Converting court case backlogs into treasure troves

‘We rely on the adversarial system’
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Every Chief Justice of India coming into office has the spectre of the legal system’s backlog haunting him or her, as does every senior and concerned member of the higher judiciary. It is an ever present phenomenon — currently, the Supreme Court of India has 82,000 cases, the High Courts over 62 lakh, and the lower courts close to five crore. Nearly 50 lakh cases have been pending for more than 10 years.

It is an adversarial system

It is not that our judges are not hard working or efficient; the great majority of them are. But we are a country with a vast population that is used to thinking that the court will resolve disputes with whoever it may be — neighbour, shareholder, supplier, government, et al. We have one of the lowest judge to population ratios — 21 judges for every million citizens. And we rely on the adversarial system which means that virtually every case sees multiple interim applications during its passage, and plural appeals after the first passage is crossed. We also have shortages of infrastructure and capacity, in terms of brick and mortar, and finance and human resources. Just keeping the judiciary going on functional mode is a Herculean task — so daunting by itself that reform and restructure, while certainly the subject of well meaning and some well-thought-out initiatives, rarely gain the prominence and push to make for system game-changing.

Data governance is one field where sensible classification will avoid repetitive engagement and make for quicker disposal. Appointing retired judges to serve in ad hoc capacity does help to ameliorate the situation to a limited extent. Wider perspective solutions would require a focus on large swathes of litigation, for example, landlord tenant disputes and cheque bouncing cases, to see whether tweaking the law can make it less than advantageous to have the matter taken to court. Compensatory or even punitive costs are commonly used abroad to deter frivolous or unnecessary litigation. We use them rarely since we prize access to justice and want to avoid roadblocks.

The elephant in the room is of course the government. Being a player in nearly half the disputes coming to court, reform will be stunted unless it learns to litigate less and becomes more amenable to settlement options. There is hope on this latter score, but for now, we move to another possibility for reform.

This is the gigantic backlog, the enormous waiting room, with its cavernous vaults and storage shelves and racks bursting with the claims for redress and justice of millions of citizens and causes. Long stay here is by itself denial of justice. Sometimes when the case is dusted for delivery to the judge’s table, the cause is forgotten or less crucial, or the original proponents are in another world, hopefully a litigation free one. But it is this spectre of unfinished business, a too obvious sign of failure of delivery, that haunts judges. There is nothing good about the backlog.

The pitch for mediation

But there may be. Unlikely as this may sound at first, this may be yet another instance of a problem masking a solution. Let us consider the process of mediation. Nascent and fledgling in the 1990s, mediation started to make its mark in 2005 in India, primarily as an adjunct of the court sector. Lawyer led and judge guided, it provided the opportunity for disputants to sit with a trained neutral, in an atmosphere of confidentiality, with no one imposing a result; just a bit of guidance and nudging to make the parties come up with options for a practical, fair and mutually acceptable solution. A focus on long-term interests, some legal realism and a dose of the rather grim alternatives to settlement propel the shift from attacking the other to jointly attacking the problem. The cases come from a swathe of civil and commercial, personal and property, and matrimonial and mercantile disputes.

The results are encouraging. So too is the ready adoption by the Bar of this alternative (now christened as appropriate) method of dispute resolution, as witnessed by the thousands of willing mediators. It has now to move to full-fledged professional avenues, drawing in better usage from business, government and other disputants, and in the process, providing gainful remuneration to practitioners of this new vocation. But certainly, mediation has caught on in the judicial system, and there is hardly any judge who does not speak of its merits and how it is the way of the future.

Getting it to work

So, to get to the point, finally. For the judge the backlog is a burden. For the mediator, it is a treasure trove. In front of us, or rather hidden in courtly dungeons, are the hundreds of cases which just have to be assigned to mediators to handle. And the mediators are there in sufficient numbers and backed by years of experience. All it needs is a simple system of primary identification of these cases, asking parties to choose their mediator or assigning them a trained and experienced one, and ensuring that a reasonable fee is paid for the service. When you compare the cost of mediating a case, for the system and for the parties, it is a fraction of litigating that case. You do not need vast logistical and administrative infrastructure, and you are saved multiple hearings spread over indeterminable time spans. Most cases in mediation take just a handful of sessions; complex ones take more but this is nothing when compared to the boxes of litigative papers to deal with and the swallowing up of calendars. And when it works, the results achieved in mediation outweigh by far anything you can get in litigation — not just a practical solution which both parties accept, but often a restoration of relationships.

So, perhaps it is time we take the keys, rechristen our chamber of horrors as the birthing place for mediations, and apply the principle by which mediators live and work — turning the problem into the opportunity for solution.

Sriram Panchu is a senior advocate and founder president, Mediators India