In its 2019 election manifesto, the Bharatiya Janata Party promised to work towards simplifying laws to increase access to justice and make India a hub for arbitration. The government has managed to partially make good on both these promises.
Although legislation has been introduced to fulfil these promises, they are yet to be implemented. Additionally, in the absence of sufficient infrastructure in the lower courts and some high courts, the number of pending cases rose to 43 million in 2023 from 35 million in 2019.
Four years, three law ministers and some controversies:
The four-year period saw three law ministers – Ravi Shankar Prasad from 2019 to 2021, Kiren Rijiju from 2021 to 2023 and Arjun Meghwal, who presently holds the post.
During Prasad’s tenure, four judges were appointed to the Supreme Court, while 18 judges were appointed to the apex court during Rijiju’s stint. Two judges have already been appointed to the SC after Meghwal took charge.
When Prasad was the law minister, virtual hearings and e-filings were introduced in courts across India due to the pandemic. It also saw the introduction of amendments to the arbitration law, aimed at institutionalising arbitration in India.
Rijiju was critical of the collegium system, where judges of the high courts and the Supreme Court recommend candidates to be appointed as judges to the government, which notifies them. Rijiju called the collegium system opaque and alien to the Indian Constitution, which the judiciary strongly disapproved of.
Despite his frequent criticism of the collegium, Rijiju maintained he had good relations with the judges.
Meghwal assumed charge as law minister on May 18, 2023, after Rijiju and his deputy were shifted out.
The story so far:
In its second term, the Narendra Modi government’s law ministry navigated a series of challenges, the toughest being the pandemic. The two-year onslaught of Covid-19 brought the courts to a halt, forcing both the government and the judiciary to find alternative methods to ensure that the people continued to get access to justice.
The pandemic was used as an opportunity to push for digitisation and build more infrastructure, especially in the lower courts. To incentivise digitisation of the courts, the government sanctioned Rs 7,000 crore in the third phase of the e-courts project in the Union Budget for FY 24. The amount was an over fourfold jump from Rs 1,670 crore granted in the second phase of the digital upgrade of courts in 2015. This move may result in better access to justice as video conference facilities will be introduced in all courts.
On arbitration, the government introduced an amendment to the Arbitration and Conciliation Act in 2019. The rationale was to institutionalise arbitration in India so that there is a discipline with respect to the initiation and disposal of arbitration proceedings. The act introduced the Arbitration Council of India to promote and encourage arbitration, conciliation, and mediation and maintain uniform professional standards.
Even though case pendency rose in the four years since 2019, the government introduced two Vivad se Vishwas schemes – one for direct tax litigation pending at various levels in 2020, and the other for the settlement of arbitration disputes with government-run organisations in 2023.
The first version of the Vivad se Vishwas scheme, which was introduced in 2020, resulted in the resolution of more than 148,000 income tax cases and the recovery of about 54 percent of the amount under litigation. The outcome of the 2023 version of the scheme is yet to be made public.
Although judges were appointed to the Supreme Court for about two years from 2019 due to a deadlock in the collegium, the government cleared nine names in one go in 2021 after the stalemate ended. The government has approved 18 appointments to the SC from August 2021 to May 2023.
Unfinished business:
Despite bringing in measures, the process of implementing some of them has been delayed. Although the government introduced the Arbitration Council of India in 2019, it has not been implemented as yet in 2023. As a result, India is far from becoming an arbitration hub. The continued absence of the council has a direct bearing on the ease of doing business, in which enforcement of contracts is a key indicator.
Former Chief Justice of India NV Ramana had suggested the setting up of a National Judicial Infrastructure Authority of India. The NJIAI was to act as the central body in laying down a road map for the planning, creation, development, maintenance and management of infrastructure for the Indian court system.
However, the government did not accept this proposal for various reasons, as a result of which the development of judicial infrastructure in the lower courts continues to rest with the states.
Filling up vacancies in the high courts is a major cause of concern. In April 2023, the high courts had 331 vacancies out of a sanctioned strength of 1,114. With 30 percent vacancies, case pendency is bound to increase. While the pandemic increased the pendency, the vacancies ensured that they did not come down soon.
The government has also not made major changes to procedural laws in the past four years, which would have led to simplification and better access to justice
Discover the latest Business News, Sensex, and Nifty updates. Obtain Personal Finance insights, tax queries, and expert opinions on Moneycontrol or download the Moneycontrol App to stay updated!
