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October 17, 2011
India Watch: Keeping Our Eyes on the Ball
September 19, 2011
Getting China Right
August 30, 2011
Japan Watch: 6 in 5
June 13, 2010
Whither India? Who will decide?
May 30, 2010
Bhutan for Canadians
May 23, 2010
Japan Decides
May 16, 2010
India: ‘See you in Court’
Joseph Caron
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May 16, 2010

India: ‘See you in Court’

Canadians like to point to the common legal and judicial traditions that unite Canada and India, but they don’t know the full story.

The retirement of Chief Justice Balakrishnan and the assumption of duties by his designated successor, Justice Sarosh Homi Kapadia, provided the media with an opportunity to take a look at some of the features of the legal system in India. The papers point to the fact that the Supreme Court’s backlog of cases is currently 55,971, up 6,100 since the same time last year. The outstanding case load of the High Courts is currently at just over 4 million, rising by 120,000 in twelve months. The District and Subordinate Courts backlog is over 27 million. The increase in the number of cases is partly due to the large number of ‘public interest petitions’, whereby citizens can formally address the Courts when they suspect that there has been abuse of government authority.

Another reason for this unimaginable backlog is that India has a disproportionately low number of judges: 12 for each million Indians. In Canada, the ratio is 64 per million, five times that of India.  The US proportion is almost ten times higher than India’s at 120 per million.

The situation is not helped by the fact that many of the judges’ positions  are vacant: there are four vacancies on the Supreme Court and the High Courts are only at 70 percent of authorized bench strength. And there are persistent reports, some well substantiated, about corruption among some judges.

One result of this growing backlog includes the fact that, on average, property cases take decades to wend their way through the system. Closing a company can take 9 years, partly due to the length of time it takes to obtain legal authority. For many businesses, the best legal strategy is keeping as distant from the legal system as possible.

All of this does not mean that the rhetoric of a shared legal framework  is entirely specious. It is not. India’s law schools teach British Common Law, which remains at the center of the curriculum, as it informs the common law system in Canada. Indian lawyers commonly quote legal principles in Latin, drawing on the Roman law heritage of European and British legal history and theory, as do many of our lawyers. Many of India’s current laws are newly amended versions of the British laws of the Raj. Most importantly, Canadian and Indian lawyers speak the same legal language, and of course they both do so speaking English.

This means that Canadian and Indian lawyers can work together with relative ease in drafting contracts, sorting out legal disputes, structuring mergers and acquisitions and so forth.

Where they differ however is with the degree to which they can rely on the court system to resolve otherwise intractable problems. In Canada, the court system works relatively efficiently and disputes rarely drag on for more than a year. ‘See you in Court’ may be a regrettable step, but does produce an outcome.

In India however, cases can take decades. ‘See you in Court’ is not a means towards the resolution of a dispute: it is a threat. The role of the Indian  lawyer, working with Canadian partners therefore, is to keep them out of Court. That’s what good Indian lawyers do for their clients, making them indispensable partners for Canadian businesses, especially investors, in India.

‘Our common legal heritage’ may sound good in a speech, but more reliable is a competent lawyer with a strong track record.