Bring­ing case-flow man­age­ment rules back on the radar

Business Standard - - BUSINESS LAW - SURYA PRAKASH

In May 2016, Gu­jarat joined 21 other states that have rules on case-flow man­age­ment. Hi­machal Pradesh was the first to pro­mul­gate one in 2005. Even though such rules have been around for long, and in so many states, it is sur­pris­ing that case flow man­age­ment rules are not spo­ken of in the dis­cus­sions on im­prov­ing ju­di­cial per­for­mance.

Case-flow man­age­ment, in its essence, means that a judge or an of­fi­cer of the court sets a time-ta­ble and mon­i­tors a case from its ini­ti­a­tion to its dis­posal. The court would con­trol the life cy­cle and events in a case rather than leav­ing it to lit­i­gants or their lawyers. Case flow man­age­ment rules spec­ify time­lines within which cases should be dis­posed of.

It was a pe­ti­tion by the Salem Ad­vo­cates Bar As­so­ci­a­tion in 2002 to the Supreme Court chal­leng­ing the con­sti­tu­tion­al­ity of amend­ments to the Civil Pro­ce­dure Code that is the gen­e­sis of case flow man­age­ment en­ter­ing the dis­course on ju­di­cial re­forms in this coun­try.

A com­mit­tee headed by the chair­man of the Law Com­mis­sion came up with model draft rules for case man­age­ment to be fol­lowed in the high courts and sub­or­di­nate courts. Case-flow man­age­ment rules in some states cover the sub­or­di­nate courts only, while some cover only civil mat­ter. A few high courts have pro­mul­gated these rules us­ing their power un­der the High Court Rules, while oth­ers have used the Civil Pro­ce­dure Code and the Crim­i­nal Pro­ce­dure Code route.

The guid­ing prin­ci­ple across the board has been lay­ing down time­lines for dis­posal of cases and recog­ni­tion that dif­fer­ent types of cases need to be han­dled dif­fer­ently. The time­lines for dis­posal in most states range be­tween nine months and two years, de­pend­ing on the type of case.

The num­ber of tracks (clas­si­fi­ca­tion based on sub­ject mat­ter of dis­pute or na­ture of of­fence) is also mostly four for civil cases and five for crim­i­nal mat­ters. Pun­jab and Haryana have just two tracks for civil cases. What is in­ter­est­ing though is the com­pu­ta­tion of this time limit. While Andhra Pradesh, Te­lan­gana and Kar­nataka reckon this from the date of ap­pear­ance or deemed ap­pear­ance of the de­fen­dantre­spon­dent, in Pun­jab and Haryana, it is from the date of the is­sues be­ing framed, and in Tamil Nadu it is from the time the for­mal­i­ties stage (no­tice, sub­mis­sion) of the case is com­pleted.

Dis­posal within time­lines is sought to be achieved by mov­ing the for­mal­i­ties part of the process to the Reg­istry and in some states by mov­ing the record­ing of ev­i­dence to Com­mis­sion­ers ap­pointed for this pur­pose. Many of the rules also ex­plic­itly recog­nise how the prac­tice of ‘call­ing’ (‘hazri’) for cases is a waste of pre­cious ju­di­cial time, and some of the states re­quire that two types of cause lists be pre­pared – one for cases that are still in the serv­ing of no­tice and fil­ing of sub­mis­sions stage, and other for record­ing of ev­i­dence, cross-ex­am­i­na­tion, hear­ing and ar­gu­ments. Only Kar­nataka lim­its the num­ber of cases to be heard in the open court (eight for cross-ex­am­i­na­tion, and two for ar­gu­ments).

With a view to dis­in­cen­tivis­ing lit­i­gants and lawyers from un­nec­es­sar­ily pro­long­ing or de­rail­ing the process, the draft rules by the Law Com­mis­sion had also sought that costs should in­vari­ably be im­posed (with rea­sons to be recorded for costs not be­ing im­posed) on the re­spon­si­ble party, and ini­ti­a­tion of pro­ceed­ings for per­jury (with rea­sons to be recorded for not so ini­ti­at­ing). There has been a mixed re­sponse from the high courts to this. While some have only re­laxed the need to record rea­sons for not im­pos­ing costs, oth­ers are si­lent on costs.

Pen­dency of cases has not re­duced even af­ter the in­tro­duc­tion of these rules. For ex­am­ple, in Kar­nataka, which en­acted the rules in 2006, as per data from Na­tional Ju­di­cial Data Grid, about 46 per cent of the civil cases in the sub­or­di­nate courts are pend­ing for more than two years. The sit­u­a­tion is no dif­fer­ent in other states.

There is a se­ri­ous need for in­tro­spec­tion as to why these well-mean­ing rules have not been able to make an im­pact. One rea­son could well be that the time­lines set are nowhere near re­al­is­tic in the cur­rent set up. In fact, in many states the rules seem to be a ver­ba­tim re­pro­duc­tion of the draft rules of the Law Com­mis­sion. For ex­am­ple, the rules of Guwa­hati and Mad­hya Pradesh High Court re­tain words like ‘these time­lines are il­lus­tra­tive and the high courts shall make de­tailed rules as ap­pli­ca­ble’.

The rules also need to be re­ex­am­ined from the point of view how in­cen­tivised par­tic­i­pants from the ju­di­ciary are to com­ply with them. In al­most all the states, the rules re­quire the pre­sid­ing of­fi­cer of the court to give a monthly re­port to the judges on the track-wise stage­wise pen­dency. There is a need to in­clude this in the other dis­clo­sures that are made pub­lic by the court. The func­tion­ing of the ju­di­ciary is too im­por­tant for us to let these case-flow man­age­ment rules go the way of so many of our well-mean­ing leg­is­la­tions that have failed in their im­ple­men­ta­tion.

Case-flow man­age­ment rules in some states cover the sub­or­di­nate courts only, while some cover only civil mat­ters

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