Judicial Efficiency and Litigation Management

The author in this article discusses the concept of judicial efficiency with a new sister concept that is emerging as of now, is the concept of Litigation Management. The concept deals with the management of litigation as distinct from the management of an individual case.

Indian Judiciary being the most potent of all the judiciaries throughout the globe still faces a serious backlog of millions of pending cases. Making the judiciary an efficient system is in itself a herculean task. Litigation Management is a nascent concept still in the making. The concept of judicial efficiency is almost always surrounded by the concept of Case Management. Jurists all around the world, be it from the East or the West, have concentrated on Case Management. A new sister concept that is emerging as of now, is the concept of Litigation Management. The concept deals with the management of litigation as distinct from the management of an individual case.

Definition

Litigation Management is:

  1. Identifying and then classifying case types as also controversy types;
  2. Specifying the depth of procedures as also the appropriate amount of court time to be allocated depending upon the need of a particular type of a case as also the importance and value of the case;
  3. Adapting and moulding procedures as also issuing guidelines for each such type of litigation separately for use of the trial court and even the lawyers;
  4. Arranging and placing before the Court, litigation as per ‘types’ – a kind of grouping-cum-batching;
  5. Ensuring full support services to the court and with no obstruction.

Stated in another way, Litigation Management is a term which basically involves examining the type of litigation and then doing a threefold task:

  1. Developing more tailored procedures, including forms and formats, so that with the aid of this guidance/wisdom – rather than his own thinking restricted by the constraints of traditional procedures – the Judge can proceed with a particular type of litigation at a far greater speed and confidence than he has traditionally done;
  2. Grouping and batching; and
  3. Ensuring optimal loading – and no ‘overloading’ – on a particular Court (Judge).

Judicial efficiency

On June 2017, the Department of Justice revealed to us that:

  • the legislature is viewed as the greatest supporter of suit;
    • 46% of cases pending in courts include the administration (counting open area endeavors and self-governing bodies); and
    • government prosecution incorporates administration matters, questions with private gatherings, debates between two government divisions and debates between two PSUs.

An expected 1,46,000 are progressing cases, 17,000 are offers and 14,000 are sworn statements. Around 1,03,000 cases have no money related ramifications, 20,000 not as much as Rs 1 lakh, 68,500 between Rs 1 and 20 lakh, 15,000 between Rs 20 lakh and 2 crore, 3,800 between Rs 2 to 100 crore and 190 more than Rs 100 crore. Around 32,500 cases have been pending for over 10 years, 58,000 for somewhere in the range of 5 and 10 years, 50,000 for somewhere in the range of 3 and 5 years, 82,000 for somewhere in the range of 1 and 3 years and 4,500 for not exactly a year. Since there isn’t open access, not yet, you should acknowledge my assertion about the veracity of these numbers. [1]

Modus Operandi

To enable litigation to be ‘managed’, as aforesaid, may require a separate statute that would contain Rules that enjoin upon judicial officers to collect data which is followed by the classification, analysis, and drawing conclusions on the basis of the data. It will have to be followed by the High Court to first consider the matter at a committee meeting and thereafter issue specimens, guidelines, instructions, etc. Lastly, the parties approaching the Court have to be required to abide by the procedure established by law for that particular type of case.

Weeding Out Inactive Cases

Judicial case management is one significant measure. Here, the court sets a plan for the case and the appointed authority effectively screens progress. This denotes a crucial move in the administration of cases—the obligation regarding which moves from the disputants and their legal advisors to the court.

While some legitimate specialists, for example, the previous boss equity of Australia, Sir Gerard Brennan, have contended that judges should adhere to legal issues and leave managerial issues to other court authorities and staff, others, for example, Lord Woolf of the UK—who worked widely on transforming the common equity framework in England and Wales—accept that the two capacities can’t be seen independently. [2]

 In our courts, a lot of inactive cases are pending. Many are simply being adjourned for no reason and a few even have a formal order of ‘adjourned sine die’. There are others that are tagged to some other cases. These cases do not require judicial decisions as such and have been inactive for years in all probability because they are frivolous or one party has – in his mind – ‘abandoned’ the claim/contest.

While ‘weeding out inactive cases’ sounds alright in theory, to put it into practice, it needs two rules as part of Case Management:

  1. No case should be adjourned by more than three months; and
  2. If a suit has been pending for more than two years, it will not expect upon a special order – such as awaiting the result of some other litigation – be adjourned for more than two weeks.

In such cases, the Court may direct the appearance of the parties in person as that will exert pressure to bring the case to an end.

The rules also need to provide that wherever a suit (or any proceeding) remains pending for more than one year, the Court makes a note year and also consider what procedural steps would be desirable to ensure speedier culmination. The report should list the injunctions that are in force, and since when, and also preview interim orders and undertakings so that the delays do not, in the end, operate as ‘profit’ to one or ‘coercion’ upon the other. The order on the file can be brief, but if there be any bottlenecks or problems that are identifiable, a detailed note should be prepared and sent to the High Court for filing an appropriate consideration.

To illustrate, many injunctions (particularly, against the government/ municipality/ local development authority) remain pending for years on and end often at an ad interim stage only. A litigation management system (with computer and technical support) will enable instant retrieval and display of data of those cases which have been pending for more than the specified period of time, or where replies have not been filed or service of notice has not been affected, or the injunction is ad interim (still to be confined), etc.

With regular first appeals and writ petitions, matters are admitted and after that, they await their turn in the regular list. In some courts, even suits (after the framing of issues) await their turn in the regular list. The queue can be ling and unwisely and can last for years on end.

An inactive cases list should also be established. Any case in which no party has taken any steps or appeared for a period of six months should be transferred to the inactive cases list. Lawyers can be required to notify their client’s that the matter has entered the inactive cases list. An inactive case may be removed from the list only by an order of the court. After six months on this list, it may be placed before the Court for being dismissed for want of prosecution or for the defence being struck off, unless there is sufficient reason to not do so. One can guess that almost 15 % of the cases can be weeded out.

IAS officer Shubhra Saxena has conceptualized new software for the disposal of criminal cases who is currently serving as District Magistrate of Hardoi, Uttar Pradesh. The software ‘Saakshi’ – Summon Management System, delivers a summons to the witnesses in criminal trials electronically and helps in reducing manual intervention. [3]

Also, some of the great steps have been taken by former CJI Hon’ble Justice JS Khehar in his short span of tenure. In his tenure, the cases pending were 62,791 which were reduced to 60,751 in a very short span of time. [4] What he did was indeed very practical and very effective for a judicial system like that of India. He imposed a heavy penalty on people for filing frivolous cases and treated them with strict measures. He got the executive to appoint more judges to the courts for speedy disposal of cases. He gave the orders to the registry to list all pending PIL’s and writ petitions which could be disposed of easily. Another interesting method he adopted was to list the transfer petition on non-miscellaneous days which takes less time to dispose of. Litigation, which otherwise takes decades to settle, could be resolved in months, or even weeks. Once that is done, the purpose of a typical court setup is efficiently utilized and the end to serve justice is achieved.

Also read Role of Judiciary in Maintaining Rule of Law

 [2] https://www.livemint.com/Opinion/YbrwKToUjjADagh7biAihM/How-to-make-Indian-courts-more-efficient.html

[3] https://barandbench.com/shubhra-saxena-saakshi-summons/

[4] https://www.indialegallive.com/cover-story-articles/focus/cji-js-khehar-judge-hurry