The curious case of ‘case management’
Its time for judge led litigation
system to be actively seriously considered as a means of tackling increasing
pendency.
Recently there were reports
of the announcement of a joint conference of the chief ministers
and the chief justices of the various High Courts called by the Chief Justice
of India. That the conference is being held within one year of the previous
conference as against the usual practice of two years is a good indication of
the importance of the topic.
Concerns about the functioning of
our judicial process have been simmering for quite some time. There have been
innumerable studies by the Law Commission and academics highlighting the
failure of the judicial process as currently followed in practice. The travails
of our adjournment ridden litigants led court process is now widely documented
- in research papers, media reports and art forms.
One of the radical measures that was
being considered a few years back was the idea of 'court led litigation' or a
'judge led case management’. The
245th Law Commission Report,
‘Arrears and Backlog: Creating Additional Judicial (Wo)manpower’ released in
July 2014 refers (in foot note 14 on page 8) to a consultation paper on case management
which can be accessed here.
What is judge led case management? In essence it means that:
§
As soon as a case is filed the judge will decide on the nature and level
of complexity of the case. This can be changed later on by the judge.
§
Before commencement of proceedings, the judge, registry and the parties
will agree on a schedule for filing of evidence.
§
Judge shall have complete visibility on the stage-wise progress of each
case. Information Technology tools to be used for this purpose.
§
After completion of admission of the petition and denial of documents
the judge may refer the case to ADR mechanisms
§
If ADR mechanisms fail then evidence to be recorded before a
commissioner
§
Cases to be called for hearing on completion of evidence being recorded.
The number of adjournments to be granted would be restricted as per law
A court led litigation process has
now been in place in US, UK and Australia (with local variations) for more than
a decade - and all indications are that it has been a resounding success.
This may prompt the detractors of
such a system to say, "What works in those developed Westernised countries
will not work for us, because:
1. The social profile of litigants require the system to be lenient
with timelines for justice to be truly served
2. Very often it is the state that seeks adjournments due to lack
of manpower and other capacity
3. A shortage of judges means that adjournments are a necessity for
both sides, more often than not"
For a moment let us give some
thought to what are the enablers for a judge-led litigation process to be
effectively implemented:
§
An in-depth study of the type of litigants and reasons for adjournment
seeking so as to identify cases for which such a system would not be suitable
§
More judges to be appointed so as to allow them to dedicate more time
for each case
§
Additional support staff to be appointed for court management
§
Investment in Information Technology tools and infrastructure
None of the above is beyond our means.
Perhaps it is the means of making an informed decision that is slowly becoming
beyond us.
The recently
enacted Commercial
Courts Act has introduced the judge led litigation process. What should we infer
from this? That high stakes commercial disputes between more or less equally
well stocked litigants are more important to be dispensed justice promptly?
Lets hope not. Lets hope this is only the first of the many nature of disputes in which a court led litigation process would be introduced.
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