Virag Gupta practices at Supreme Court of India. He is Member of National Task Force on Interlinking of Rivers constituted as per directions of the Supreme Court. He is a former IRS Officer and has worked with Ernst and Young
It was in July 2015 that the then Law Minister, Sadananda Gowda suggested that the National Litigation Policy would be implemented soon. Two years having gone by, there is no news about the same, and the government itself is the litigant in nearly half of the 2.6 crore pending cases. Due to a government being the biggest litigant and its possibility of intervening in the appointment of judges, the National Judicial Appointments Commission Act (NJAC Act) was declared unconstitutional by Supreme Court in October 2015.
The UPA government had drafted the National Litigation Policy, 2010 to make the government litigation “responsible and efficient”. However, the same was a failure due to its generic nature lacking specific penalties for violation. It did not have any mechanism to measure its impact, and the “Empowered Committees” apparently failed to ensure smooth functioning of the policy.
On the other hand, Australia has been using a Litigation Policy that has positively affected its legal sector and there is a lot to learn for India.
On many occasions, the Supreme Court has directed the state governments to appoint law officers in a fair and an impartial manner. The government during its initial days appointed 18 law officers, who have been representing it before the Supreme Court and different High Courts. However, the functioning of law officers has been a controversial subject, as Attorney General Mukul Rohatgi appeared for private parties in the Kerala liquor matter. Regarding the Supreme Court ruling on prohibition near the national highways, the Attorney General gave an opinion to state governments stating that bars were not covered by the Supreme Court judgment. Interestingly, the Supreme Court itself negated his suggestion through its Orders on a later date. However, it seems to be holding the fort on demonetisation and Aadhaar.
PM Candidate Modi in his election speeches outlined the need for having fast track trial of cases against politicians in order to have Parliament free from criminals. However, PM Modi could achieve nothing on this front, as the Supreme Court tersely said that politicians or even elected lawmakers do not constitute a separate class and their cases cannot be expedited. In a turncoat situation, Supreme Court in April 2017 issued a notice to the government on the same issue.
The Election Commission has also recommended fast-track trial of cases against elected lawmakers. It remains to be seen whether the government, which made a law for resolving commercial disputes faster, will understand the essence of democracy and do something similar for cases against politicians.
A total of 1,175 Acts have been repealed by the government under a continuous process of weeding out archaic laws. The Law Commission in its four reports had suggested repealing of 88 Acts. However, even as the numbers cited by the government look impressively high, most of the laws repealed are amendment or apportionment acts, which individually had no bearing on the system.
It is correct that a stable legal system requires fewer laws for better implementation. India will do good if it follows on Trump’s policy of repealing two laws for every new one made.
We have 29 all-India tribunals, but there exists no legal definition of “tribunal” in any constitutional or even statutory law. Even as the definition of a tribunal was provided by the Supreme Court judgment in National Company Law Tribunal (NCLT), it became clear to the government that a higher number of tribunals could not solve the problem of pendency.
Tribunals have also borne the brunt of being the parking lots of retired judges and bureaucrats, who often have little expertise in the area. Overreach by tribunals became yet another facet of government’s decision to reduce the number of tribunals.
The Finance Act this year merged several tribunals even as their areas of law were different. The merger and consolidation being done through the Finance Act has also raised several questions, because now a whole lot of powers, be it conditions of service, appointments etc., will come in the hands of the government, without any parliamentary oversight.
As per the directions of the Supreme Court, the government sought a report from the Law Commission on the aspect of Uniform Civil Code. The Commission immediately came up with a questionnaire on Uniform Civil Code, even as it was incumbent upon the Commission to suggest a Draft Code.
The questionnaire received criticism from multiple fronts, as it brought the question of triple talaq into the ambit of debate on the Uniform Civil Code.
This is one project that the government started and has implemented really well. Instead of inviting applications for appointment of notaries through post, the government has standardised the process as well as made it completely online. This project also paves the way for opportunities for startups to make their mark in the legal sector, as was also mentioned by the Prime Minister in the sesquicentennial celebration of the Allahabad High Court.
But the Law Ministry has failed to address the malaise and need for issuance of advisories, which have no legal enforceability due to lack of clauses on punishment. The term ‘advisory’ has no meaning under any law made by the Parliament and is often issued by different departments on subjects over which they have no control. The uselessness of advisory is visible from the fact that an advisory on the protection of cows was issued by Ministry of Home Affairs, while states have not been using the Advisory on Taxi Aggregators issued by the Ministry of Transport.
This law made it compulsory for High Courts to form specialised Benches within High Courts to hear high-value commercial matters. The reason was to have faster dispute resolution in commercial matters, which would have affected India’s ranking in Ease of Doing Business Index. However, as this process was only a re-allocation within the present resources, it is resulting into longer litigation period for the average litigant.
The Amendment to the Arbitration Act became a major step to boost the business-friendly image of India. NITI Aayog and the Indian Judiciary made a joint effort in this regard, as they conducted an international conference over the same. However, the discussion found several lacunae in the Amendment, which will require another amendment to remove these. This is certainly not good for a stable legal regime!
The government faced its first challenge on foreign investor sentiments after an adverse ruling on Minimum Alternate Tax by the Authority on Advanced Rulings (AAR). Interestingly, it was a foreign investor who had approached the AAR on the issue, and the decisions of AAR are final and binding. However, the government created an escape route by forming a committee headed by Justice AP Shah. The committee gave its recommendations in favour of foreign investors and for non-levy of MAT. Acceptance of recommendations of the Committee saw the government lose out more than Rupees 600 crore, which it could have otherwise gotten through the levy of MAT.
Failure of Judgement
The government has patted itself on the back on the subject appointment of judges for no reason. More than 400 vacancies still exist in our High Courts, out of the total sanctioned strength of 1,065. Appointment of judges has been the biggest failure that the government could have had. After having drafted the NJAC Act, which failed the scrutiny of the Supreme Court, the draft Memorandum of Procedure for the appointment of judges is stuck in the tussle between the government and the judiciary. Both the government and Supreme Court went into backroom negotiations, even as they had invited suggestions from the public for reforming the Collegium.
The 21st Law Commission of India was constituted in September 2015, with former Supreme Court Judge BS Chauhan as its Chairperson. Justice Chauhan was appointed even as he was heading the Cauvery Water Disputes Tribunal. The previous Law Commission in its tenure of three years had given 18 reports. The present Law Commission has given five reports. Lately, the Law Commission’s recommendations have come under attack from advocates, who claim that the report paves the way for violation of their rights.
Judgeship has been declined by many on account of low salary received by a Judge. After the bonanza given by Seventh Pay Commission to government functionaries, the salary of judges of High Courts and Supreme Court judges got a 200% hike. The latest position puts the salary of Chief Justice of India at Rs. 2.8 lakh a month.
The emotional quotient was sought to be satisfied with the attempt to rename High courts of Bombay and Madras. However, the renaming bill introduced by the government is pending in Parliament and no talk of renaming has been made recently.
Action on Call Drops was the biggest achievement mentioned by the then Telecom Minister Ravi Shankar Prasad, who is the present Union Law Minister. However, the government must share the blame for the agony of consumers as it failed to draft the proper regulation, and forcing consumers to pay in a situation where they have received no service at all.
Thereafter, having lost in the Supreme Court, the government failed to file a review. Kapil Sibal argued the matter on behalf of Cellular Operators Association of India (COAI) before the Supreme Court, in spite of the fact that he himself was the Union Telecom Minister and worked on the issue of Call Drops. Mukul Rohatgi, the Attorney General for India countered the COAI while representing Telecom Regulatory Authority of India (TRAI) before the Supreme Court.
However, Senior Advocate Mukul Rohatgi has earlier acted for COAI against the Government of Rajasthan in (SLP 4042/2013) before the Supreme Court. A news report also cited Justice Nariman having earlier been the counsel for COAI and hence should have recused. While the government has been pro-active on governing through Ordinances, the pan India problem of Call Drops did not affect the Government to consider an immediate relief.
The government itself has said that the right to privacy is not a fundamental right. Aadhaar is becoming the biggest violator of privacy, as informed consent is absent, while millions line up to get freebies, which now include SIM Cards. The compulsory nature of Aadhaar is itself against the Order of the Supreme Court, which is choosing to remain a silent spectator.
The government is now considering to bring in a new data protection law as a constitutional bench of the Supreme Court will be hearing the breach of Privacy by Whatsapp, while it still remains to be answered if privacy is a fundamental right. After quantifying the overall litigation data through National Judicial Data Grid, the government, still plagued by the inadequate data on government litigation, has now formed Legal Information and Management Based System or LIMBS. In 2015, the Union Law Minister had requested other ministries to start uploading their litigation data on LIMBS. Developed in consultation with the Ministry of Railways and NIC, the current status of the System is unclear.
The E-Courts project has been lagging behind since its initial days. The Judiciary is one organ of the government that has the least amount of digital penetration, with the majority of it being restricted to the High Courts and the Supreme Court. The status and inadequate planning is visible from a Vidhi report, which states, “As Phase I was nearing completion, the plan for Phase II of the E-Courts project was concluded by the E-Committee of the Supreme Court in January 2014. The plan was approved by the Government of India in August 2015 for a budget estimate of Rs. 1,670 crore. This budget estimate, which is for Phase II only, is nearly double of the original budget estimate for the E-Courts project over three phases (Rs. 854 crore) and also more than seven times the original budget estimate for the Phase II (Rs. 225 crore).” The judiciary has, for the longest time, complained about the lack of budget that is given to it every year. Phase II of the project was scheduled to start in October 2014, but it received the budgetary approval by Cabinet only in July 2015.
Public Records Act, 1993, mandates no public record can go out of India without prior permission. Its violation is a jail term accompanied with the fine. However, even after framing the National Email Policy, government officials continue to use email of private companies such as Yahoo and Google. NIC on its part has not been able to provide a government email to around 50 lakh government employees for official communications, but at the same time is bullish on the idea of digital India.
The technological age is posing new challenges to the legal regimes across the globe. Aiming to be a trendsetter through Digital India, the government will have no option but to counter the challenges by making laws applicable to the 21st century. The same requires an overhaul of archaic laws and introducing new ones. The revival of the system of Parliamentary Committees, which assist the government on different issues, is the need of the hour.
Rules in relation to Statutory Laws need to be drafted simultaneously in order to have better synchronization as well as to have absence of legal vacuum. The government is duty bound to follow the National Litigation Policy and reduce pendency of court cases.
The finality to the question of appointment of judges, incorporating merit and transparency, is the most important facet that will determine the legal report card of the government. The blockade due to the political reasons has not helped the government, even as its intent may be good. It remains to be seen if the deliverables promised will be completed before 2019, or the political masters are seeking a next date in the court of the people.
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