Reimagining India: Unlocking the Potential of Asia’s Next Superpower (31 page)

And why should a student in rural Odisha not have access to the best teachers of Delhi, especially if those teachers are government paid? Elite institutions have created artificial barriers to admission while their teachers draw salaries from public funds. Lectures, notes, and assignments of any teacher paid by the government should be online. Teachers who are found to be unqualified should all become tutors or assistants in courses given by the masters.

Presumably the reason for my reconsideration of Pratham’s motto is now clear. Remember, this is the land of Ekalavya—a hero of the epic Mahabharata—who because of his caste is denied access to the knowledge of Dronacharya, the great teacher of Pandav and Kaurav princes. When it turns out that Ekalavya has taught himself to become a superbly skilled archer, he is not only denied certification but also forced to cut off his right thumb to prevent him from using his “illegally acquired” knowledge.

It is time for the Ekalavyas who have been denied access to the masters and high-quality content to be given the chance to compete for high-level certification. What I propose may appear anarchic and impractical. But there are elements of what is possible tomorrow in the reality of today. India should seize the opportunity to reinvent its education process.

Zia Mody

Zia Mody is managing partner of AZB & Partners, one of India’s largest law firms.

Shortly after I returned from five years of practicing law in New York to start afresh in the Bombay High Court, a woman approached me about her nephew. She had allowed him into her home, but he later physically assaulted her and even threatened to seize ownership of her apartment. I told her that since he could not be called a forcible trespasser, we would have to file a suit that could take seven years to resolve. She did not return. I bumped into her sometime later and inquired about the case. In a soft voice she told me, “I sorted it out.” In short, she had resorted to extrajudicial means to get the justice the court could not deliver to her in a timely manner.

Her experience is all too common in India today. India’s judicial process is effectively a defendant’s court, in which the accused can drag out proceedings almost indefinitely. If justice delayed is justice denied, then for millions of Indians, their judicial system regularly fails them. In India, a civil case can take anywhere from a few years to a few decades to conclude—a situation that presents a formidable challenge to the country’s development. India’s legal system is founded on the bedrock of Commonwealth jurisprudence as adjudicated by some of the world’s finest justices. As such, it ensures that legal outcomes are consistent and that India operates under the rule of law and not fiat or political whim. But in the Indian system, the wheels of justice grind too slowly.

Two recently concluded criminal cases highlight India’s judicial torpor. The first was the trial of Ajmal Kasab, the lone surviving gunman in the 2008 Mumbai terror attacks. The case was given highest priority. Kasab, a member of the Lashkar-e-Taiba (Army of God) militant group, was found guilty of eighty offenses, including murder, waging war against India, and illegal possession of explosives. He was sentenced to death by the Bombay High Court in February 2011, a sentence that was upheld by the Supreme Court in August 2012. Kasab was executed the following November. That his case took “only” four years was celebrated as a great triumph for India’s judicial system.

The second high-profile case involved Sanjay Dutt, one of Bollywood’s most popular actors. Dutt was arrested in 1993 under India’s Terrorist and Disruptive Activities Act on charges of illegal possession of a 9mm pistol and an AK-56 assault rifle, and implicated in the March 1993 “Black Friday” bombings that killed more than 250 people in Mumbai. A special court was set up to exclusively hear all cases relating to the 1993 bombings. Even so, Dutt’s case dragged on for twenty years. In 2007, he was cleared of terrorism charges but sentenced to six years’ imprisonment on the weapons charge. The Supreme Court upheld that decision in March 2013, although it shortened his prison sentence to five years. As his trial ground on, Dutt starred in one blockbuster after another, sometimes as a mobster, sometimes as a cop chasing down terrorists, and flirted with a career in politics.

The sheer volume of legal actions accounts for most of the delay in India’s judicial system. According to data published by the Supreme Court of India,
¹
a staggering 31.2 million cases were pending in India at the end of March 2012. More than 80 percent of them were in the lower courts. The
High Courts of India—comparable to circuit courts in the United States, though India has a unitary court system with no separate state and federal courts—had more than four million. The Allahabad High Court takes the prize for the most backlogged docket, with over one million cases pending. India’s Supreme Court had over fifty-nine thousand cases pending. The good news is that lower court dockets have been shrinking since 2010. The ominous news is that since appeals are relatively easy and cheap to file, the backlog of cases before India’s higher courts will continue to grow.

The roots of this judicial gridlock are many, but a leading cause is India’s surprisingly low number of judges per capita. Data compiled by J. Mark Ramseyer and Eric Rasmusen
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suggest that for every 100,000 people, the United States has 10.8 judges, Canada and Australia between 3 and 4. India has just 1.2 judges for every 100,000 people.
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Judges’ pay is linked to government pay scales of bureaucrats. The need to delink is obvious but not considered a priority. Yet first-year associates at some law firms in India draw higher salaries than Supreme Court judges, whose monthly pay plus perquisites is approximately 200,000 rupees ($3,100). Prestige and a passion to mete out justice must be the defining characteristics that drive the higher Indian judiciary.

Reforms to improve standards, salaries, and continuing judicial education in the lower judiciary would go a long way in addressing some of these underlying issues. More courts need to be set up and more judges
appointed, but that requires a greater allocation of state resources. Judicial reform is largely not a high-priority item for the government, as it yields few political dividends in the short run.

India’s legal system also suffers from a systemic leadership crisis. The chief justice of India—the most important judge in the country and the only person capable of reforming the judicial system—serves in office for little over a year, on average.
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As a result, no chief justice is able to make long-term changes and see them implemented. India’s legal culture is partially to blame as well, as it lays far too much emphasis on the courtroom as the crucible of justice. This dates back to the colonial era, when judges considered it inappropriate even to read case papers at home, for fear that they might bias themselves before hearing the arguments in court. Today, although most judges read case papers in advance, far too much court time is wasted on arguments. Cases are frequently adjourned and poorly managed.

The political system has at least begun to address some of the procedural problems that beset India’s legal system, starting more than a decade ago with a series of far-reaching amendments to the colonial era Code of Civil Procedure of 1908. Now, affidavits, typically drafted in advance by lawyers, have replaced direct witness testimonies. Witnesses can still be cross-examined, but this process can take place before a “commissioner” out of court. Another amendment makes it mandatory for courts to send a case for alternative dispute resolution if “elements” of a settlement appear to exist. Cases that would ordinarily have taken years to get started have now commenced thanks to the evidence collection amendments.

The change is especially perceptible in the Delhi High Court, where suits that once took ten years or so to be decided now take two to three
years. E-filing has also become more prevalent in the Delhi High Court—a few of its courtrooms are entirely paperless, and it is mandatory in some cases to submit both electronic and paper versions of filings. Apart from some formal procedural amendments, several steps have been taken to address the backlog. In Mumbai, the Bombay High Court transferred most of its original jurisdiction to subordinate civil courts in the city. Fast-track courts have been set up in some parts of the country to decide criminal cases, especially in the wake of the recent brutal gang-rape of a girl in Delhi. Further, the rate at which a judge disposes of his or her cases is now taken into account in determining promotion.

India’s judicial system provides swift outcomes for some litigants. Clever litigators have developed strategies to circumvent judicial delays. Though it takes several years for a case to reach final judgment, some litigants in commercial cases in just a few months can obtain from a court “interim relief” in the form of temporary orders issued before the case is decided. This tactic often forces the losing party to negotiate in earnest to avoid years of delay and the risk of an adverse final decree. Although problematic, such approaches provide an avenue for the sophisticated litigant to avoid the law’s delay.

Despite its shortcomings, India’s judicial system remains the country’s bastion of the rule of law, standing above the clamor of party politics and ensuring that justice is done, even if often too slowly. Time and again, courts have risen to address political crises, to hold officials accountable, and not only to keep fundamental human rights alive but also to give those rights meaning. Judges are overworked and underpaid, but the vast majority of them are respected as men and women of the highest integrity. India may not have the well-oiled judicial system to optimize the legal transactions needed by a rapidly modernizing and globalizing country, but it does have a judiciary that should be the envy of many other societies. And the reforms introduced both nationally and in some of the High Courts demonstrate that speeding the judicial process and bringing it into the twenty-first century requires only that India’s political leaders come to understand the benefits to society of modest investments in the legal system.

NOTE: The author wishes to thank Stanford Law School research fellow Abhinav Chandrachud for his contributions to this essay.

Rajiv Lall

Rajiv Lall is the executive chairman of the Infrastructure Development Finance Company.

In India, journeys often involve travel through time as well as across space, as today’s India spans multiple historical time zones—from the ancient to the ultramodern. A recent trip began in the soaring departure lobby of the new Terminal 3 at Delhi’s Indira Gandhi International Airport, a cathedral of glass, steel, and duty-free shopping, built to accommodate sixty million passengers a year. I flew to Varanasi, a city of 3.5 million, famed as the spiritual capital of India’s Hindu and Buddhist communities, but for those of us who live in the material world, it lacks a functioning system for solid-waste disposal, and driving across town can take hours. When I finally reached National Highway 2, a splendid new six-lane toll road, I covered the 130 kilometers to the outskirts of Allahabad in less than ninety minutes.

At Allahabad, I took the last exit to a rocky hilltop that offers an awe-inspiring view of the Sangam, the confluence of the Ganges and Yamuna Rivers and the site of the Kumbh Mela, a religious festival held every three years, said to be the world’s largest gathering of humanity. As dusk descended, I gazed down upon an enormous tent city connected by 156 kilometers of temporary roads and illuminated by twenty-two thousand streetlamps, all provided by the government of Uttar Pradesh. On February 10, 2013, thirty million faithful, under the direction of multiple religious orders, bathed at the Sangam, an area of about twenty square kilometers, largely without incident. How are Indians capable of such
discipline and organization unable to clear the garbage that litters the streets of Varanasi a few kilometers downriver? How can we make telecommunications affordable to the millions carrying cell phones at the Kumbh but not give them access to clean drinking water or toilets at home? This is the great conundrum of infrastructure in India.

india’s infrastruggles

In the twentieth century, the quality of public infrastructure—roads, water, sanitation, electricity, and telecommunications—became the sine qua non of economic development. In most countries, the public sector built and maintained the vast bulk of those essential services. Private participation emerged only about thirty years ago, when chronic budget deficits obliged many governments to seek new sources of capital.

In India, however, our fiscal stresses emerged long before the government had a chance to build public infrastructure to minimum global standards. Populist electoral politics have pushed a rising share of government spending into wages, interest payments on public debt, and nonproductive subsidies such as for fertilizer and fossil fuel. What little remains for public investments goes first to education and health care, where the government must be the service provider of last resort.

India has had to turn to the private sector for help in building and maintaining crucial public infrastructure. Over the past decade, government spending on infrastructure increased modestly from 3.5 to 4.4 percent of GDP while private investment in infrastructure, all but nonexistent in 2003, expanded to nearly 3 percent of GDP in 2011. But India lags far behind China, where infrastructure investment has remained constant at approximately 9 percent of GDP for the past two decades, and trails the 7.3 percent for developing Asian countries in 1992–2010. The McKinsey Global Institute has estimated the value of all Indian infrastructure at about 60 percent of GDP, well below the ratio in China or most developed countries, where infrastructure is typically valued at more than 75 percent of GDP.

Private sector investment in Indian infrastructure would seem a win-win for both the public and the private investors who provide the
capital and expertise. Citizens generally understand that some level of private profit is essential to attract investment, but the topic has not been fully discussed, and politicians have done little to prepare the electorate for the inevitable controversies. India’s leaders also failed to recognize that this rapid intrusion of the private sector into the public space required an upgraded administrative and regulatory infrastructure. These political and administrative inadequacies have combined to produce a particularly toxic concoction, what I call India’s infrastruggle cocktail.