Legal and Judicial Reform in India: A Call for Systemic and Empirical Approaches
| DOI | 10.1177/2277401720140101 |
| Author | Sindhu K Sivakumar,Sudhir Krishnaswamy,Shishir Bail |
| Date | 01 August 2014 |
| Published date | 01 August 2014 |
| Subject Matter | Article |
LEGAL AND JUDICIAL REFORM IN INDIA:
A CALL FOR SYSTEMIC AND EMPIRICAL
APPROACHES
Sudhir Krishnaswamy,*Sindhu K Sivakumar** & Shishir Bail***
Judicial delays and high pendency is a serious problem that has
rule of law and fundamental rights implications. Law and judicial
reform in India aimed at reducing judicial delays and pendency
have met with limited success since they have been almost solely
focused on increasing the number of courts and such other supply-
driven mechanisms without ascertaining the causes of delay. This
paper argues for re-orienting law and judicial reform by engaging
in empirical methods. In so arguing, this paper also exposes the
difficulties in using empirical methods in India owing to the
unavailability of crucial data. It also suggests some non-
conventional solutions for more effective and efficient civil and
criminal justice systems.
I. THE CURRENT APPROACH ........................................................................... 3
II. CIVIL LITIGATION REFORM: ALIGNING INCENTIVES ................................ 8
III. ACCESS TO LEGAL SYSTEM INFORMATION ...............................................13
IV. THE SHADOWY FIGURE OF CRIMINAL JUSTICE ........................................ 16
V. CONCLUSION .............................................................................................. 25
It is argued by many that the General Election 2014 was a vote for
1
development. The election campaign witnessed heated rhetorical debates
*Professor of Law, Azim Premji University; and Visiting Dr. Ambedkar Chair Professor in
Indian Constitutional Law, Columbia University.
** Graduate Fellow, Azim Premji University; Non-Practising Advocate, India; and Non-
Practising Solicitor (England & Wales).
*** Graduate Fellow, Azim Premji University.
1 Prakash Kaswan, India's Elections and the Politics of Development, THE WASHINGTON
POST (May 20, 2014), available at http://www.washingtonpost.com/blogs/monkey-
cage/wp/2014/05/20/indias-elections-and-the-politics-of-development/; Frank Jack Daniel
& Rajesh Kumar Singh, The great Indian election: it's about jobs, REUTERS (Mar. 28, 2014),
ht t p: / /i n. r eu t er s .c o m/ a rt i cl e /2 01 4 /0 3 /2 7 /i n di a -e l ec ti o n- 2 01 4 -y o ut h -j o bs -
idINDEEA2Q0HT20140327.
2
about the appropriate model of economic development for India. Despite
the deeply divisive tenor of these debates, there was, and continues to be, a
surprising alignment between the major parties on the place of legal and
judicial reform as a critical ingredient of the development process. The
2014 Bharatiya Janata Party manifesto had a few overarching objectives in
this regard: one, increasing access to justice; two, reducing delays and
pendencies at the formal courts; and three, making the law more accessible
to the common man. It proposes to achieve this objective through a
predictable list of strategies: increase the number of judges; create more
courts, including special courts for intellectual property and commercial
matters, and fast track courts; encourage ADR, particularly arbitration, Lok
Adalats and tribunals; and in relation to making the law more accessible, do
away with old, unnecessary laws, simplify existing procedures and
3
language, and increase legal awareness. By contrast, the Congress
Manifesto confined itself to broad and general principles: the 'protection of
human rights', increasing diversity in judicial appointments, improving
4
judicial accountability, increasing Gram Nyayalayas and legal aid.
For those familiar with the thinking and policy debates on legal and
judicial system reform, what is striking is how unchanging and
unimaginative the strategies proposed to 'reform' the system are. Indian
policy makers have over the years increased the supply of judges, diverted
and dispersed cases to Alternative Dispute Resolution forums, special
courts and tribunals with little or no improvement of the overall health of the
legal system. Despite the litany of failures, our political and bureaucratic
2Journal of National Law University, Delhi [Vol. 2
2 V.Sambandan & Bhagwati, Sen and India's fight against poverty, THE HINDU CENTRE FOR
PUB L I C P OLI C Y ( Au g. 1 9, 201 3) , ht tp: // www. th ehi nd uce ntr e. com /t he-
arena/article5038021.ece; Lalita Panicker, Two States: Kerala, Gujarat and their
de velo pme nt, HINDU ST AN TI ME S, (Apr. 21, 201 4), a vai lab le at http://
www.hin dusta ntime s.com /elec tions 2014/ opini on/wh ile-g ujara t-is- inves tor-f riend ly-
kerala-triumphs-in-social-indices/article1-1210341.aspx.
3 In substance, the BJP's proposals on legal system reform for 2014 are mostly identical to
what it proposed in 2009. See Bharatiya Janata Party, Lok Sabha Election 2009 Manifesto,
available at http://www.bjp.org/images/pdf/election_manifesto_english.pdf (last visited
Aug. 1, 2014). The only major additions we see in 2014 are one, the focus on making India
into a global arbitration and legal process outsourcing hub, and two, the objectives related
making legal information more accessible, including the popular promise to “undertake a
comprehensive review of the legal system to simplify complex legislations – converge
overlapping legislation, as well as remove contradictory and redundant laws.”
4 Indian National Congress, Lok Sabha Election Manifesto 2014, 45-46, available at
http://inc.in/images/Pages/English%20Manifesto%20for%20Web.pdf (last visited Aug. 1,
2014).
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