Report No. 253
C. Resistance to Change in the Manner of Conducting Litigation
2.11 While the Bill aims to improve the pace at which litigation is conducted in India, it does not make an effort to fundamentally alter the litigation culture in India. The changes proposed, such as shortening the timelines for filing pleadings and allowing only one forum of appeal, are more cosmetic in nature and do not address the underlying cause for delay. Given that the bill does not propose any real and substantial changes in the Indian civil justice delivery mechanism, it is highly likely that even with the changes proposed, the existing flaws will creep into the Commercial Division as well, defeating the "fast track" purpose of the Commercial Division of High Courts.
2.12 At present, adjournments are granted too frequently and there are no consequences for lawyers who unnecessarily delay the case. In fact, the present culture of charging fees per hearing incentivises lawyers to delay cases. With costs being imposed infrequently and bearing no relation to actual expenses in a case, litigants have little fear of being punished and frequently indulge in delaying tactics.
2.13 This fact has been well-recognised by the Supreme Court in a series of cases, and most recently in 2014 in Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 where the Court took notice of the fact that delays in hearing and passing of repeated orders consumed substantial "judge hours", both during and beyond Court hours, and resulted in an abuse of the judicial process. In this context, it observed: Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, at paras 149-153
"The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part.
In the present setting of the adjudicatory process, a litigant, no matter how irresponsible he is, suffers no consequences. Every litigant, therefore likes to take a chance, even when counsel's advice is otherwise.
And there are some litigants who continue to pursue senseless and ill-considered claims, to somehow or the other, defeat the process of law When the litigating party understands, that it would have to compensate the party which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court time lost is a direct loss to the nation."
2.14 The Court's observations are instructive because they reveal a deep malaise within the conduct of litigation in the civil justice system, where parties control the pace and intensity of litigation and the frequency of adjournments. This stems from a failure to recognise (as has been done in the UK) that adjudication is a public service, which is supposed to enforce rights, and reach a correct decision within the constraints of time and cost.
Just as no person is entitled to the best possible public health service regardless of costs, no person is entitled to the best possible adjudicative outcome regardless of time and costs.27 When litigants delay cases they take up the time and money of the court and hence, the public; the opposing party; and other litigants whose time before the courts' is therefore reduced.
27. See generally Adrian Zuckerman, Zuckerman on Civil Procedure: Principles and Practice (3rd edn., 2013).
Consequently a change in litigation culture is required in India to shift from a litigant-managed to a court-managed litigation process.
2.15 Change in litigation culture will also require much wider changes across the board, but certain improvements can be achieved through targeted and specific modifications in the procedural rules. In spite of amendments to the CPC in 1976 and in 2002, changes in the manner of conducting civil litigation have been minimal and largely cosmetic. Serious reform requires overhauling the rules governing civil litigation and what is being suggested in this Report is a new approach to civil litigation - by substantially changing the procedures for the resolution of commercial disputes.
2.16 Such substantial change is aimed at ensuring that the rules for conducting commercial disputes are simple and effective, replacing the present ineffective and cumbersome procedures. Such change cannot be brought about by merely designating certain courts as "commercial courts" and stopping the reform process at the mere establishment of Commercial Courts. The example of other jurisdictions such as the UK, discussed below, show that widespread procedural changes are required to ensure that commercial litigation is conducted in a speedy, efficient, and proportionate manner.
2.17 If one examines the manner in which litigation is conducted in the Commercial Courts in England or in Singapore, one finds that the key difference between commercial litigation in India and these countries is not just the mere establishment of commercial courts there, but also of the procedure and manner in which commercial suits are conducted.
Everything from the length of pleadings, the manner in which documents are to be submitted, and the consequences of non-compliance with the strictly enforced timelines are followed by parties and counsels. Thus, in the Indian context, much greater normative and practical changes are required in the conduct of litigation and control of dockets, in addition to legislative amendments to counter the problems plaguing commercial litigation.
2.18 While noting the existence of Commercial Courts in other jurisdictions, the procedural provisions in the Bill by and large stick to the paradigm of the CPC. World over, courts, especially commercial courts are undertaking procedural innovation on the basis of technological developments and real life experience to ensure that trials progress smoothly and efficiently. It would thus be worthwhile to examine briefly the civil procedure laws in the UK and Singapore to understand the nature of the changes that are necessary to make the reforms work.