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Bar at war: The politics around pecuniary jurisdiction (or one big reason why it’s so hard to reform legal sector) [via Mint]

Rajiv Khosla (l.) and Abhijat Bal (r.)
Rajiv Khosla (l.) and Abhijat Bal (r.)
This week in Mint, Legally India dove into the complicated and fascinating politics of the Delhi bar.

On 4 March in the Rajya Sabha, law minister DV Sadananda Gowda tabled a bill in Parliament that proposed shifting thousands of cases from the pendency-laden Delhi high court to the less busy district courts.

According to the uncorrected parliamentary transcripts, immediately Janata Dal (United) member KC Tyagi from Bihar objected. He said the bill conflicted with another that was in the process of being drafted.

After a short interchange, Gowda agreed quickly with the suggestion of deferring the bill, with the house's deputy chairman finally concluding, “I think, the sense of the House is to defer this Bill. The Minister has agreed to the suggestion and has no objection to it.”

Delhi district court lawyers were flabbergasted.

“We are going to relaunch our agitation again,” threatened Inder Singh Saroha, the president of the Rohini Court Bar Association Delhi, last Friday, talking of a plan by all district bar associations in Delhi to go on strike on Tuesday.

According to two sources close to the bar associations, the strike was going to be cancelled by them because it clashed with the Bar Council of India (BCI)-called national strike, about the alleged killing of an Allahabad lawyer by a policeman, which was scheduled for Monday.

The fight over pecuniary jurisdiction is clearly far from over.

Update: Delhi Bar Association secretary wrote in a text message late on Monday evening that in view of the coordination committee's decision "complete strike is observed tomorrow (Tuesday) on the issue of pecuniary jurisdiction". The strike has since been extended possibly until the end of the week.

Worth fighting for

The issues around The Delhi High Court (Amendment) Bill 2014 are important but not complicated, and at first glance only to lawyers.

Right now, if you want to sue someone in Delhi about something worth more than Rs 20 lakh, you must go to the Delhi high court to get relief.

If your matter is worth less than Rs 20 lakh, you may approach one of Delhi's lower courts (including the Tis Hazari, Patiala House, Rohini, Karkadooma, Dwarka and Saket district courts).

That Rs 20 lakh figure is the pecuniary jurisdiction.

In 1966 Delhi district courts' pecuniary jurisdiction began at Rs 25,000, was raised in 1970 to Rs 50,000, in 1980 to Rs 1 lakh, in 1992 to Rs 5 lakh, and in 2003 to Rs 20 lakh.

Trouble is, nowadays nearly nothing (worth fighting for) is cheaper than Rs 20 lakh, and the Delhi high court is increasingly bogged down in most routine civil disputes that never even appear in a lower court.

“Any property dispute, anything in Delhi, would be above Rs 20 lakhs. The high court would look at (practically) every original civil proceeding (in Delhi),” explained Meghna Mishra, partner at Delhi litigation firm Karanjawala & Co.

The tabled (and now deferred) bill aims to increase that limit – the “pecuniary jurisdiction” – tenfold, from Rs 20 lakh to Rs 2 crore, meaning that at least 12,211 cases pending in the high court would get transferred to the less busy district courts. Also moving from the district court would be eight district court joint registrars who are currently on deputation to assist high court judges with such original civil side cases.

“I think it's a good idea because pendency in the Delhi high court is a serious issue and an impediment to litigants. Even if the high court judges are working really hard, the legal system given what it is, the sheer numbers are too high,” noted Mishra.

“The numbers are now so high, what's happening in the high court is, you either get relief on day one (with an injunction), or (your case) keeps sitting (there for years) in the pipeline.”

The proposal to increase the pecuniary jurisdiction was cleared by a full bench of the Delhi high court on 21 November 2012, was then cleared by the Union law ministry and by a parliamentary standing committee in November 2014. This included detailed consultations considering suggestions and objections from a number of stakeholders, such as evidence about the approaches followed in Maharashtra and Kolkata, where the state governments can change the local pecuniary jurisdiction amounts (and have increased it to Rs 1 crore in 2012 and 2013 respectively, with a few exceptions).

A very rough back-of-envelope calculation does show that district courts have more capacity than high courts. Figures released by the Supreme 31 March 2014 reveal 65,159 cases pending in the Delhi high court with 38 judges – which works out to 1,715 pending cases per judge (the figure – 1,745 – is similar when comparing 12,221 pending original side cases as against seven high court judges hearing those matters).

By contrast, the Delhi district courts had a total of 522,118 cases pending, with an actual strength of 483 judges on 31 March 2014. This works out to 'only' 1,080 pending cases per district court judge.

It might seem like a bill that should be routine to pass, but the political fronts surrounding it have been fiercely at loggerheads.

Opposite (but equal?) reactions

The Delhi High Court Bar Association (DHCBA) has opposed the proposal since 2012, including with strikes and threats of strikes, while the Delhi district court bar associations have repeatedly protested against the lack of progress on reforms.

The most recent round of strikes was in December 2014, with district court lawyers abstaining from work for three days to protest the delay at passing the bill increasing the pecuniary jurisdiction, and the DHCBA holding a counter-strike with their own hunger strike.

Ram Jethmalani, senior counsel and elder statesmen of Delhi's bar politics, intervened on 13 December 2014 with a letter sent to prime minister Narendra Modi, alleging forces within the BJP were working against the bill, which “the vast majority of lawyers have insisted upon”.

“(The bill) is being now obstructed by someone in your cabinet,” he wrote:

The lawyers are on strike for the last few days and they are threatening a march to Parliament sometime next week.

On my advice from Calcutta they called on your first Law Minister (Ravi Shankar Prasad) who assured them that the Bill will be passed soon. But then some other minister, you guess who it could be, put a spoke in the wheel that this bill will only be taken up along with another Bill.

The lawyers then saw him too but he refused to commit himself. Then they saw the new Law Minister (Gowda) who is reported to have said that he is in favour of the Bill but he is under great pressure from his colleague in government without naming anyone.

… I met them on my return to Delhi last night. They were a very disappointed and angry crowd.

Districts 6

The Delhi district court bar associations are pretty much united in wanting to get heightened pecuniary jurisdiction through as fast as possible.

And though, in light of delays so far it seems likely they'd be satisfied with Rs 2 crores, the demand for increased pecuniary jurisdiction does not necessarily stop there. “It should be unlimited as it is in other states,” said RK Wadhwa, the president of the Patiala House Bar Association; Saroha of the Rohini bar association agreed (the majority of India's district courts, except for some such as in Mumbai, Kolkata or Chennai, do indeed have jurisdiction to hear cases without any upper pecuniary limit).

“It is in the interest of the public, and it is in the interest of the judiciary even because judges are sitting idle in the lower courts,” said Saroha.

“Most of the civil judges here in the district court have five cases maximum per day, whereas in the high court, judges are handling cause lists of 80 cases,” said Wadhwa.

Both agreed that the reform would bring justice to the doorstep of litigants all over Delhi, who won't have to travel to central Delhi to the high court anymore but could instead take advantage of district courts scattered from Rohini to Saket.

Practically no one would ever choose to file in the high court unless seeking a specific type of relief, such as an injunction, which is more easily obtainable in the high courts.

Litigants (and their lawyers) would intentionally under-value their claims to get in below the Rs 2 crore threshold, so that most original civil suits in Delhi would disappear from the high courts.

Possible benefits for litigants and the greater considerations of justice aside, of course, it also means juicier matters for district court lawyers, while the practice of those specialising on the original side of the Delhi high court, almost exclusively, will lose some of its lustre and cases that attract media attention.

Wadhwa said: “I have no hesitation in saying that the government (by deferring the bill) is only acting at the hands of influential persons who'll be benefited in the courts.

“There are a couple of the lawyers who get the benefit out of all those things, and they're very close to ministers. They are not letting it happen.”

Hitesh Jain, litigation and corporate partner at ALMT Legal who works in Mumbai and Delhi, agreed. “They are not interested in reforms and administration of justice. It is the decision of a handful of people.”

La resistance

At the core of the resistance lies the Delhi High Court Bar Association (DHCBA).

The body's secretary, Abhijat Bal, denied that a small number of high court practitioners were holding back reform of the system and that they were doing it to protect their own practice. “These conspiracy theories are but a figment of their imagination. I don't know why they do it but there's some kind of misinformation campaign in the district courts.

“It's not about lawyers, it's about litigants,” he said.

The high court has better infrastructure than the district courts (“we are going to be a paper-free high court”, said Bal), there are “more experienced judges in the high court benches” and “you need better minds to adjudicate on disputes of larger stakes”.

On the other hand, claimed Wadhwa, the government had spent a lot of money too on beefing up the district courts.

One Delhi high and district court advocate claimed that a “challenge that comes with practice in those (lower) courts is the kind of people and culture that has crept into those courts. I suppose with better lawyers coming into that system, it would certainly see a change. A slow and gradual change”.

Bal also claimed that any periodical sweeping of cases to the lower courts just ends up in them “piling up again” after several years of inefficiencies in the lower courts.

Advocate Ashish Dixit, who practises in both district and high courts, disagreed, saying that in district courts the average pendency was only two or three years at most for civil, whereas you're lucky if a case ever finishes in the high court at all because of high courts' greater propensity to grant injunctions, after which one side will always have a great incentive to delay proceedings.

“You can mix it any way you want, the matters in district courts get decided 20 times faster than in the Delhi high court,” agreed Dushyant K Mahant, who practises in both high court and district court.

And he claimed, echoing another advocate, that the bill would only increase the work in the Delhi high court, as the interesting appeals from the district court would continue to come to the high court rather than end up in an endless cycle of adjournments.

Bal is scathing about allegations that the government was influenced by the high court lobby to defer the bill, by bringing up the Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015, which is currently being drafted.

The commercial courts bill, which was part of finance minister Arun Jaitley's budget speech this year and is based on recommendations of the law commission, envisages creating a special track of the high court exclusively for high-value commercial matters.

Rajya Sabha member Tyagi had claimed – and Gowda had agreed - that it would be best to take up the pecuniary jurisdiction bill together with the commercial courts bill, whenever that was finished.

Tyagi and Gowda did not respond to emails seeking comment.

“I don't think there's any conspiracy angle, just good governnance,” said Abhijat about the government's decision to defer the bill. “Harmonious legislation will certainly emerge. Parliament has done a wise thing by not adding to the confusion and waiting for a bit.”

Indeed, one issue that would have to be ironed out is the exact pecuniary limit. Abhijat complained that the Rs 2 crore figure was “a mystery” without “statistical study”.

The commercial courts bill and the pecuniary jurisdiction increase “are related in the broader scheme of things” noted Jindal Global Law School assistant professor Suvrajyoti Gupta. The previous draft commercial courts bill envisaged certain commercial disputes above Rs 5 crore to go to the high court's new commercial track. The law commission's recommendation for commercial courts, on the other hand, lay much lower, at Rs 1 crore - a figure that Parliament could have amended rather than deferring the entire pecuniary jurisdiction bill.

If jurisdictions of commercial, district courts and high court would start to seriously overlap, we'd risk increasing the patchwork court system across all states.

Democracy in action

Within the DHCBA, there's not necessarily agreement on the right approach.

In March 2014, Rajiv Khosla, a former president of the Delhi Bar Association which primarily includes lawyers in lower courts and, therefore, a relative newcomer to high court politics, won the presidency in a hotly contested election that included the old guard within DHCBA trying (unsuccessfully) to prevent Khosla from entering court premises on voting day.

“No doubt I am president but we have to see the larger exercise also,” said Rajiv Khosla about the DHCBA and the debate around pecuniary jurisdiction.

Khosla has been vocally in favour of increasing the pecuniary jurisdiction, though he is currently leading a minority faction on the issue – the vote on the green light for the December 2014 DHCBA strike was only carried by the slimmest majority according to sources.

“I have certain differences on this with our committee members,” explained Khosla. “Some people (lawyers) think their bread and butter will go from the high court, but it's not a question of bread and butter, it's how can we provide speedy justice to litigants.”

“There is obviously in every elected body discussion and debate, what emerges is collective sentiment of committee,” said Abhijat, admitting that it was not a unamious vote to strike, but denied that there was a split in the DHCBA. “There's absolutely no divide – that is all in the realm of speculation. Obviously the president (Khosla) had taken a stand in favour of the jurisdiction going (to the district court) when he was leading the district court bar, so there is a conflict of interest situation.”

Khosla has also floated the idea of concurrent unlimited jurisdiction for both the high court and district court. “Wherever aggrieved party wants to file a case, let it be,” he said.

“Concurrent jurisdiction is practically not possible,” said Mahant, because by default the vast majority of litigants would opt for the district court rather than the high court. “Two or three years ago, that was only raised to calm the (DHCBA) down.”

A possible compromise that could keep both sides from being too unhappy, could be the Maharashtra model, where the district courts have jurisdiction up to Rs 1 crore, but the Bombay high court retained exclusive jurisdiction over a few areas, such as intellectual property and divorce cases.

What is clear, however, is that the government will be unlikely to have the appetite for creating more confrontations than necessary when dealing with the legal community.

This article was first published in Mint yesterday. Mint's association with Legally India will bring you regular insight and analysis of major developments in law and the legal world.

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