THREE core fundamental policy gaps that are clogging the courts of India

No civilisation can exist or prosper without the rule of law. The rule of law cannot exist without a proper justice system. In India, criminals have a free reign as justice system is used as a tool to make victims succumb into unfair settlements or withdrawals. Unfortunately, the Indian justice system has gone caput and remains clogged with over 3+ crore cases pending in courts due to following core reasons.

Policy gap 1 — Only in India there is zero deterrence to perjury

a. In India, perjury law is taken very lightly. 99% of cases are full of lies, deceit and mockery of justice. Affidavits in India do not serve much purpose. There have been various judgments and cries from all levels of judiciary but in vain.

b. Perjury makes any case 10x more complex and consumes 20x more time to adjudicate. It is akin to allowing a bullock cart in the middle of express highway. It is nothing but an attack on justice delivery system. Historically, perjury used to be punished with death sentence and considered an equally serious crime as murder.

c. This is against the best international practices and does not make economic sense for India.

Policy gap 2 — India has no equivalent laws such as the U.S. Federal Rule 11 enacted in 1983 (as amendment in 1993) to curb the explosion of frivolous litigation.

The entire provision of rule 11 of U.S. federal rules can be summarized in the following manner:

It requires that a district court mandatorily sanction attorneys or parties who submit improper pleadings like pleadings with

All developed countries like UK and Australia also have similar laws to combat frivolous litigation.

Police gap 3 — Only in India the lawyers are barred from contingent fee agreements under Bar council rules

Economic modelling suggests that — contingent fee arrangements reduce frivolous suits when compared to hourly fee arrangements. The reasoning is simple: When an attorney’s compensation is based solely on success, as opposed to hours billed, there is great incentive to accept and prosecute only meritorious cases.

At least one empirical analysis concludes that — “hourly fees encourage the filing of low-quality suits and increase the time to settlement (i.e., contingency fees increase legal quality and decrease the time to settlement).”

Negative impact of the 3 policy gaps

1. Conviction rates in India are abysmally low below 10% whereas internationally between 60% — 100%.[1]

a. Japan — 99.97%

b. China — 98%

c. Russia — 90%

d. UK — 80%

e. US — between 65% and 80%

2. Globally the 80%-99% cases get settled before trial but India its actually opposite because

3. The contingent fee and tort cannot be enabled till such time the fraternity of lawyers can be relied upon for ethical and moral conduct.

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Easy solution to complex problem

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Policy 1 — Restricting perjury and making it a non-bailable offence will resolve 50% cases immediately
(i.e. 1.5 crore cases within 3 months)

India must truly embrace “Satyam ev jayate” and make perjury a non-bailable offence. All lawyers and litigants should be given 3 month’s notice to refile their pleadings or settle the cases. They would have to face the mandatory consequences of false evidence or averments later found to be untrue.

There needs to be a basic expectation reset in Indian courts litigation — the filings are correct, and the lawyer is responsible for prima facie diligence and candor before courts. The role of judiciary is not to distinguish between truth and false but to determine the sequence of events, fix accountability and award penalties. Presenting false evidence or frivolous arguments must be seen as separate offence on its own.

At a minimum IPC 195(1)(b)(i) must be removed that states the following –

“No Court shall take cognizance- of any offence punishable under any of the following sections of the IPC (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court”

Because:

Policy 2 — Sanctions on lawyers to streamline the perverse incentives that plague Indian justice system

The courts in USA are mandated to compulsorily sanction lawyers for various professional misconduct in litigation (Federal rule 11 of civil procedure) like:

Remedies and sanctions for lawyer’s misconduct can be categorized into three groups.

Policy 3 — Contingent Fee and Tort Law making judiciary 3x efficient.

(needs perjury law as discussed above to unlock)

In India Lawyers spend more time in making the case complex and lengthy based on “dehari system” while the western counterparts earn far more money by genuinely solving cases and creating real values for the country. The market economics based on judicial policy on regulating legal profession and ethics in India is however geared towards permanently clogging the system. 3 of the 4 stakeholders benefit by making the litigation never end.

There is a dire need for the system to be re-incentivized wherein the legal profession can generate 10x more value for the country in catching and penalizing law abusers. This in turn will also attract and create more talented lawyers because then they will be investing more time in investigating and preparing the cases to win.

Making perjury a non-bailable offence and rules for mandatorily sanctioning lawyer mis-conduct will unlock the contingent fee and tort law in India.

Allowing contingent fee for lawyers have four principal policy justifications

Firstly, such arrangements

Secondly,

Third

Fourth

Three other reasons to justify unlocking of contingent fee:-

Why contingent fees reduce caseload:

Lesser cases better filing

Complainants get genuine advice about chances of winning. They do not file unless they get lawyer’s buy-in.

Lawyers simplify case and only allege charges that can be sustained.

Faster case proceedings

Case withdrawals

Conclusions

With 3+ crore cases pending and a dysfunctional justice delivery there is a mass exodus of Ultra High Net worth Individuals (UHNIs) from India. There is an absolute urgent need for above reforms before the situation turns into a complete banana republic.

It is an absolute embarrassment and national shame to allow Indians to be blatant liars even in courts. Business and survival in India today is a race to the bottom just because there is no bar on falsehood and having corrupt values, it is near impossible to survive without being part of the same culture.

It is prayed that even more stricter laws be enacted than just global norms such that Indians can be trusted globally to never lie. It’s not just about Indian courts but they could be counted as the most truthful race even in foreign lands and command high respect globally.

Restoring justice delivery

Economic benefits of reform in perjury, contingent fee and legal ethics

1. Higher quality of litigation work.

2. Attract better talent to the profession due to higher profitability.

3. Create more jobs in the economy.

4. Offer higher pool of qualified people for judiciary.

5. Drastic reduction in corrupt or criminal activity due to fear of law.

6. Unlocking of trillions of dollars of wealth/resources stuck in litigation.

7. Better investment climate due to more reliability in business transactions.

8. Higher reliability in products and services.

9. Access to justice for all.

10. Restoring faith in judiciary and honour in being Indian.

Further reading

1. Perjury: Important Case Laws Showing How Seriously It is Taken in India! (lawyersclubindia.com)

2. LAW OF PERJURY- (Second Edition) — Indian Bar Association

[1] Comparison of the conviction rates of a few countries of the world | A wide angle view of India (wordpress.com)

Founder & CEO— Diro Labs