Friday, September 30, 2005

not ready for prime time

Last week I was in the studio audience for a program called Facade (I suppose it means something else in Hindi) being launched by Channel 7. I attended as a favor to a friend who is a producer on the show -- I gather that a call went out for Amrikans and other foreigners -- but in the end I decided my ideas weren't ready for prime time. Especially because with my virtually nonexistent Hindi I couldn't be sure what I said wouldn't be the exact same thing that the speaker before me had contributed.

But the show -- on the problems with the Indian courts -- did get me thinking.

Some readers (obsessed fans only) will remember that I wrote a piece for Newsweek about the ongoing efforts to reform the judiciary some months ago, in which I trotted out all the usual suspects. India needs more infrastructure, more judges, alternative dispute resolution, etc. But in a discussion with a couple lawyer friends after the show last week, it hit me that the problem may not be so terribly complex after all.

Here's a couple simple solutions--simple in design, though perhaps difficult to implement.

(1) Raise the standard of proof needed to grant an appeal.

Under the current system, high court judges grant stays on the judgments of their counterparts in the lower courts almost as a matter of course. That means that the party with an interest in maintaining the status quo--say, a tenant occupying a property he does not wish to vacate--has every interest in seeing the case through all the way to the Supreme Court. What should happen is this: When the lower court judge rules to evict the tenant, he should immediately have to vacate the premises and that should be the new status quo while he makes his appeal to the higher court. The same principle could easily be applied in other case areas. Otherwise, what is the point of having lower court judges at all? Once the loser lodges his appeal, the higher court judges need to be more circumspect and dismiss more appeals on lack of grounds, which is surely the case in many matters.

(2) Penalize lawyers / litigants for delaying cases.

If a guy turns up in court and says, Sorry your lordship, my lawyer can't show up today because he has a toothache, today most judges give him some harsh words and set another date for the case--maybe a year or two down the road. The same goes for lawyers who come in with dubious excuses for why they need more time to develop their arguments. Judges must be instructed to be more severe in dealing with this kind of nonsense: All a judge needs to do, and I believe this is the practice in America and elsewhere, is tell the counsel seeking the delay that it will not be granted and if he's not ready that's his own damn fault. As an advocate in the studio audience last week wisely pointed out, the lawyers are already accountable to their clients, who will fire them if they're not competent enough to prepare their cases in time for the court date. Of course there are reasonable grounds for delay, but there is NO REASON why delays have to be granted all the time on the flimsiest of arguments. If the litgant gets screwed because he has hired an incompetent lawyer, that is not the concern of the court. No judge makes that a consideration when he sees in front of him a nationally renowned, high-priced advocate for one side and a bumbling, 100 rupee-a-day guy from outside Patiala House representing the other.

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