Where is the Law?

“Did you know that the Supreme Court of India works for 185 days and the High Courts work for 210 days in a year?” asked China. Wafers did some quick arithmetic and said, “That means India’s apex court is on a holiday 50% of the time and the high courts take off 40% of the days in a year”. China smiled. He looked smart, thought Wafers. “Hey, tone down. You could be hauled up for contempt of court” said Rinku stuffing in another bite of pasta. It was all that China could do to keep his cool.

“My foot,” he bawled. The gang was stumped. The yuppie engineer-to-be from IIT had studied at one of India’s top residential schools and was known to be sober. Clearly something must have upset him. Said China, “Look I peeped into the Internet and found that as of March 2004 there were 22,000 cases before the Supreme Court, 33 lakh cases before the High courts (of which 41% were overdue by five years) and 228 lakh cases were hanging fire in subordinate courts (of which 30% were pending for more than five years).” Wafers recalled her senior who in audit was ever preoccupied preparing an ageing schedule of debtors!
Rinku (to Wafers’ anguish he was now sporting a John Abraham hairdo) sipping his coffee remarked, “According to the Guinness Book the most protracted lawsuit took place in India. A `temple keeper (a k a Mahant) filed a suit in Pune in 1205 A.D., and the case was decided a full 766 years later, in 1966!” As Wafers laughed, Rinku chided, “This is not the average time taken by the Indian courts for deciding cases. Normally a case takes between seven to fifteen years to be decided”. Wafers remembered the Bofors story that had broken out in 1986 tarnishing the fair image of Rajiv Gandhi. Nothing had come of it even after 20 long years.
“How are things elsewhere in the world?” she asked. The captain brought in potato chips that China loved. Munching one China said “Let me give you an example from the capital market”. Wafers sat up. The Sensex had crossed 8400 and she was interested. China was saying, “Back in 1995, the derivative trader Nick Leesson brought the 150 years old Barings bank to its knees through his reckless trade in the derivatives market. Today he has not only completed serving his prison term; last heard of he had written a book on the subject which was made into a movie”. Wafers could not miss the irony. In India the cases relating to the 1992 scam were still on. It was another matter that the principal protogonist Harshad Mehta was no more!
Rinku, although appreciative of contempt of court, decided to recount a first hand experience. A few months back he had to frequently visit a lower court in connection with a criminal case in which a close friend was falsely implicated. “In most of the hearings, the main agenda is to fix the date of the next hearing. If at all they serve any purpose, it is to identify the hidden athletic talent in the country!” Wafers sat up interested. “As soon as one’s name is called out by the court clerk, in the most disrespectful way imaginable, one has to push through the milling crowds which block the entrance and make a fifty meters dash to stand in front of the judge. Any delay would result in a severe reprimand! And having folded his hands in front of the magistrate, one is told when to come for the next hearing”!

China smiled popping another potato chip into his mouth. And said, “When trials take place, one can make out very little of what is going on. Lawyers speak in hushed tones. The magistrate’s voice cannot be heard. Worse still when there is so much backlog pending in the courts, our courts do not even put in a decent eight hours of work a day. Cases keep dragging forever. But the lawyers do not seem unhappy”.

Wafers asked, “Why is this so?” China responded. “Perhaps it has, in part, to do with the way the fee is structured in India. Unlike in the US where lawyers work on an incentive based system, here, they collect fees per document generated or per court hearing”. Wafers thought, “Oh piece rate workers.” Rinku remarked, “So the more the number of hearings, the more the fees they can collect”. Wafers murmured, “For the client, a variable cost”. China closed out, “Did you know that the lawyers in Tamil Nadu went on strike during the summer of 2002 to protest against government moves to dispose of cases speedily?”

Wafers agreed that the lawyers were a privileged lot. After all they were the only professionals who didn’t have to pay service tax. Or may be like the lawyer turned politician, P Chidambaram had once wisely remarked, “they are not required to pay service tax because they do not render any service.”

China turned to Wafers and asked “What would you suggest?” Wafers didn’t think for long. “Judges must be paid handsomely. There must be incentives for judges to finish cases. We don’t want kangaroo courts but cases must be expeditiously dispensed with. The courts must work in two shifts”. Rinku who had done some research on the subject said, “A national Commission has recommended that there should be 50 judges for every 10 lakh citizens. But we have only 10 judges for every 10 lakh citizens.” Wafers nodded. Her professor had once said, “In modern society, speedy and efficient legal processes are very important. Without a sound legal system, it would be difficult to safeguard property rights, impossible for businesses to function, tough for the innocent to defend themselves and difficult for the guilty to be taken to task. Unfortunately, our outmoded legal system is a major stumbling block in the reform process. The guilty can prolong cases taking advantage of loopholes in the system”.

China said, “Despite its lacunae the legal system has stood up in India. But the law must not only work. It should also be seen to be working. You cannot progress as a nation unless the populace has the fear of law in its mind.”