Unshackling the Elephant
… Let’s discuss solutions
A practical approach to legal reforms
Typically, the method adopted to fix our slow and ineffective legal system has been to change the substantive law in the hope that big-ticket changes will fix everything. An example of this is the focus on increasing the punishment for rape instead of focusing on delivering speed and certainty of conviction and punishment. There is no need for new laws when our problem has been the implementation of existing laws. The same holds true in the space of civil and commercial laws as well. If we can implement them well, we will not need to introduce special legislation. Yet, the reaction to any failure is to bring in a new set of laws, which either subvert established principles of democratic law, as in the case of the bail provisions in the PMLA,16 or are likely to be equally ineffective because the real problem of implementation would not be addressed, as in the case of an increase in punishment for rape. Although some of the problems with our legal systems are a legacy of the British Raj, veteran lawyers and judges will tell you that the laws were much better implemented in the past. In my view, only a few changes are required to bring about a large impact. My first suggestion for change is to move away from thinking in terms of new laws and to think more in terms of speedy implementation of existing laws. It would be more practical to focus on enhancing the level of justice rather than postponing all reforms until we have the perfect solution. For enhancement of the speed with which cases are handled, we would need to use a combination of technology measures, some processes and fewer structural changes. Technological innovations will be a great enabler for this. The other important requirement would be to create an environment where the balance lies in favour of compliance.
BLOOMSBURY INDIA
12 Unshackling the Elephant rather than transgressions, and where the common man is in natural alignment with the laws of the land. When the Indian mindset is in sync with the law, compliance comes naturally to the citizens. In addition, the imperial legal principle of ignorance of the law being unacceptable as an excuse ought to be done away with, and instead the government should be tasked with educating all citizens about their legal obligations. Finally, there are a few general changes that will have to be made to reinforce the independence of the justice system. Greater professionalism would bring about a service-provider orientation in the judiciary and bring back a common-sense approach to law and its enforcement. …
Anand Prasad
Senior Partner, AP&Partners, Advocates
