Bringing case-flow management rules back on the radar
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