today was invented in the last century; an organization “The Ocean Cleanup” has set out to remove 1.8 trillion plastic pieces from the pacific ocean; 147 billion land and sea creatures are eaten by humans every year; Indians produce 20 million new humans every year; cars now drive without a human, we have enough nuclear weapons to destroy all of humanity in one day. Do you really believe that we cannot resolve 30 million cases in the next five years if we set our mind to it and work collectively?
Do you want to be richer than you are now? There is a clear linkage between nations that have better legal systems and their residents’ per capita income. If not for our country, let us do this for selfish reasons. Let us create an urgency environment, let’s resolve to clean up the past. Let us do this to show to the world, to India, and to ourselves that we can. Let us do it for our kids. There is no problem in this world, the only problem is not finding a solution.
Thank you for joining in this emergency movement. If you have more suggestions to extinguish the backlog, please send to Raji@chugh.com and we will add them to this list.
Adapted from the upcoming book “The Next Revolution” by Navneet S. Chugh.