Statement of problem

The legislature in 1999 and 2002 came up with amendments to the Civil Procedure
Code, changing the nature of the statute. These amendments provided for reforms
which if uniformly implemented could further the aim of justice as envisaged by our
Constitution makers. However, the practicability of the amendments was
questioned and a report for the same was drafted. This report was challenged in the
Supreme Court of India, in the case of Salem Advocates Bar Association v. Union of
India. The court affirmed the amendments and upheld the report. The decision was
appreciated by both academicians and scholars. However, despite the judgment
bringing a change in civil litigation in India, it also suffered from certain flaws.
Therefore, this paper aims to analyze the said judgment, focusing on both the pros
and cons. The paper will also throw light on where the court went wrong and the
loopholes in the judgment. It will also make a case for the judgment, and highlight
the commendable aspects of the judgment.I

t is quite obvious that the reason why section 89 has been inserted to try and see
that all the cases that are filed in the court need not necessarily be decided by the
court itself. Keeping in mind the laws, delays and the limited number of judges
available, it has now become imperative that resort should be to Alternative Dispute
Resolution Mechanism with a view to bring an end to litigation between the parties
at an early date with a win-win situation.

Review

Fast always does not perfect

In the civil sphere, litigants are deterred by the disproportionate costs of

litigation. Thus the question posed is: whether a layperson can approach
the legal system, and expect an expeditious hearing, let alone a fair
outcome.

The class divide becomes particularly acute when many socio-

economically disadvantaged potential litigants are unable to access the
judicial system to seek redress, but are forced to engage with it as
accused, at the mercy of courts.

The response of successive governments has been largely

instrumentalist, with a focus on filling existing vacancies, increasing the
number of courts and judges and enlarging the judiciary's budgetary
allocation. It has also resulted in a trend towards 'tribunalisation' of
justice, with the advent of fast-track courts, jail-adalats, lokayuktas and
gram-nyayalayas (especially for rural litigants).

Tribunalisation has resulted in the emergence of two distinct legal

systems, one for the well-resourced urban litigator and the other more
'second hand' one for the poorer, rural litigant, a phenomenon termed by
Marc Galanter and Jayanth Krishnan as "debased informalism".

However, the problem in the Indian legal system is not the vast number of
cases going in. It is the relatively smaller number coming out.
Consequently, we need to switch our attention from trying to divert cases
away from the courts to strengthening the judiciary from within.

The third dimension of justice is premised on the limited resources

available to the court and the need for judges to manage their dockets
better. Undue delays are often occasioned by improper case management
with judges failing to exert control over the conduct of litigation.

While it is clear that this directly affects the parties to the litigation, the
adverse impact of the court's decision on its overall case load and
existing cases is often missed.

Although the SC first mooted the idea of case management in Salem

Advocates Bar Association vs Union of India in 2003 and the Law
Commission followed it up by releasing a Consultation Paper on case
management in 2003, neither the government nor the judiciary have
considered these proposals seriously.

Nevertheless, injustice is more than just a fundamental question of

access. It also incorporates the important notion of the quality of justice,
which forms the second component of the 'access to justice' framework.

This is the problem of inconsistent and arbitrary application of the law,

whether as a result of personal predilection of judges, fragmented two-
judge bench decisions (which prevent the SC from speaking in one voice)
or the often low quality of judging.
For the rule of law to be effective, we need a judicial system that is
capable of enforcing rights in a timely and proportionate fashion and in a
manner that inspires public confidence in the administration of justice.
This requires more than just setting up fast-track courts in response to
calls for swift dispensa