Reform of the Indian Civil Justice System:
Limitation and Preservation of the Adversarial Process
by Hiram E. Chodosh, Stephen A. Mayo, A.M. Ahmadi & Abhishek M. Singhvi
NYU Journal of International Law and Politics, 1998

I. Introduction

The Indian civil justice system resembles its common law *2 counterparts. [FN1] It features a coordinate, pyramid structure of judicial authority, [FN2] emphasizes formal procedural justice dominated by litigants of equal status engaged in adversarial processes, [FN3] and provides binding, win?lose remedies. [FN4]

*3 The practical application of this system in India has achieved mixed results. [FN5] Some observers have recently emphasized the positive role played by a strong Indian judiciary in increasing the accountability of democratically elected officials. [FN6] Yet, others believe the adversarial procedural justice system in India has failed from its inception. [FN7] As India celebrates its fiftieth year of independence, and as it pursues economic liberalization efforts, it is time to assess its civil justice process and to facilitate the design of long?needed reforms. [FN8] Based on the views of a broad array of legal experts in India, [FN9] this Article provides both an assessment of the practical operation of the *4 Indian civil justice system and a set of recommendations designed to meet the challenges of reform.

The Indian civil justice system features a civil service of court administrators, an independent judiciary, a rich supply of professional legal talent, and a modern procedural code. However, the system also exhibits a general failure to manage effectively the dispute resolution processes of a democratic, socially diverse, and newly market?oriented society. [FN10] Specifically, inefficient court administration systems, excessive judicial passivity in an adversarial legal process, and severely limited alternatives to a protracted and discontinuous full trial frustrate several goals of the adversarial process itself. Inefficiency in court administration denies timely access to legal dispositions. Excessive party control places those seeking legal redress in an unequal position because respondents can abuse and delay the resolution procedures with impunity. Finally, the unavailability of alternatives to litigation clogs the system. Many cases awaiting judgment are no longer contentious, and long?awaited judgments are often difficult to enforce.

The typical life?span of a civil litigation presents a sad picture. Records of new filings are kept by hand, and documents filed in the court house are frequently misplaced or lost among other paper. Lawyers crowd the courtroom and wait for their cases to be called. Even when called, judicial attention is frequently deferred by innumerable adjournments: the witness is not available, the party is not present, the lawyer has not arrived, or a document is not yet available. When the case is heard, a judge orally summarizes testimony for a court reporter. There is little likelihood that this judge will be the same one to issue a decision because judges are transferred more quickly than legal dispositions are made. Judges are so under?paid and over?worked that they often adjourn and delay the preparation of a case, if only to put off the demands of reaching a decision.

Streamlining procedures which enable the judge to frame the issues are rarely effectuated. Likewise, sanction power to *5 impose costs for frivolous conduct is seldom exercised. [FN11] Interim injunctive relief is routinely granted, but long delays in hearing the contentions of those enjoined persist. Commonly made interlocutory appeals fracture the case into many parts and effectively stay the trial. The absence of alternatives to litigation makes a full, discontinuous trial necessary, regardless of how long a full trial may take. Once a judgment is reached, the truly hard work of enforcement and execution begins. These compounding problems engender despair among pessimists and overwhelm even dedicated optimists, while public tolerance appears to be waning.

As a daunting symptom and aggravating cause of these problems, widespread and profound backlog and delay [FN12] currently undermine the fundamental priorities of a law?based society. Backlog and delay in the resolution of civil disputes in India erode public trust and confidence in legal institutions, and act as significant barriers to India's chosen path to social justice and economic development. The inability to enter final legal decisions within a reasonable time renders state action functionally immune, turns obligations to perform contractual duties into effective rights to breach with impunity, and devalues remedies eventually provided. In sum, the inability to resolve disputes in a timely manner eviscerates public and private rights and obligations.

India is not alone in such a condition; backlog and delay plague a wide variety of legal systems. [FN13] Nor is this problem new. [FN14] Nowhere, however, does backlog and delay appear to *7 be more accentuated than in modern?day India. [FN15] The Indian civil justice system serves the interests of a diverse and exploding population, the largest democracy and seventh largest national market in the world. [FN16] This formidable responsibility, combined with the recent drive toward greater political accountability in public administration and post?1991 market reforms, places ever?greater pressure on the civil justice system. [FN17] *8 An estimated backlog of 25 million cases [FN18] and reported delays in some urban areas in excess of 20 years [FN19] currently undermine the effective enforcement of substantive civil and commercial rights. [FN20] Therefore, backlog and delay have broad political and economic implications for Indian society. [FN21] If India fails to face and meet these challenges, it will not be able to realize fully its legal commitment to democratic and liberal *9 economic policies. [FN22] All agree that this crisis calls for the careful adaptation of workable solutions.

This Article proposes reforms which integrate three sets of recommendations in order to improve the delivery of civil justice in India: court administration, case management, and consensual dispute resolution. By adapting and integrating managerial and alternative consensual mechanisms, the recommended reforms paint a new picture of the life of a civil dispute, while drawing heavily on features of the process already in place. Under these reforms, new filings will be properly classified, and computerization will help with court management of cases, procedural events, and documents. New case management mechanisms will draw on pre?existing procedures by requiring the parties and their lawyers to agree on the issues to be determined by the court. These mechanisms will begin to move preparatory processes outside the courtroom. The courts will expunge from their dockets fruitless matters that clog schedules. Courtrooms will become less crowded, and lawyers will be liberated from endless waiting and be available to do more work to advance the progress of their cases for more clients. The rule for framing the issues in dispute will go into effect, and the resulting movement to a more continuous (less fractured) proceeding will make it more likely that the same judge who hears testimony will decide the dispute. Increasing and strengthening consensual alternatives to litigation will reduce backlog and improve the chances for the resolution of disputes.

These reforms limit the adversarial model by increasing both judicial intervention in the early stages of claim preparation and the availability of consensual alternatives that offer a wide variety of calibrated resolutions. Early judicial control, case management, and related procedural streamlining mechanisms provide significant checks on party?controlled litigation practices. The creation of consensual means of resolving disputes, including judicial settlement, early neutral evaluation, [FN23] *10 and private mediation, confines the use of the full adversarial trial. Along with court management reforms, however, these limits on the traditional Indian litigation process simultaneously seek to preserve a more effective adversarial process for those matters that cannot be consensually resolved.

Such efforts to limit and preserve the adversarial model of the Indian civil justice process are currently under serious consideration in India. National legislation enacting new case management and consensual dispute resolution mechanisms has been proposed in the Parliament, [FN24] and the High Court of Gujarat is considering implementation of the pilot project described in this Article.

This Article is organized according to a problem?solution sequence. After a brief description in Section II of the study *11 upon which this Article is based, [FN25] Section III surveys the *12 breadth of the backlog and delay problem and then assesses the practical operation of the Indian civil justice system. Section IV examines the authors' set of recommendations, recently endorsed by a broad?based group of Indian legal experts. The Conclusion suggests that ostensibly paradoxical efforts to limit and preserve the adversarial civil justice process are both complementary and necessary.

II. History and Methodology of the Indian Legal Study [FN26]

A. History of the Indian Legal Study

1. Genesis of the Study

The genesis of the study on which this Article is based derives from two sources: the first is the dramatically successful reforms, [FN27] led by former Chief Justice Ahmadi, in the administrative handling of matters pending in the Supreme Court of India; the second is Indian legislation providing procedural authority for both case management functions (e.g., the framing of issues) [FN28] and consensual dispute resolution mechanisms (e.g., conciliation and mediation). [FN29]

In October 1994, Former Chief Justice Ahmadi commenced dramatic reforms in the handling of all matters pending in the Supreme Court. A comprehensive computerization program was instituted; a uniform classification system, according to the subject matter of cases filed, was created; and the filing, listing, classification, and allocation tasks in the Supreme Court's registry was computerized. These initiatives *13 dramatically reduced the Supreme Court caseload from approximately 120,000 cases in October 1994 to 28,000 cases in September 1996. [FN30]

The remarkable success in the Supreme Court led Former Chief Justice Ahmadi to seek to duplicate these efforts in the High Courts and lower courts in mid?1995. He decided that, in order to accomplish such reforms, it was necessary to determine the feasibility of reforming the practical operation of the civil justice system. Such a task, he concluded, would require a joint effort between foreign experts in legal system reform and Indian judges, lawyers, and court administrators who were familiar with the practical problems currently facing the civil justice system.

2. Indo?U.S. Engagement and Study Groups

In pursuit of his goal, Former Chief Justice Ahmadi engaged ISDLS [FN31] and organized a National Judicial Academy ("NJA") Study Group [FN32] to prepare a comprehensive study for the reform of the civil justice system (ISDLS and the NJA Study Group, together, will hereinafter be referred to as the "Indo?U.S. team"). ISDLS drew on the expertise of its many delegates, including judges, lawyers, court administrators, and scholars, all of whom had been directly involved in similar and successful reform efforts in U.S. federal courts and in the state of California, as well as in the adaptation of case management [FN33] and consensual dispute resolution mechanisms [FN34] to *14 several foreign legal systems. [FN35] The NJA Study Group consisted of leading Indian jurists, lawyers, and court administrators who also coordinated the study in the states of Maharashtra (Mumbai), [FN36] Andhra Pradesh (Hyderabad), Tamil Nadu (Chennai) [FN37] and West Bengal (Calcutta), with each state represented by a separate and independent State Study Group consisting of ten to thirty?five members, including judges, lawyers, *15 and court administrators of both the High Courts and the lower courts. [FN38]

3. Completed Phases of the Study

In February and March of 1996, the study began with three weeks of conferences conducted in the four states by the Indo?U.S. team and the state jurists, lawyers, and court administrators. The purpose of this first phase was to determine the practical operation and the problems of the Indian courts and the civil justice process, and to learn what the practitioners believed were the solutions to those problems. The ISDLS held conferences with over 200 judges and 500 lawyers in Delhi, Mumbai (Bombay), Calcutta, Chennai (Madras), and Hyderabad. These visits included urban and semi?urban venues, such as Thane (outside of Mumbai) and Chingleput (outside of Chennai), in order to assess the political support for change and the obstacles to reform, as addressed by the primary participants in the legal process. The ISDLS issued a report on the commentary and the many papers received during these conferences. [FN39] This phase of the study revealed, among legal opinion leaders and practitioners, a strong conviction in the need to address backlog and delay, a sound belief that effective solutions could be designed, and a deep commitment to active involvement in the conception and implementation of the reforms.

Following this first phase, the NJA Study Group conducted a detailed three?week study in June 1996 of court administration, case management, and alternative dispute resolution functions and mechanisms currently used in the United States. Based on this study, the ISDLS prepared a report [FN40] which was followed by a detailed report by the NJA Study Group. [FN41] The NJA Study Group concluded preliminarily that these foreign processes were potentially adaptable to meet the needs of the Indian civil justice system, and selected a variety of potential solutions to be demonstrated before a larger audience of legal experts.

*16 In September 1996, the four State Study Groups conducted seminars (in Mumbai, Chennai, Hyderabad, and Calcutta) on the functions and mechanisms determined to be potentially adaptable to the Indian court system. The purpose of these seminars was to receive public commentary on the adaptability of internationally adaptable solutions to backlog and delay. State judges and lawyers attended the seminars presented jointly by the Indo?U.S. team and the State Study Groups. The seminars consisted of authoritative papers by the ISDLS, the NJA Study Group, and the State Study Groups, [FN42] lectures, demonstrations, and commentary. The findings of these seminars were reported in the ISDLS reports on Mumbai, Chennai, [FN43] Hyderabad, and Calcutta. [FN44] These seminars concluded with unanimous recommendations to adopt, with modifications, case management and consensual dispute resolution mechanisms. Remarkably, even though there was no interaction among the four independent study groups, each group reached the same conclusion, namely support of the suggested reforms.

Also in September, leading American court administrators from the U.S. Eighth and Ninth Circuit Courts of Appeal and the U.S. Federal Judicial Center presented an intensive, five?day training course in administrative monitoring and case?tracking. Attending the seminar were 100 court administrators selected from each of the High Courts. The seminar produced a national model for the administrative oversight of the handling of all cases in the courts.

In November 1996, the ISDLS held a one?week conference in Delhi with the NJA Study Group to finalize the specifics of an Implementation Plan. The conference participants prepared a joint Indo?U.S. preliminary draft of the Implementation Plan, [FN45] and determined a specific number of practical steps to be taken before the recommendations could be implemented. These steps included initiating necessary training for court administration, case management, and non?mandatory consensual dispute resolution under pilot projects, and *17 broader implementation of these reforms, including mandatory consensual dispute resolution through the adoption of High Court rules and the pursuit of other related procedural measures.

In all, the study generated numerous products: nine reports by members of the Indo?U.S. team; various papers on the practical operation of the Indian and U.S. legal processes; lectures; demonstrations; private and public commentary from a wide array of judges and lawyers on the adaptability of U.S. models to Indian conditions; and the unanimous recommendations of the NJA Study Group and the State Study Groups to implement adopted reforms in court administration, case management and consensual dispute resolution over the short and long term. [FN46]

B. Methodology

The study in India applied an innovative methodology of comparative assessment and reform. This methodology has been used successfully in legal studies of a wide range of legal systems. [FN47] Facilitated by U.S. experts, these legal studies are designed to meet the local needs of the host country and to avoid common problems caused by ignorance of foreign systems, poorly explicated comparative methods, crudely adapted *18 models, and the propensity to project and impose U.S. ideas and attitudes.

Four aspects of the methodology employed in India have proven critical to the success of these studies in meeting local objectives and contrast sharply with most prior U.S. involvement in foreign legal reform: [FN48] the collaborative nature of the *19 methodology; the breadth of cross?national awareness applied; the practically?oriented, functional, and systemic approach to comparative legal process; and the careful adaptation of successful models to meet local objectives and needs.

The first and most significant aspect of this methodology is the joint nature of all of its legal studies. Close collaboration between the ISDLS and each national legal study group [FN49] ensures accuracy in the assessment, domestic receptivity to reform, and local accountability for implementation. The authors believe that meaningful reform encounters foreseeable opposition to changes in the traditional legal process and the practice of law, and to accommodate and address such opposition each reform must be justified according to domestic (and not foreign) objectives. The joint involvement of local experts in the design and implementation of innovative models creates a greater likelihood that the reforms will operate effectively. Finally, joint authorship at both the assessment and reform phases of a legal study provides a check against the imposition of foreign ideas on host legal cultures. Therefore, the joint nature of the study is critical to the ultimate success of the reforms. [FN50]

*20 The second aspect of this methodology is the broad awareness derived from and applied to each study. This awareness entails an appreciation of the practical operation (and cultural expectations) of national legal processes, common contemporary problems, successful innovations in dispute resolution, and a methodology of adaptation and implementation of reform models. [FN51] The collective expertise and the working methodology applied in the Indian study were a product of over fourteen years of foreign legal experience in nearly thirty countries, including several successful legal assessment and reform projects. [FN52]

A third feature of this methodology is the theoretical development and practical application of a functional and systemic approach. [FN53] While taking into account the social, economic, and political underpinnings of the civil justice system, this study evaluated both the practical operation of the functions performed within the legal process and the ability of actors, and the institutions in which they operate, to perform such functions. [FN54]

Finally, adaptation was an equally important feature. The ISDLS legal studies expand the existing and indigenous processes of developing countries to meet current needs. Reforms are either readily integrated into an indigenous dispute resolution process or derived from an existing, culturally accepted dispute resolution mechanism. Attention to strong receptivity factors permits the adaptation of reforms without significant disruption to the pre?existing legal culture. This strategy ensures that the reforms can be effectively implemented *21 and practiced with minimal resistance from participants in the traditional legal process. [FN55]

In the application of this methodology, the Indian legal study exhibited close collaboration, a broad comparative awareness of common problems and solutions, a practical application of a functional and systemic approach to reform, and a carefully adapted implementation plan. First, this reform plan culminates nearly a year of intensive, cross?national study in collaboration with U.S. experts in legal process reform and over 80 Indian legal experts from four states and the country's capital. Through joint reports, authoritative papers, lectures, demonstrations, observation, commentary, conferences, seminars, and comprehensive legal reporting, these experts carefully designed the reforms based on an appreciation of the practical operation of the civil justice system. Second, the Indian legal study has grown out of an awareness that India is not alone in addressing these problems. Other countries with comparable problems have implemented or considered similar reform measures. Third, by paying close attention to functional and systemic variables, this reform plan builds on the sound foundations of the country's legal system. Both managerial interventions and consensual alternatives to the courts are based largely on pre?existing procedural authority and reform projects in a growing number of courts. Finally, the two phases of implementation are carefully crafted to minimize negative receptivity factors. The reform plan seeks to preserve and build upon the contemporary model of the Indian civil justice process, while simultaneously limiting and extending it. The general reform design, which is derived from U.S. reforms also under consideration in Britain [FN56] and soon to be implemented *22 in Egypt, [FN57] is jointly and carefully adapted to the indigenous Indian legal experience. [FN58]

III. An Assessment of the Indian Civil Justice System

Governments have tended to express their related commitments to privatization and human rights through changes in substantive law, leaving procedural and institutional reforms to follow more slowly. [FN59] Changes in commercial law and policy have encouraged more economic activity, including *23 criminal economic conduct, but justice systems have responded more slowly to the systemic challenges [FN60] posed by the increasing quantity and complexity of disputes arising from this activity. [FN61] As a result, backlog and delay are on the rise. [FN62] This problem is spurring consideration of reform models that expand beyond European models of formalized procedural justice. [FN63]

Backlog and delay are among the most significant problems in the administration of civil justice [FN64] in countries *24 throughout the world, [FN65] including Chile, [FN66] China (PRC), [FN67] the Czech Republic, [FN68] Italy, [FN69] Egypt, [FN70] Hungary, [FN71] the United Kingdom, [FN72] and the United States. [FN73]

*25 Though difficult to measure and evaluate, a variety of factors may contribute to backlog and delay. [FN74] Procedural causes of backlog and delay include: [FN75] (1) free access for civil claimants to the courts with incentives for frivolous, party?controlled litigation processes (including initiation without cause, extension without excuse, motions without merit); [FN76] (2) discontinuity, repetition, and fragmentation of the legal processes, without early or accountable judicial interventions such as court administration and case management mechanisms; [FN77] and (3) *26 limited opportunity or incentive (especially early in the process) for consensual settlements, including limited venues for alternative dispute resolution processes such as mediation. [FN78] Systemic causes derive generally from insufficient investments in human and institutional resources to perform allocated procedural functions. [FN79]

In order to fashion practical solutions to backlog and delay in India, Indian and U.S. legal opinion leaders endeavor to understand the interrelated functional and systemic causes of the problem. [FN80] Some of the causes thus identified are either *27 beyond the control of the judiciary (such as the growth of the Indian population, poor communication systems between the court and the litigants, the expansion of legislation and regulation, and the resulting explosion of litigation), [FN81] beyond the scope of procedural reform (such as implementation of privatization policies or improvements in legal education), or beyond judicial authority. [FN82] For interrelated political and economic reasons, other causes, such as the low judge to case ratio [FN83] and the need for more judges, [FN84] are not likely to be addressed. Furthermore, not all causes require change; some such as the principle of access [FN85] reflect positive, central tenets of the Indian concept of civil justice. But many other causes are within reach of new measures, and the study focuses its primary attention on those features. Accordingly, this Article concentrates on those problems that can be effectively addressed by the reforms, such as the critical functions of the civil justice process and the systemic allocations of responsibility to different institutional and non?institutional actors to perform such functions over time. [FN86]

*28 The functional and systemic characteristics of the contemporary Indian system can be traced back to the adversarial British model of civil justice process from which it evolved. [FN87] The British model may be distinguished by its laissez?faire emphasis on party?controlled litigation processes, its adversarial nature, an emphasis on formal procedural justice, and limitations on available legal remedies (generally confined to binary win?lose legal outcomes). [FN88]

The formal civil justice process in India is administered by a politically independent [FN89] judiciary under a unified federal system, [FN90] which applies both federal and state law. [FN91] The Supreme Court sits at the apex of the federal system; the High Courts, one in each state, serve as the highest state fora in both civil and criminal matters. Every state is subdivided into several districts, each with a District Court (sometimes called a Sessions Court) designated as the principal civil court of original*29 jurisdiction, under which sit a number of lower courts, including the reinstated panchayats, [FN92] whose powers differ greatly from state to state. [FN93]

Generally, the process of civil justice is governed by the Code of Civil Procedure of 1908 (itself a derivation of the British Judicature Acts) and the rules framed thereunder. [FN94] A typical civil proceeding is adversarial and consists generally of several stages including pleadings, a determination of jurisdiction, trial, judgment and decree, appeals (including revision and review), and execution. [FN95]

These civil justice processes have failed to administer justice in a timely manner in India (as they have also failed in the United States and the United Kingdom, [FN96] which are more technologically and economically developed, and where litigation is considered a primary means of resolving legal disputes [FN97]). The adversarial model appears poorly designed to meet the needs of a rural population with widespread poverty, illiteracy, and unfamiliarity with formal legal procedure. In India, this model was imposed to supplant traditional rural forms of Indian dispute resolution, [FN98] which involved respected adjudicators in a more conciliatory, less formal process, and *30 greater flexibility in remedial action. [FN99] Backlog and delay, and the continual need for access to justice in Indian society, require adaptations of both modern processes increasingly popular among the international business community and traditional processes better suited to rural society. These adaptations must offer accessible, affordable, and effective alternatives to the adversarial process.

With that historical context in mind, this Article has identified critical factors which interact in a causal relationship with backlog and delay. [FN100] These causal factors fall into three areas. First, the internal court management system lacks accountability for the administration of the caseload. Administrative institutions fail to monitor and track the status, substance, and pace of civil litigation, thus forcing the courts to duplicate efforts and allowing controversies to languish without resolution. Second, judicial management of the legal process is undisciplined, and thus unreasonably protracted, discontinuous, duplicative, and fragmented (providing lawyers with opportunities to conduct vexatious, frivolous, and dilatory litigation). [FN101] Legal professionals fail to observe procedural requirements in the pretrial stages of cases, thereby allowing dilatory *31 practices to protract the case life. Third, available alternative and consensual means of dispute resolution are limited. Insufficient opportunities for reconciliatory, consensual, and informal processes and flexible remedial action, as well as systemic disincentives against early settlement, keep more cases in the system for a longer time. This leaves less time for formal legal adjudication as a means of last resort for irreconcilable legal conflicts. In sum, opportunities to resolve disputes quickly and amicably out of court are limited. Thus, full adversarial trial remains practically the only available alternative.

These causal factors are dynamically interrelated. The lack of discipline in the litigation process and the small percentage of consensual settlements render the internal court management of an already enormous caseload even more difficult. More than any other factor, backlog and delay provide a profound disincentive for settlement. Defendants, or plaintiffs who have achieved preliminary injunctive relief, benefit from the time value of money [FN102] by refusing to settle, even in cases that they realize they are likely to lose. The paucity of consensual settlements increases the number of unresolved matters in the courts, leaving less time for other matters. Finally, in addition to being an effect, delay is also a compounding cause and a disincentive for settlement. For example, the eventual unavailability of witnesses in protracted litigation due to relocation or death, requires the use of valuable court time. [FN103]

The civil litigation process in India lacks discipline and thus manifests discontinuity, protraction, redundancy, and fragmentation, all of which result in delays that are excessive by any standard. [FN104] The following discussion seeks to explain *32 the causes of this delay by examining the stages of the litigation process, [FN105] the specific functions within each stage, the responsibilities of various actors who perform such functions, and the ability of such actors to do so in a timely manner. Part A assesses contemporary formal litigation processes. Part B describes the availability of alternative dispute resolution mechanisms and other systemic disincentives that frustrate consensual settlements. Part C identifies issues of institutional support and professional development that affect the administration of civil justice. Despite these many problems, Part D illuminates several Indian comparative advantages upon which reforms may be built.

A. Formal Litigation Processes [FN106]

Discontinuity, protraction, and redundancy result from a model that emphasizes party control and adversarial legal processes. [FN107] In its practical operation, this model exhibits several specific problems. These problems include: widespread failure to track and enforce the schedules for procedural events, to keep records accessible, to screen for deficiencies, to use forms efficiently, to classify claims, to eliminate uncontested matters, to assign cases efficiently, to conduct efficient scheduling and notification of appearances, and to eliminate liberal grants of extensions and adjournments. India's Civil Procedure Code (CPC) prescribes time limits, but some may be unreasonably short, thus forcing judges to disregard *33 them. [FN108] Evidence?taking procedures, conducted almost exclusively in court, are time? consuming and duplicative. Matters are stayed unnecessarily by interlocutory appeals and by failure to coordinate schedules with alternative dispute resolution processes. Judges fail to exercise authority to sanction the parties for failure to observe deadlines and other procedures.

The following is a brief examination of some of these problems in formal litigation processes.

1. Initiation of Claims and Defenses

The Indian civil process begins with the filing of a complaint with the court. The court's registrar, a body of civil servants, is responsible for reviewing complaints for satisfaction of procedural requirements, manual classifications and tracking of the case, as well as for service and notice of the pleadings on the defendant. The defendant files a written statement and the registrar is responsible for scheduling the first appearances. A close assessment of these processes reveals several causal factors that exacerbate backlog and delay and which, unless addressed, will frustrate efforts to reduce procedural bottlenecks.

2. Case?Flow Tracking

Particularly in the early stages, court management processes of case filing and tracking (including each procedural step of evidence submission and appeal) exacerbate backlog and delay and lack the accountability necessary to improve case management functions generally. Failure to develop case and event? tracking devices in these early stages has a ripple effect on court congestion throughout the litigation process. Whereas the Supreme Court of India has modernized its case?tracking system, [FN109] the other Indian courts, except for a few High Courts, do not yet enjoy the full benefits of computerization. *34 Many administrators in these courts have had only minimal exposure to computers and their use in a clerical office. Without computerization, the courts rely on decentralized, non?uniform, and internally complicated manual filing and recording of formal submissions (including pleadings, motions, and appeals).

3. Record?Keeping

This manual recording system suffers from many related problems, such as inconsistency in classification of cases, [FN110] difficulty in finding documents, [FN111] and the inability to inform the court of other procedural steps that may have already affected the requested disposition. [FN112] Those High Courts that are computerized still have not computerized scheduling and other case processing events. Without tracking the scheduling of significant procedural matters, computerized courts cannot take full advantage of their automation efforts to monitor the progress of cases more efficiently or derive meaningful statistical *35 analyses of the efficiency of current or newly modernized court management processes. [FN113]

4. Screening Deficiencies

The registrar's process for screening deficient filings unnecessarily uses valuable court time. One registrar in Thane has reported that approximately half of the formal submissions prepared by lawyers are deficient in at least one respect. It is the lawyer's responsibility to check the registrar's notations of deficiency and to cure them within seven days; if the lawyer cures the deficiency within that time, the case goes to court. However, where a deficiency is noted, the opposing party often moves for court intervention. In Thane, the registrar has estimated that the court dismisses insufficiently prepared filings in only two to three percent of the deficiencies. These rulings are then appealable. Thus, these processes require a disproportionate amount of court time and add to backlog and delay.

5. Use of Forms

Courts make little use of forms as a means of obtaining and controlling information about the substance and progress of litigation. Moreover, to the limited extent that courts do make use of forms, there is little, if any, uniformity among the forms used. As a result, there exists no system?wide, dependable information source, and no reliable way for judges to track the progress of the litigants in moving forward with litigation. This lack of sufficient use of forms deprives courts of a vitally important element of case management.

*36 6. Classification of Claims

The decentralized and frequently inconsistent classification system leaves the lower courts unable to consolidate claims based on common issues of law and/or fact. For example, a land acquisition dispute involving 300 claimants is likely to be divided into 300 separate litigations, each with its own attorneys, filings, time schedules, procedural maneuverings, evidentiary preparation, appeals, and court dispositions. Without a proper classification system and an effective plan for handling an enormous backlog of old cases, no efforts to consolidate the preparation of evidence or the resolution of legal issues may be pursued. This has a disabling effect on the ability of the Indian courts to handle complex and multi?party litigation, and results in duplication of judicial efforts to adjudicate common issues.

7. Noncontentious Matters

Because of the length of delay currently encountered in the courts, the dockets are filled with cases that are no longer contentious. With so many years elapsing after a case is filed, the underlying circumstances and conditions may change so as to leave the parties disinterested in the litigation (e.g., litigants go bankrupt, leave their jobs, heal, move on with their lives), [FN114] while the case remains on the court's calendar. Without reform of the court management system, courts will have difficulty in ridding their dockets of such moot matters.

8. Case Assignments

Due to judicial rotation and transience in assignments to courts and panels, [FN115] India has no direct calendaring system. Under a direct calendaring system, the judge is assigned the *37 case when it is filed, and absent retirement, the judge is ultimately responsible for the disposition of that case. The absence of such a system weakens the institutional and professional accountability for disposing of matters in a timely fashion. The knowledge that any number of matters will eventually be transferred to another adjudicator reduces institutional incentives to dispose of matters promptly. Those courts which are required to meet statistical disposition norms have incentives to dispose primarily of matters susceptible to speedy resolution, thus leaving more complex matters for their (or another panel's) later attention. [FN116] Furthermore, reassignment of matters to judges unfamiliar with the litigation duplicates use of precious judicial energies.

9. Scheduling and Notification of Appearances

Lawyers express frustration that the schedule for appearances is frequently not accessible until the evening before the court session, and that those cases not called are not rolled over into the next day's calendar. This situation results in many failures to appear and little time to prepare for the next day's hearings. [FN117] Furthermore, courts use a disproportionate amount of time calling for appearances. In Thane, for example, the average court day of six hours loses one and one?half hours to this process. Because parties seem to view the court's docketing system as unpredictable, they infrequently appear in court when their case is called. Since parties so infrequently appear, the court may call for 100 appearances before conducting official business. [FN118] Other parties respond by remaining in court on the remote chance that a case might be called for hearing. Because the judges are expected to prepare for hearings in advance, chronic postponements require judges to *38 waste many hours preparing for appearances that do not take place according to schedule.

10. Taking of Evidence

The discontinuous and court?centered method of taking evidence adds significantly to backlog and delay. First, because India requires litigants physically to bring filings and records into open court to be filed with the registrar, both the discovery of documents and witnesses [FN119] and the issue? framing stage [FN120] require a long period of time, demanding court attention and resources before in?court hearings can begin.

Second, with limited exception, India has no out?of?court discovery process (e.g., depositions, interrogatories or requests to admit). Not only does the in?court method obviously take up more court time, but it also complicates the coordination of the court's schedule with the availability of witnesses. Because the courts are not effectively able to compel witnesses to appear, the evidence?taking stage of civil litigations suffers significant delay. Moreover, the courts do not place any time restriction on the evidence?taking process.

The historical justification for in?court testimony is to allow the judge to evaluate the witness's demeanor. This justification is undermined (1) by long periods of time between the court appearance and the judge's disposition, requiring judges to refresh their recollection by re?reading the transcript, and (2) by the judicial rotation system, which means that the judge who adjudicates is rarely the same judge who heard the evidence in court. Thus, the purpose of witness evaluation is undermined under the current operation of the oral evidentiary process, and judges are left to perform tasks which are not central or necessary to their own decision?making.

Third, witness and party testimony in court require significantly more court time. The Indian trial process entails direct and cross?examination; however, each answer is restated (not verbatim) [FN121] by the judge to the typist for the record. The testifying *39 person then checks the record and signs it. Currently, the courts do not enjoy a mechanized reporting system whereby court reporters could record verbatim reproduction of oral testimony in written form.

11. Extensions

When parties do appear, extensions and adjournments are regularly requested and generously granted without imposing available costs, even for defendants who repeatedly fail to answer the plaintiff's allegations. These allowances enable defendants (and plaintiffs who have been awarded interim relief) to delay with impunity.

12. Reluctance to Enforce Pre?Existing Authority

Judges do not exercise their pre?existing authority to curtail delay. At the first hearing, the judge may ascertain from the parties or their lawyers whether they admit or deny factual allegations contained in the initial pleadings. The court may then record such admissions or denials. The court may also examine the parties or any witnesses and record the results in order to narrow the issues before the court. However, these procedures are generally not followed. [FN122]

Judicial reluctance to be proactive, despite pre?existing judicial powers, frustrates efforts to streamline and discipline the civil process. Courts generally have authority to develop, publish, and enforce rules governing the conduct of litigation, but, for the most part, the courts have not developed such rules, and court rules that do exist are neither comprehensive nor uniform. The result is a largely "oral" system of rules applied on an ad hoc basis and with little discipline. Further, individual judges currently have the authority to alter procedural practices that compound backlog and delay, but they seldom exercise their authority to the extent necessary to manage litigation effectively. For example, judges generally can (1) make settlement suggestions, (2) summon the defendant and documents and witnesses relied on by the defendant, [FN123] *40 and (3) impose costs for frivolous pleadings and motions. In practice, judges rarely exercise this authority. [FN124] As a general matter, judges play little or no role in moving cases toward resolution fairly and expeditiously. Judicial reluctance to exercise managerial authority may be related to a variety of structural and institutional factors. [FN125]

13. Appellate Processes: Interim Appeals, Orders, and Writs

The process of interim appeals, orders, and writs adds significantly to backlog and delay. [FN126] First, because final judgments require so many years to obtain, parties have a strong incentive to seek interim relief. [FN127] Second, the right to appeal substantive and procedural court decisions is extremely broad. Parties need not wait to determine whether the court action complained of will have a dispositive effect on the substantive outcome of the decision; rather, they can file appeals prior to final judgment. Third, when appeals are made, the trial court proceedings are often stayed, even though there is no legal requirement to do so. Fourth, the High Courts [FN128] have a duplicative two?level appellate review system, composed of *41 (lower) single judge and (higher) dual?judge panels. Reports indicate a lack of coordination between the two levels. A lower court judge may modify his own previous ruling while the first unmodified ruling is still pending in the dual? judge panel. This not only leads to inconsistency and confusion over the legal status of the appeals themselves, but it also duplicates the use of valuable court time. [FN129] Fifth, the service of process for interim orders often provides ineffective notice, particularly when litigants live in remote villages. The High Courts serve process through the district courts, and the district courts serve without requiring acknowledgment. The mails are not used because it is assumed that process will arrive after the scheduled hearing date. Finally, the High Courts are equally passive in assessing costs to parties pursuing non?meritorious actions and appeals. Thus, there is no disincentive to counter the strong incentives to seek relief at the High Court level.

B. Alternative Means of Dispute Resolution

1. Availability of Alternatives

Although conciliation services are available to civil litigants through the innovation of Lok Adalats (panels of conciliators) and Conciliation Committees, [FN130] several problems remain. *42 First, India generally lacks obligatory mediation such as early neutral evaluation utilized in the United States, [FN131] which *43 is especially useful when imposed shortly after a litigation is filed. Conciliation processes in India require the consent of both parties, or the request of one party and the decision by the court that the matter is suitable for conciliation. Second, the subject matter of disputes that may be sent to Lok Adalats is limited to auto accidents and family matters. Third, the conciliation process normally involves the lawyers, not the disputing parties themselves. This problem is particularly acute in writ proceedings in which the government is the responding party, since counsel frequently claim to lack authority to make decisions about terms of settlement. [FN132] Fourth, current conciliation processes do not require the parties to meet and confer prior to entering either traditional litigation venues or their alternatives. No joint statement of the specific points of disagreement is required. The absence of meeting, conference and/or joint statement requirements allows competing sides to remain insulated from one another. Fifth, the Lok Adalats themselves have experienced backlog, and some defendants agree to conciliation as a way of further delaying the litigation process. Finally, there is no set time or point within the litigation process at which a decision is made??by the courts, the *44 parties or otherwise?? regarding referral of the case to some form of alternative dispute resolution. [FN133]

2. Paucity of Consensual Resolutions: Incentive and Opportunity

Because of the adversarial nature of the litigation process and the limited alternatives and disincentives created by backlog and delay, very few civil litigations in India settle consensually. Thus, a combination of causal procedural, structural, and institutional factors contribute to the poor rate of settlements.

First, settlement is rare because of a variety of related disincentives and institutional features of the civil process. Delay itself reduces the incentive to settle: defendants (or plaintiffs who have received interim relief) have little incentive to settle a lawsuit if there is little expectation of an adverse ruling within a short period of time. Also, the infrequency with which judges suggest settlement or conciliation eliminates any official encouragement for settlement. Judges may hesitate to suggest settlement for fear that one of the parties will allege that the judge is expressing partial sentiments that prejudice the litigation process. Additionally, the overabundance of lawyers and relatively low cost of legal services reduces the incentive to settle. The lack of effective fee or cost? shifting mechanisms reduces the risk of making dilatory denials of known facts and adverse judgments. Further, it not only allows greater access to the courts but also eliminates disincentives for pursuing non?meritorious claims and defenses. The lawyers' litigation mentality and the lack of control in the litigation over attorney conduct also reduce the likelihood of settlement. Frequently, the parties never meet or communicate with one another until a formal hearing. [FN134]

The second reason for the paucity of consensual resolutions, as mentioned above, is that the fora currently available for alternative dispute resolution, though reasonably successful [*45 FN135] and growing, still have limited application. Requiring the consent of both parties means that defendants or plaintiffs intent on delay will frustrate the use of these fora. The absence of measures forcing the litigants to meet and communicate jointly results in a failure to address the negative effects of the adversarial process on settlement. Limitations on subject matter (auto accidents and family disputes) [FN136] deny many litigants the institutional opportunity for mediation or conciliation. The backlog experienced in the Lok Adalats themselves supports reports that parties consent only to delay the litigation further. Opportunities within India are even more limited for the resolution of international disputes, despite the fact that India has concrete plans to develop an international arbitration center and has recently adopted a new arbitration law [FN137] consistent with UNCITRAL standards. [FN138]

C. The Actors: Institutions and Personnel

A variety of structural and institutional factors affecting the major participants in the legal system are causally related to backlog and delay, and must be taken into consideration when designing effective reform measures.

*46 1. The Judiciary

In order to implement well designed processes, reforms need to address several institutional features of the judiciary. Judicial experts sound a common complaint that judges frequently do not take the initiative to employ procedural powers already within their reach. A preliminary assessment of the judicial inability to impose discipline suggests three potential causes: (1) the judiciary is overburdened with non?judicial tasks and, without necessary administrative support, cannot exert the intellectual and emotional rigor required to impose discipline on the civil process; (2) the judicial rotation system inhibits developing judicial power through institutional continuity; and (3) frustration due to enormous workloads and low salaries may cultivate the attitude that nothing can be done.

In the first instance, the judiciary spends a disproportionate amount of time on ministerial and administrative matters. Court and case management assistance is inadequate, especially given the special challenges posed by the daunting backlog of cases. Thus, judges are able to spend proportionally less time adjudicating disputes. Without sufficient administrative support, any proposed allocation of case management authority to court administrators will remain infeasible. Additionally, judges lack sufficient control over their own budgets, making effective long?term planning nearly impossible. Inadequate budgets, in turn, make it difficult to address other needs. For example, the judiciary lacks adequate administrative support from well?trained administrators and assistants (such as research clerks and technically trained court administrators). The judiciary also lacks adequate court facilities (such as offices, libraries, space for filing, office equipment and computers).

Secondly, the judicial rotation and roster assignment systems, which force judges to move from one court to another every three to five years and from one panel to another every couple of months, reduce judicial incentives to be accountable for caseload management. Rotation also weakens the development of an administrative, institutional memory and eliminates continuity in the chain of authority. This problem is exacerbated by the lack of comprehensive, uniform forms which might otherwise provide judges assuming responsibility over *47 cases a centralized, complete, and accurate assessment of the status of the litigation. Due to rotation, judges arrive as outsiders in courts they are responsible for running, and lawyers are less accountable to judges, who lack the greater authority of a repeat?player system. These features of the rotation system reduce accountability and productivity.

Finally, low salaries, combined with a lack of adequate judicial training programs and the overwhelming caseloads, have a discouraging effect on judges' work habits. [FN139] This reality understandably dampens initiative and creativity and may lead judges to feel relieved when matters are extended, stayed or adjourned; if matters are prepared for trial or legal decision, judges may not think they have enough time to perform these tasks.

2. The Lawyers

Institutional weaknesses in the legal profession also contribute to protracted litigation, resulting in backlog and delay. [FN140] First, the value (and cost) of legal services is low, because lawyers are in overabundant supply. The backlog and delay problem is so extensive that lawyers are not able to achieve significant objectives in a timely manner, thus reducing the value of their services in the market place. Additionally, litigants seek those lawyers who are well known for their effectiveness (and, thus, well? compensated) to such a degree that they are overworked and have little time to prepare their cases.

Second, the professional competence of lawyers is seemingly unsatisfactory. Law is not a competitive career choice in Indian society, which favors medicine and engineering. Thus, there are few outstanding law schools in India, and even law schools that provide high?quality education do not attract the *48 best students in relation to other professional schools. Universities can establish law departments without satisfying any certification requirements. Legal education is conducted without any external academic standards. Finally, until recently, there were no other licensing requirements for lawyers other than graduating from such a law school. [FN141]

Third, lawyers in India previously classified as "barristers" perceive themselves exclusively as trial lawyers. This identification limits their openness to out?of?court legal processes (such as discovery) and alternative forms of dispute resolution. They do not conduct business in law offices; rather, they go to work by appearing in the courts. These lawyers strongly resist suggestions to create alternative fora. Moreover, lawyers lack any special training in negotiation, mediation, or conciliation processes.

Finally, the inexpensive cost of legal services provides little incentive for avoiding or resolving lawsuits, and the method of compensation contributes to the protraction of the civil process. For example, one frequently used method of compensation is to pay lawyers by appearance. This provides an incentive for lawyers to manipulate the legal process by generating as many appearances as possible, and further exacerbates the discontinuity and fragmentation of the process. Since clients are rarely in attendance, no economic checks operate to discourage this practice. Another frequently used method of compensation is to pay lawyers a flat fee to handle cases, which provides little cost?driven incentive for parties to bring cases to closure without unnecessary litigation and delay. Enhancing the earning potential of lawyers through the implementation of modern case management functions and alternative dispute resolution mechanisms will be an important factor in successfully reforming the civil process.

3. The Alternative Dispute Resolution (ADR) Specialists

Retired judges and senior advocates are eligible to serve as ADR specialists under the Indian justice system. Given early *49 mandatory retirement ages ranging from 60 to 65, [FN142] many able retired judges are willing to serve with modest or no compensation. Senior advocates willing to serve without compensation may be significantly fewer.

Despite the apparent wealth of available talent, India currently has no special training and certification programs for consensual dispute resolution, particularly processes that seek to facilitate settlement between the parties rather than merely evaluate the legal positions and make suggestions for the terms of conciliation. Such training will be needed as facilitative processes become more common.

4. The Litigants

Generally, litigants are not very involved in the litigation process. Two factors contribute to this lack of involvement: low levels of legal literacy and attorneys' economic incentives to minimize client participation. Shielded by their attorneys, litigants are not as capable of exerting influence over the process, nor are they typically aware of the comparative strengths and weaknesses of their respective claims and defenses. The absence of compulsory meet?and?confer or other alternative processes, in which the parties must interact, further insulates the litigants from one another. This lack of involvement undermines lawyer?client accountability and reduces the likelihood of settlement. A related problem, referred to above, is the lack of involvement of responsible government representatives in litigation, which often makes nearly impossible the settlement of even the most meritorious writ petitions.

D. Countervailing Indian Advantages: The Silver Lining

Despite the critical nature of the problem, India may also benefit from certain comparatively advantageous conditions. First, there is a growing national consensus, including opinions held by members of the judiciary, that backlog and delay are undermining the fundamental goals of the adversarial litigation process. Lawyers, judges, litigants, and court administrators at all levels acknowledge the impact of backlog and delay *50 on society, and are exhibiting a strong commitment to the civil process reform as an integral step to improving the legal conditions for economic growth. Second, the population not only generally agrees on the necessity of expediting civil justice, but also, because the judiciary has gained positive public recognition during recent times, [FN143] the public supports judicial reform generally. [FN144] Third, although the current lack of uniformity poses its own inefficiencies, the legal system continues to generate a diversity of legal experience upon which to base the reforms and to further expand proven models. The courts have the authority to alter many procedural rules and practices under the rule?making powers vested in the courts by the CPC without requiring further legislative action.

Finally, the legal system has already broadly implemented selective reforms in three areas: court management in the Supreme Court; procedural streamlining authority in the CPC; and consensual dispute resolution through the Arbitration and Conciliation Act of 1996 (ACO) and the Legal Services Authority Act 1989 (LSAA). [FN145] Legal literacy camps have increased legal awareness, particularly in rural sectors. [FN146] This preliminary experience provides ample ground for further study and selective adaptation to a broader range of courts. All of the above factors will assist in meeting the widespread needs for an effective civil justice delivery system.

*51 IV. The Mechanisms of Indian Civil Justice System Reform

A. The General Solutions to Backlog and Delay [FN147]

General solutions to backlog and delay are easy to articulate. [FN148] Many countries have incorporated the right to speedy legal determinations into their procedural and constitutional law. [FN149] However, efforts to turn this principle into practice quickly encounter both ideological opposition [FN150] and practical obstacles. [FN151] Aside from the common but unrealized plea for more judges [FN152] and better enforcement of pre?existing rights, national court systems tend to pursue three general, process?oriented strategies: litigation prevention, early judicial intervention *52 in managing civil cases, [FN153] and alternative dispute resolution. [FN154]

*53 Despite the importance of civil process reform, new proposals are frequently ineffective or slow to develop for five reasons. [FN155] First, procedural reform frequently follows substantive reform, though it is no less important. Second, procedural reforms require attention to the institutional and human resources available to implement new court and out?of?court practices. Accordingly, some proposals presuppose large investments of unavailable resources. Third, the opportunity to draw constructively on foreign legal experience is often lost due to superficial and static comparative legal analysis; either such experience is deemed irrelevant based on parochial assumptions that foreign systems are not comparable, or foreign models are uncritically accepted without modification. Fourth, some governments have had exclusive responsibility for the evaluation of reform. The absence of a significant role for non?governmental experts inhibits the growth of new ideas and eliminates potentially valuable discourse among the major participants of the legal process. Finally, many reform proposals are stalled or rejected by political opposition.

Whereas early judicial interventions and alternative mechanisms to resolve matters prior to trial have developed relatively *54 quickly in the United States, [FN156] they have been slow to develop in other national court systems for a variety of structural and ideological reasons. One assessment has concluded that case management strategies have not been pursued in India partly because of the judicial rotation system and advocates' control over the pretrial process. [FN157] Similarly, one commentator has explained that Italy has not pursued obligatory alternative dispute resolution processes because of (1) the constitutional value of access [FN158] and (2) prohibitions against the creation of non?judicial bodies entrusted with dispute resolution capability. [FN159]

However strong the opposition to such reform, commentators should acknowledge that the failure to address the most critical problems in many court systems itself tends to deny access to civil litigants, frustrate the implementation of human rights, exacerbate resource disparities, and divert cases to private forms of resolution. [FN160] A protracted civil litigation process provides a strong disincentive to use the courts, thus denying access. The ability of defendants to delay the civil litigation process with impunity strengthens their comparative economic strength in litigation. Finally, if the courts are not a feasible option for a timely judgment, parties either ignore their disputes or resolve them through other private strategies. Thus, the concerns raised in opposition to reform may be *55 raised just as critically by deliberate or inattentive preservation of the status quo. [FN161]

In order to address these obstacles and to provide helpful assistance to other nations currently pursuing civil justice reform, this Article's approach views functional and systemic reform as necessary to effective substantive legal reform and the achievement of market?oriented and human rights policies. Second, this approach attempts to design creative recommendations without requiring unrealistically large investments of unavailable financial resources. Modest investments in training will provide a starting point for implementation before larger investments in professional and institutional development follow. Third, this approach draws on a long?term and rigorous collaborative study drawing on Indian and U.S. experience, as well as recent achievements in other countries and contemporary international procedural trends. Fourth, the dialogue that generated the final recommendations benefited from the expertise and informed judgment of both public and private sector experts. Finally, this Article derives its conclusions from the conviction that to embrace the status quo is a far worse alternative than the proposed solutions. As the authors of the implementation plan urged, "the society cannot afford to wait" for effective reforms. [FN162]

B. Summary of the Indian Reforms [FN163]

The proposed reforms integrate three sets of recommendations to improve the delivery of civil justice: court administration, case management, and consensual dispute resolution. The first recommends internal monitoring and tracking of the key procedural events in the life of a civil case ("court administration") in order to increase accountability in the courts. The second recommends greater judicial involvement in preparing and pacing a civil litigation ("case management") to impose the necessary discipline on the civil process, and thereby significantly *56 reduce the time required to adjudicate a civil claim. The third reform entails the expansion and development of alternative, consensual mechanisms to resolve disputes ("consensual dispute resolution" or "CDR") in order to increase the availability of speedy and conciliatory dispute settlement processes.

Through each reform, both the time required to adjudicate civil disputes and the number of claims currently pending in the courts will be significantly reduced. Court administration will help administrators and judges ensure that both the courts and the litigants have fulfilled their functional responsibilities in a timely manner. Case management will help the parties to prepare factual and legal support for their respective positions and help the court frame issues for trial in an expeditious way. Finally, CDR will increase the opportunity to avoid frequently unnecessary and winner?take?all litigation processes, and will broaden the availability of settlements satisfactory to all parties. [FN164]

Each measure is integrally designed to support the other two. Court administration entails the necessary accountability for system?wide supervision of the civil justice process, including the monitoring and tracking of case management and CDR procedures. Case management will provide greater judicial vigilance over critical administrative functions within the courts and will coordinate CDR processes. Finally, CDR will relieve the courts of administrative and managerial burdens by reducing backlog and delay through a greater frequency of consensual and early settlements. The combination of these measures will significantly improve confidence in the civil justice system of the country, thus bolstering popular trust in legal institutions, securing civil justice for the society, and attracting the development of domestic and transnational commerce. [FN165]

*57 1. Distinguishing Features of These Proposals

These proposals extend beyond prior Indian law commission reports [FN166] in one critical respect. This Article's recommendations include explicit mechanisms designed to ensure enforcement. The proposals create the institutional court administration, case management, and CDR mechanisms necessary to put these procedures into practice, and they do so through substantial reliance on pre?existing legal authority provided by the CPC. [FN167] The creation of explicit mechanisms to place well?defined responsibility on procedural actors for complying with specified procedural steps is the primary innovation of these reforms.

Taken together, the mechanisms may be summarized as a reform of dispute resolution management. The three prongs of this approach entail reform of (1) dispute management, including internal administration of the courts and alternative adjudicatory fora; (2) judicial control and management of resolution processes, including case management and related procedural streamlining mechanisms; and (3) enhancement and creation of the consensual means of resolving disputes, including judicial settlement, early neutral evaluation, and private mediation. Court administration consists of computerized classification systems and case? and event?tracking devices tailored to monitor the status of the pending caseload. Case management is a judicial streamlining function designed to impose discipline on the preparation of civil cases for trial. Judicial settlement, early neutral evaluation, and private mediation are alternative forms of dispute resolution designed to facilitate consensual settlements and lead to broader remedial possibilities.

All three prongs are integrated. Court administration will help coordinate both case management and consensual dispute resolution. Case management will involve judges becoming more directly responsible for court administration functions, and will coordinate the utilization of consensual dispute resolution mechanisms. CDR, when successful, will relieve *58 both administrators and judges of significant administrative burdens, and even when CDR does not result in a full settlement, it will enhance the quality of preparation and communication in the formal trial process.

2. Solutions Implemented by the Mechanisms

The three sets of proposals seek first to establish accountability in the administration of justice (through court administration). Second, they would curb party?controlled procedural excesses (through case management). Third, they would further broaden currently available means of dispute resolution (through consensual dispute resolution).

These measures will help to realize the underlying goals of formal procedural justice by preserving and supporting formal litigation as a means of last resort, while simultaneously restoring and modernizing consensual dispute resolution processes often utilized in pre?colonial society. Therefore, these efforts are intended both to bolster and extend beyond not only the best features of the British, adversarial process and the pre?colonial, indigenous forms of dispute resolution, but also the recent innovations of the CPC, [FN168] the ACO, and the LSAA.

Specifically, court administration is designed to create greater monitoring and accountability for the tracking of procedural events in civil litigation. Case management, incorporating procedural streamlining, is designed to create greater efficiency and discipline in the preparation of civil litigations for trial, and to initiate joint communication between the parties and the court. CDR is designed to provide a broader range of dispute resolution opportunities to extend beyond currently adversarial (to joint and conciliatory) and formal (to informal) processes. CDR is also designed to expand currently narrow remedial possibilities beyond purely finite, win?lose, judicial remedies to poly?centric, calibrated, and creative consensual solutions.

3. The Two?Phase Implementation Process

This Article presents a practical, two?phase implementation plan for the reform of the Indian civil justice process. *59 Phase One would involve the implementation of a pilot program based upon court administration, case management, and non?mandatory CDR under Supreme Court instructions, as well as concomitantly necessary training and education. Phase Two would involve case management, procedural streamlining (such as mechanisms to manage and regulate the frequent use of interim appeals), and mandatory CDR under new High Court rules. Phase Two would also involve, following additional study and design, a variety of further developed streamlining recommendations.

Accordingly, Part C outlines the plan for court administration. Part D describes case management. Part E describes the recommended CDR mechanisms, and Part F describes the two?phase plan for implementation.

C. Court Administration

1. Definition of Court Administration

Court administration consists of the internal management of the courts, including classification systems, monitoring, coordination, and case?flow tracking mechanisms. Classification systems will help the courts to consolidate adjudication of claims involving common legal issues. Monitoring, coordination, and case?flow tracking will ensure that both pre?existing and new case management and consensual dispute resolution processes proceed according to established timetables.

2. Specific Features and Objectives

a. Classification

This Article proposes a computerized, standardized, nationally uniform classification system for case tracking. The classification systems currently used by the various courts are inconsistent, both in nomenclature and scope. The Supreme Court has developed a comprehensive case classification system and demonstrated that using such systems to consolidate and group cases can yield significant efficiencies. To date, however, that system has not been applied to the lower courts, making subject?specific, statistical analysis of caseloads and case procedures (including measures such as reasonable average processing times) impossible on a national level and extremely difficult on the local level.

*60 Uniformity of nomenclature and scope, especially in the realm of classification, would itself facilitate and expedite disposal. A computerized and uniform classification system would enable a national network of Supreme Court, High Court, and District Court computers to ascertain the number of cases pending in a particular category or subject. If a particular legal provision or subject has generated a large volume of pending cases in the High Courts and subordinate courts, with a few such cases pending also in the Supreme Court, it would then be possible to list the Supreme Court matters for disposal and, on the basis of the Supreme Court judgment on that issue, direct all High courts and subordinate courts to take up thousands or even hundreds of thousands of cases for disposal on the same issue. The rate of disposal in such cases is potentially exponential.

A consistent classification system will reduce judicial responsibility for ministerial tasks, purge dockets of thousands of moot cases, consolidate multiple claims based on common issues of law and fact, and develop tracking systems for judicial scheduling economies and subject matter allocation.

b. Monitoring, Coordination, and Case?Flow Tracking

Instead of expending court time and judicial time on procedural matters, court registrars will be responsible for monitoring each step in the litigation process, including coordination of the case management mechanisms described below. Coordination by the registrars, who will communicate evidence of non? compliance to the court, will assist in the practical operation of new case management and consensual dispute resolution functions.

Particularly in the early stages of a civil case, court management processes of case filing and tracking (including each procedural step of evidence submission and appeal) will be designed to create accountability in the management of the current caseload. Through computerization, case?tracking devices will be developed to centralize and regularize classification, filing, and record?keeping. This centralization will allow the courts to be easily informed of the procedural position of individual matters, to locate documents and records more easily, to consolidate matters having common issues either formally or informally, and to rid the dockets of moot matters. In *61 these ways, a case?flow tracking system will likely save both time and resources.

Finally, this system will also allow the courts and other legal experts to study the efficacy of newly modernized civil justice processes and their effect on backlog and delay. Court administrators will further develop systems of statistical analysis for use in monitoring the courts' work. Whereas court administrators already use certain statistical tools, greater use of statistical measures will allow Chief Judges and administrators to chart the progress of cases and identify problem areas. In addition, with the goal of improving public confidence in the judiciary, each court system will assemble data monitoring case disposition and regularly report statistics to the public. This will be particularly important prior to expanding pilot projects.

D. Case Management

1. General Description and Objectives of Case Management

a. Definition of Case Management

Case management is an early, managerial intervention by a judicial officer in the parties' preparation of a civil case. It is a judicial process that attempts to achieve a timely and qualitative resolution of a dispute. Its primary features are the early identification of disputed issues of fact and law, establishment of a procedural calendar for the life of the case, and the initiation and coordination of consensual processes aimed at the resolution of the case other than through a court trial.

In the recommended reforms, the judge applies case management techniques at the earliest stage after the filing of the written statement and enforces active participation and joint communication among the parties and their lawyers throughout the case. This mechanism requires submission of separate case management statements by each party, requires each side to answer the requisitions, if any, made by opposing parties and, additionally, imposes sanctions for non?compliance. It requires the opposing parties to identify the real controversies in the case and seek early responses from each side on questions of fact and law.

Case management, as designed for these reforms, involves two in?court sessions. At the first case management hearing, the judge receives case management statements and ensures *62 that the parties have complied with the requirements. The judge then directs both parties to meet and to compose a joint case management statement. Subsequently, at the second hearing, the judge reviews the joint case management statement with the parties, or (in the event of their failure to perform) the judge helps the parties compose a joint statement, upon which basis the judge issues a joint case management order. This order encompasses the admitted and disputed facts, identifies the controversies, and selects the particular form of consensual dispute resolution: judicial settlement, conciliation, arbitration, mediation, or early neutral evaluation. The judge also issues decisions on uncontested questions whenever possible, thereby substantially saving time.

If the dispute remains unresolved after the foregoing efforts have been completed, the judge outlines and directs the parties to follow a schedule for trial, based in part on their own proposed schedules from both the case management statement and the joint case management statement.

b. The Purpose of Case Management

The objectives of case management are to establish judicial responsibility for the otherwise substantially party?controlled, adversarial preparations of civil cases for trial. Specifically, case management is designed to reduce dilatory, frivolous, inefficient, and protracted litigation practices and to replace party?controlled litigation processes with judge?controlled, sequential steps in the life of a civil proceeding. An explicit case management process is not only designed to reduce unnecessary delay; its fundamental purpose is to allow the litigation system to fulfill the goals of its original design: meaningful access, the fair, speedy, and inexpensive resolution of disputes, and the effective realization of legal rights and remedies.

The following expected benefits justify adapting case management to the Indian civil justice process. First, case management initiates direct channels of joint, collaborative communication between adversaries. Second, it establishes public accountability for court managerial functions. Third, case management imposes discipline on scheduling and notification procedures. Fourth, it promotes earlier, consolidated and more effective preparation by the parties and their lawyers *63 of their factual and legal claims and defenses. Fifth, case management leads to a clearer identification and narrowing of the legal and factual issues to be decided. In some cases, case management prepares the parties for adjudication of dispositive legal issues that do not require a finding of material facts. Sixth, it facilitates consensual settlement and greater continuity of trial phase hearings. Together, these practices reduce delay and increase access to justice, prevent unfair, discontinuous, and time?consuming procedural maneuvers, and foster consensual settlements, thus preserving formal litigation as an important means of last resort.

2. Specific Functional and Systemic Features of Case Management

Case management functions are to be performed by the sitting judge to whom the case is assigned and are to apply to all cases in which a written statement has been filed. Pursuant to the rules, orders, and sanction powers described herein, the case management process shall proceed according to the steps and forms [FN169] described below. The forms standardize an early status report designed to provide judges with a summary of the most significant information they need to review in preparation of court hearings. [FN170] All case management procedures *64 outlined herein shall apply to all cases filed after implementation of the reforms, and to all those pending cases in which issues have not yet been framed. Below are the recommended steps.

a. Step One: Case Management Statements

Within two months from the date of filing the written statement(s) by defendant(s), plaintiff shall file with the court a case management statement (the "Case Management Statement") after serving a copy of such statement upon the other parties.

Within 15 days of the receipt of the copy of the plaintiff's Case Management Statement, defendant(s) shall file a Case Management Statement with the court after serving a copy of such statement upon the other parties.

b. Step Two: First Case Management Hearing

If the plaintiff fails to submit the Case Management Statement within the specified period (unless the court has granted an extension for exceptional reasons to be recorded in writing), the court shall dismiss the suit.

If the defendant(s) fails to submit the Case Management Statement within the specified period (unless the court has granted an extension for exceptional reasons to be recorded in writing), the court shall strike off the defense(s) of the said defendant.

In no event shall such extension exceed 30 days from the periods specified herein. The orders sanctioning the parties shall not be subject to appeal or revision.

After fifteen days from the date of filing the Case Management Statements by all the parties, but not later than thirty days thereafter, the court shall fix a date for a Case Management Hearing in order to review, in the presence of the parties, the Case Management Statements and to pass appropriate orders thereon with reference to the questions raised therein.

Upon expiration of the specified time periods, the court may make such order or give such judgment as it sees fit under Order XII, Rule 6 of the CPC.

*65 c. Step Three: Joint Case Management Statement

If the court does not see fit to make such order or give such judgment during the Case Management Hearing, the court shall fix a date for a joint case management hearing (the "Joint Case Management Hearing"). In preparation of the said Hearing, the parties shall file a joint case management statement (the "Joint Case Management Statement") within thirty days of the court's first Case Management Hearing. Such Joint Case Management Statement shall be completed by the parties or their pleaders jointly.

In the Joint Case Management Statement, the parties shall select one of the following CDR mechanisms available to the parties: arbitration, as defined in Part I of the ACO; conciliation, as defined in Part III of the ACO; settlement through Lok Adalat, under the LSAA; judicial settlement, under proposed Order IXA of the CPC; mediation, under proposed Order IXA of the CPC; or early neutral evaluation, under proposed Order IXA of the CPC.

In the event that the parties cannot in good faith reach mutual agreement on a specific answer called for in the Joint Case Management Statement, they shall note such disagreement on the form with the prior knowledge that the court will elect one for them if they cannot agree.

In the event that the parties fail to file a Joint Case Management Statement within 30 days, the court will be responsible for holding a hearing in order to develop said Statement at the Joint Case Management Hearing.

d. Step Four: Joint Case Management Hearing

Upon such time specified in Step Three, the court shall hold a Joint Case Management Hearing. The Joint Case Management Statement shall be submitted by the parties jointly prior to this Hearing. During the Joint Case Management Hearing, the judge shall: resolve any disagreements on the framing of issues or the proposed schedule contained in the Joint Case Management Statement; ensure that the parties have elected one CDR; and (upon disagreement over the appropriate CDR) make an election for the parties and (based on the foregoing) reduce the Joint Case Management Statement and the deliberations of the Joint Case Management Hearing to an effective order of the court (the "Joint Case *66 Management Order"). The parties shall be required to attend the hearing in order to allow the judge to examine them under the authority of Order X of the CPC.

e. Step Five: CDR The Joint Case Management Order shall include a standard
provision that the CDR process must be completed by the parties within two
months of said Order.

f. Step Six: Post?CDR Order Setting Trial Date

If the court has not been notified of a full settlement during the prescribed CDR period, the court shall issue an order to declare the case ripe for trial and set a trial date, again informing the parties of their obligations to comply with the court schedule and the sanctions available to enforce such schedule as established in the Joint Case Management Statement. At the beginning of said trial, the court shall determine whether the CDR process further narrowed the issues previously framed in said Statement.

E. Consensual Dispute Resolution (CDR)

1. General Description and Objectives of CDR

a. Definition of CDR Options

CDR encompasses a variety of techniques (e.g., mediation, arbitration, judicial settlement, early neutral evaluation, conciliation, and settlement by Lok Adalat) designed to create a greater variety of options in the resolution of civil disputes. CDR allows litigants the opportunity to settle disputes in a consensual manner, through more conciliatory, less formal, and more flexible processes than in litigation. CDR mechanisms vary according to a number of options, including: the court's role in coordinating the process (court? sponsored or private CDR); the personnel (judge, retired judge, senior advocate, or non?lawyer) selected to serve as the Neutral; the method of generally qualifying and specifically selecting such Neutrals; the costs to the parties (if any) of compensating the Neutral; the relative emphasis on evaluative and/or facilitative processes employed by the Neutral; and the legal effect of the process (arbitral award, settlement, or partial settlement).

*67 Specifically, this Article recommends the mandatory short? and long?term adoption of the following CDR mechanisms: arbitration, conciliation, settlement through Lok Adalat, judicial settlement, mediation, and early neutral evaluation.

b. The Purposes of CDR

CDR is designed to provide a broader range of dispute resolution opportunities to extend beyond currently adversarial (to joint and conciliatory) and formal (to informal) processes. CDR is also designed to expand currently narrow remedial