A look at how vacancies in judiciary hamper ease of doing business

The judicial pyramid has about a hundred courts and tribunals below the Supreme Court where economic and financial issues are adjudicated. In view of increased business, commercial courts have been set up in high courts. Tribunals deal with disputes in the field of income tax, intellectual property rights, power regulation, consumer law and several other sectors. The recent entrant which made waves in the corporate arena is the National Company Law Tribunals (NCLTs). The number of adjudicating authorities has risen proportionately to the growth in business.

Still, the performance of these judicial entities is far from reassuring. It is cited as one cause of worry for ease of doing business. The blame is not entirely that of these institutions. For instance, the vacancies in high courts and courts below are astounding. The 24 high courts had 384 vacancies this month. Those in the commercial hubs had unconscionable numbers: Bombay 33 out of a total 94; Delhi 21/60; Calcutta 22/94. The subordinate courts had around 5,000 vacancies, which is one-fourth of the total sanctioned strength. The lowest rung of the court hierarchy is the point where litigation starts. They include challenges to arbitration awards, bounced cheques, share transfers and corporate frauds, just to name a few. When there are not enough personnel, it is natural that litigation drags on for years causing loss of faith in the system.

The situation in the numerous tribunals is so bad that their bar associations often move the Supreme Court seeking its help to fill up the vacancies. The court passes directions to the governments, which are bypassed on technicalities and perennial plea of lack of funds.

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The state governments are supposed to fund the subordinate courts and the high courts select the judges and staff. However, the state budgets provide 0.2 per cent or less for the judiciary, which is the norm with the Centre also. Thus, the courts function in dilapidated buildings or in leased premises without proper staff or stationery. Recently, the Bombay High Court passed a long judgment describing the distressing conditions in Maharashtra courts. The situation is less-developed states could be imagined. One of the paradoxical results is that few successful lawyers choose to accept judicial posts and the brilliant counsel from the metropolis have to argue before the less-endowed judges.

Those who draft law also contribute to the present plight of judiciary and anxiety in business circles. Some Acts had to be amended several times within a few years to fill loopholes. The Income Tax Act has sections which were amended a score of times. The birth of almost all tribunals, including NCLT, was preceded by long wrangles in the Supreme Court over the validity of the provisions, which gave babus primacy over judicial members. Several sections of the Insolvency and Bankruptcy Code have been challenged in the Supreme Court and hopefully, the questions raised will be answered next year. The provisions of the Arbitration and Conciliation Act required several judicial interpretations over the years.

Judiciary is acknowledged as a conservative institution and its progress in the digital world has been sluggish. The Supreme Court corridors are cramped with almirahs carrying dog-eared files and the rest is scattered on the floor, a veritable trap for the gown-wearing brigade. The paper-less era promised two years ago is yet to arrive. Digital progress in law firms has exceeded that of the judiciary.

Appeals going up to the appellate courts often ride on the huge legal funds available to the litigating firms, especially government entities. The Delhi High Court snubbed National Highways Authority of India (NHAI) several times this year and imposed a heavy penalty in one case for rendering “yeoman disservice” to the object of the Arbitration Act. One judgment read: “We have had repeated occasions to express our discomfort at the multitude of petitions and appeals under the Act. We do not intend to reiterate the same.” Abuse of provisions of other laws is also rampant despite several high courts admonishing corporates and their lawyers. There is no regulator to control frivolous litigation and there is no self-regulation either. Adversarial litigation is the norm and the legal profession nurtures it. These blemishes are well known to those in the field, but the larger interests are sacrificed for short-term gains.