Opinion » Lead

Updated: May 16, 2013 02:35 IST

A to-do list for the new Law Minister

Anirudh Wadhwa
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Among the areas of reform that need urgent attention are appointment of judges, working of the judicial system, and restoring the independence of government law officers

With only a year to go before the Lok Sabha elections, the new Law Minister has his work cut out for him. On paper, Kapil Sibal is perhaps the United Progressive Alliance’s best man for the job. As a lawyer, he understands legal technicalities; as an experienced hand, he also understands the working of the government. There are several pressing reforms that demand immediate action by the Law Ministry, most of which have unfortunately been either completely ignored or lie unimplemented.

In part, this is attributable to the frequent shuffling of Ministers that the Law Ministry has seen under the UPA government in the last five years. Some blame must also be attributed to the difficulty in getting the necessary political consensus for the more contentious reforms. In the next one year, it would be wise for Mr. Sibal to set modest, achievable goals; and focus on the most pressing reforms. Four key areas of reform that require immediate attention are — appointment of judges; working of the judicial system; modernising key economic legislation and restoring the independence and dignity of the law officers of the government.

Judicial Appointments Commission

The appointment of judges to the Constitutional Courts is presently done by the collegium of judges of the High Court and the Supreme Court. The controversies surrounding the proposed appointment of Justice P.D. Dinakaran, and the impeachment of Justice Soumitra Sen show that this system of appointment has surely failed. Recent political consensus also appears to be against the collegiate system of appointment of judges, and in favour of it being replaced by a Judicial Appointments Commission (JAC).

It would however be naïve to believe that the mere setting up of a JAC, without anything more, can be the solution to the present problems plaguing the appointment of judges. The Ministry must identify transparent and well-defined criterion based on which the JAC would function and exercise its powers. It is also important to note that the setting up of a JAC cannot be done through legislation alone. The collegiate system of appointment of judges was instituted by the judgments of the Supreme Court in the three Judges cases; and to set up a JAC and in effect reverse the holding in that decision, it is imperative to “remove the foundation or the basis” on which the judgment was passed. Since the Judges cases have rendered the word “consultation” (with the judges) in Articles 124 and 217 of the Constitution to mean a virtual “concurrence,” it would be essential to pass a constitutional amendment to amend the text of those Articles, lest the validity of the JAC be open to challenge on this ground. The UPA government does not have the numbers to pass such an amendment by itself; and it would require a consensus of parties across the political spectrum to do so.

Pendency of cases

The Indian judicial system is overworked, understaffed and bursting at the seams. Pendency of cases in the High Courts and the Supreme Court is at an all-time high. Many have argued that the solution to this is to increase the number of judges — we have approximately 11 judges per million persons, as opposed to the global average of around 50 judges per million. However, the judge-population ratio is, strictly speaking, irrelevant to understand the issue of pendency. What is relevant is the judge-pendency ratio, the impact of which has sadly not been examined in policy debates. More importantly, an empirical study conducted in 2010 (Kannan) revealed that the problem with the working of the judicial system lies elsewhere. It concluded that (assuming no fresh cases are filed) it would take approximately nine months to clear the entire backlog of cases in Tamil Nadu. Most States in India had somewhat similar figures, and only a few needed more than two to three years to clear their entire backlog. These numbers demonstrate that the problem of pendency is not insurmountable, and the answers to streamlining the working of the judicial system are not to be found in resolving pendency by increasing the number of judges. They lie elsewhere.

National Litigation Policy

The trouble with the working of the judiciary can be traced to the existing institutional structure. Most cases in the courts are fought by or against the state or its agencies, and serious efforts must be made to transform the government into an efficient and responsible litigant. A well-drafted National Litigation Policy was mooted under the aegis of Veerappa Moily in 2010, but remains largely unimplemented. Similarly, provisions for imposition of actual costs on litigants would reduce frivolous law suits, and cut down on unnecessary adjournments. The executive, the legislature and the judiciary need to work together to implement these institutional changes, and the lead must be taken by the Law Minister.

While the larger reforms of the legal system are carried on, it would also be useful, as a more immediate measure, to improve the quality of justice delivery in high value commercial cases, especially given the strong co-relation between foreign investment and a stable, predictable and efficient legal system. The Commercial Division of High Courts Bill appeared to be a step in the right direction but suffered from serious drafting flaws and had to be scrapped in December 2011 despite having been passed by the Lok Sabha. Salman Khurshid, the Law Minister who spearheaded this Bill, had promised a revised version of the Bill, but it has remained in cold storage. It is hoped that it will be taken up again.

There are many important economic laws that require the immediate attention of the legislature. The proposed Companies Bill 2012 that seeks to replace the Companies Act, 1956 is pending vote in the Rajya Sabha, having been passed by the Lok Sabha. Key amendments to the Arbitration and Conciliation Act, 1996 which reduce judicial intervention and streamline the process of alternative dispute resolution, have not been passed, despite a consultation paper being prepared under the stewardship of Mr. Moily. Similar amendments are required to further strengthen the regulatory framework in the insurance and banking sectors — both of which are presently governed by antiquated legislation.

The law officers of the government, the Attorney General, the Solicitor General and the Additional Solicitor Generals, do not merely serve their clients, but owe an important duty to the court and perform critical constitutional functions. The Constitution in Article 76, in fact, enjoins the President to appoint “a person who is qualified to be appointed a Judge of the Supreme Court” to be the Attorney General. In the recent past, several law officers appointed under the UPA government have compromised the dignity of their office while the upright ones have preferred to quit.

Institution eroded

The involvement of two law officers in the recent Coalgate controversy has tarnished the credibility of not just the individuals in question, but of the offices they hold. The erosion of this institution does not augur well for Indian democracy. It might be useful to consider designating the JAC which is proposed to be instituted for appointing judges to the Constitutional Courts, to also appoint the law officers. This will not only insulate their offices from unnecessary political pressures but also reduce any charge of the government’s management of sensitive cases before the Constitutional Courts.

Mr. Sibal is an old hand with a hard road ahead of him, and it is hoped that he will make the most of his position as Law Minister. The confidence of the public in the justice delivery system has been severely eroded, not just due to recent events but also due to the various structural and institutional weaknesses that have crept into the present system. H.M. Seervai said that “the Constitution confers power, but it does not guarantee that the power could be wisely exercised.” Equally, it can be said that the Constitution confers power but it gives no guarantee that it will be worked by men of high character, capacity and integrity. If the Constitution is to be successfully worked, an attempt must be made to improve the political atmosphere. It is hoped that the new Law Minister will be up to the task that is cut out for him.

(Anirudh Wadhwa is a New Delhi-based lawyer)

More In: Lead | Opinion

The new Law Minister is himself facing charges on Vodafone Deal. What
could one expect from such ministers?
Law Ministry, owing to its importance, needs a dedicated focus.
However, Kapil Sibal has also Telecom ministry under his charge. This
will divide his attention, if at all he pursues positive work as the
above article has outlined.
I totally agree with the view of respected author that frequent
reshuffling of Cabinet Ministers might jeopardise the entire
consistency and planning efforts. See the case of Railways Minister,
who was made to resign, for whatever charges. The new minister will be
guided by his own ideas of development and programmes and schemes
undertaken by previous minister might find little acceptance to him.
This will lead to wastage of public funds. In short its the public
that suffers.

from:  Sunny
Posted on: May 17, 2013 at 00:02 IST

The survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality. Dharma (righteousness; sense of public duty or virtue) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it.....

from:  raushan
Posted on: May 16, 2013 at 22:25 IST

What makes the esteemed editor think that JAC will solve the problem.
As soon as the party in power at centre is allowed to appoint judges the judiciary (the only impartial institution , only to a certain degree) would also start singing Governments tune.
Havent we seen how brazenly the PM, HM combination appointed their loyalists to the post of CVC(Kurien), CEC , CBI directors in the past 10 years. This institutions CBI, CVC and CEC have become a joke today.
What makes you think this JAC will not do the same to judiciary?
Does the editor want to make judiciary another joke.
And just as a fellow reader pointed out, Election after election crooks from Congress have been elected, scamming India every other day, do we imply representative democracy has failed and move to presidential democracy or dictatorial rule?

from:  aniket
Posted on: May 16, 2013 at 20:15 IST

If the eroded trust of the judiciary is to be restored each step in the career of a judicial professional needs to be revisited, not just the appointment. They include salaries and benefits, performance-linked reward and punishment system (increment, promotion/reversion, transfer, dismissal/impeachment), retirement benefits, etc. The performance could be specified in a Service Level Agreement specifying the number of pending cases, max duration of a case, number of adjournments for a case, number of complaints of litigants, etc. The retirement age should be the same as in any other profession and no extension should be given. The commissions should be handled through the senior serving professionals of the judiciary, not the ex-Judges. Given his zero-loss stand on 2G, we can only expect to be fooled by Kapil Sibal in his expected one-year tenure as Law Minister though.

from:  VMN
Posted on: May 16, 2013 at 17:10 IST

The major reforms that our Law Minister need to make is to make the
legal system of India more transparent, efficient, swift, proactive,
flexible, lucid, affordable and accessible.

from:  Akshay Dhadda
Posted on: May 16, 2013 at 15:35 IST

Our judicial system is custodian of constitution and important pillar of democracy. It plays very vital role to safeguard common people's right. But huge back log, few controversies related to some of serving and retd. judges at higher courts raised doubts in the mind of common man. Now Sibal has been appointed as law minister but to expect any thing from chair seeker is just a false expectation. Recently court has given many land mark decision from scams to safeguard rights of people but at the ground level our babus are very weak in its implementation, and for smooth functioning of judiciary man power is very important.

from:  Kunwar Mithlesh shaktawat
Posted on: May 16, 2013 at 13:26 IST

The article is appreciated but it is like hitting the head on a wall.
NOT with the UNFORTUNATE choice as the Law Minister

from:  Alok Sen
Posted on: May 16, 2013 at 12:33 IST

Can an individual Law Minister"s decision in appointment of Judges, be the law of the land. When the judgment itself needs careful consideration, how the appointment of those judges rest with individual political minister. THERE must a committee of Important persons including retired judges, under the Presidentship of Law minister ,can be a good
decision,however PM/FM/SOnia are also to be in the committe for a correct decision.

from:  vaidya
Posted on: May 16, 2013 at 12:11 IST

We Indians, have a tendency of hoping for the good irrespective of numerous letdowns by the government. New law minister has a clear task cut out for him. Apart from the issues mentioned in the article, there are numerous areas which the law minister need to focus. Law minister has to make amendments to the existing laws for the speedy trial of cases in constitutional courts. There should a definite time frame within which trial of a case take place. There are many outdated laws like IPC, CrPC which need amendments to suit the contemporary society. All cases are not of same priority, case trials should be based on the priority of the case in terms of probable impact of the judgment on people of this country.

from:  ranjithp
Posted on: May 16, 2013 at 11:48 IST

Now the UPA government has got the best Law minister, because As a lawyer, he understands legal technicalities; as an experienced hand, he also understands the working of the government

from:  tony
Posted on: May 16, 2013 at 11:35 IST

The author has drawn the picture smartly by profession (Saving the lawyer community face) but can we agree with these lines- The controversies surrounding the proposed appointment of Justice P.D. Dinakaran, and the impeachment of Justice Soumitra Sen show that this system of appointment has surely failed? How many times we choose or elect the public Representative knowing this they failed but we don't think so democracy failed. Give the space to judges to recheck the own created system rather saying failed. Lawmaker or law custodian both are responsible for the present situation. We don't expect much from 'Law minister'.

from:  Dipak Ratnani
Posted on: May 16, 2013 at 11:15 IST

Excellent case made by the Editor. Hopefully the Law Minister will act on these useful suggestions.

from:  R Swarup
Posted on: May 16, 2013 at 11:13 IST

Every minister in a democracy is a servant of the people who has the prime responsibility to do everything that can lawfully be done within his or her jurisdiction in the interest of the people at large. But today in India, the ministers who belong to the Congress party, having hypothecated their loyalty to the family that virtually owns their party in order to stay in office, forget the needs of the people to attend to which they have been put in office through democratic processes. The "to-do list" of the new Law Minister is therefore likely to be drawn up in the context explained above.

from:  K.Vijayakumar
Posted on: May 16, 2013 at 10:59 IST

One question, hasnt Sibal already been a Law minister?? What exactly did he accomplish then. The author has got one thing right though, Sibal is a lawyer. An advocate for the UPA to provide bizarre defenses for its reprehensible crimes on general public and the constitution.

from:  Vijay
Posted on: May 16, 2013 at 09:39 IST

vaida or postponment should be limited and a time frame to be set for atleast civil cases to restore public faith in judiciary..court timings and working days also to be changed to align with modern times abolishing british legacy

from:  ramesh
Posted on: May 16, 2013 at 09:21 IST

Welcoming an eminent lawyer as Law Minister, there are number of big
tasks for Kapil sibbal to complete in one year.
As the case of JAC, there should not be any political interference in
the appointment of judges.
Regarding the pendency of cases, i have views same as the editor. More
judges are required & separate fast track courts should be there for
special category of cases as in the case of delhi gangrape has been
done. It would enhance the efficiency of judicial system as more
specialized judges & lawyers would work on the cases.
Cases by/against the state & agencies should be handled in fast track
manner as they have the max. contribution in the pending cases

from:  rahul gupta
Posted on: May 16, 2013 at 08:37 IST

One has to admit that Mr Sibal has been shouldering extra weight for sometime now. Human Resources, Communications and now Law. He happens to inherit the mess created by his predecessors. Add to this he has to cover up for the guffaws made by the likes of the court jester Digvijay Singh.
When one will see his progress report at the end of 5 years, lot of work but no achievement. He has not been given the time to achive anything.
Pity a capable person is being wasted - Human Resources Congress Style.

from:  mani sandilya
Posted on: May 16, 2013 at 05:20 IST

Kapil Sibal has been at the core of UPA masterminds consistently
subverting any reform to make law an instrument of democracy. So he
knows too much of the legal system to enable true reform.

from:  kaliappan
Posted on: May 16, 2013 at 02:47 IST
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