India’s troubled justice system

On 5 May 1978 life looked wonderful for Susan Leigh Beer. She was just 17, but the Australian swimming champion was on the verge of a glittering international career, with the next step the World Championships in Germany.

Beer was holidaying in India with her parents and brother, relaxing in Delhi’s five-star Akbar Hotel. Just after 5pm, she decided to join her family in the hotel pool, and jumped into the shallow end – at which point her life changed forever.

As is stated in the decision of the Delhi High Court at paragraph 54 of 73: “ … it has been established on the part of the plaintiff that the cause of injury was the fact that the plaintiff jumped into the pool at the shallow end and that her feet slid forward on account of the bottom of the pool being slippery. This resulted in her head hitting the side of the pool which ultimately resulted in her becoming a quadriplegic.”

The smooth-glaze tiles, it was found, were covered in algae as a result of poor maintenance; and despite the best efforts of first Indian and then Australian medics, Beer was left permanently paralysed from the neck down.

A bit of good news (one might think, in the circumstances) is that Beer successfully sued and obtained decree for 50 million rupees (about £700,000), but only after a bitterly contested proof. That figure included an award for loss of future earnings, for pain and anguish, and for other familiar heads of damages. It was also inclusive of interest from the date of the accident. For those particularly interested, the decision can be found at http://www.indiankanoon.org and is apparently one of the highest awards for damages ever made in India – although it is perhaps less impressive by UK standards.

Now the bad news, which is that the first instance the High Court in Delhi delivered judgment, and granted decree, was on 3 March 2011 – just shy of 33 years after the accident happened and 29 years after the action was raised in 1982.

Mercifully, the defending party does not appear to have taken up its right of appeal to the Supreme Court of India – in which case one wonders if Beer would ever have seen a single rupee. Shocked? Don’t be, because the truth is that Susan Beer’s case is unexceptional in India’s beleaguered justice system.

Judges are severely overworked, and litigants are reported to delay proceedings quite easily by failing to appear, forcing hearings to be postponed. The country has the unenviable claim to the greatest backlog of unresolved legal actions in the world, recently estimated by one High Court judge to be in excess of 30 million cases. Just last month, 11 people were killed and 61 injured when a bomb exploded outside Delhi High Court in a cowardly attack on the criminal justice system.

And yet this is the world’s largest democracy, a favoured daughter of the common law and home to a booming economy which has reported annual growth of 5 per cent, even in these challenging times. What’s more, over the next ten years India is looking to invest £1 trillion in infrastructure; and that is a prize which, for many Scots firms, will be well worth the taking part.

Two things, then, may be worth bearing in mind: firstly, a client moving to, investing or working in India might be well advised to think ahead. It is perhaps simply stating the obvious to say that India is no place to litigate at the moment. Secondly, the new and internationally acclaimed Arbitration (Scotland) Act 2010 offers a robust alternative method of resolving commercial disputes. It is already common knowledge that both Indian and foreign companies operating in India are happily resorting to binding arbitration agreements, in an effort to deliver fast and effective justice at lower cost. An agreement to arbitrate in Scotland could be to everyone’s advantage, and might just help give India’s troubled system some vital breathing space.

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