In the fast crumbling judicial system of India, the need of the hour is to have speedy disposal of pending civil and criminal cases in order for the Indian public to continue to have faith in the judiciary. For example the Uphaar tragedy case has been going on in the courts for approximately 18 years. This is despite the fact that the general public is aware of the fact that the tragedy took place because of inadequate fire safety measures at this cinema hall. Similarly conviction in the 1993 Mumbai bomb blast took approximately 14 years. This is only to name a few high profile cases. As per the information available on the National Judicial Data Grid, at present there are more than 2 crore civil and criminal cases pending before the various courts in India. Of this, more than 24 lakh cases have been going on for more than 10 years. The Supreme Court in its judgement in the case Noor Mohammed v. Jetha Nand & Anr1 stated that the judicial system in India suffers from slow motion syndrome which is lethal to the fair trial process. The Supreme Court also remarked in this case that speedy justice is a component of social justice since the community is concerned in the criminal being finally punished and innocent being absolved from the inordinate ordeal of criminal proceedings. Systemic and chronic delay in the justice delivery system has an impact on the faith of the common man in the judicial system.
An alarming trend is that there has been a steady growth in the number of criminal cases in India over the past few years. Of the 2 crore cases pending before various courts in India, approximately 33 per cent are civil and the remaining 67 per cent are criminal in nature. This trend can be an indicator that delays in the justice delivery system, uncertainty of outcome and inflexible results can contribute to social unrest and communal violence and accordingly there can be an increase in the number of criminal cases.
Delays in the judicial system have also been recognised on the global platform. India has been ranked in the World Bank’s annual Doing Business 2017 report at 172 positions amongst 190 countries in the enforcement of commercial contracts. This is definitely not good at a time when India is portraying itself as a major investment destination.
In this article we have analyzed the reasons as to why there is a delay in the disposal of cases, some of the consequences of such delay and how to remedy the same.
As the number of civil and criminal cases is on the rise there is an increasing need to enhance the number of judges as well. An important cause for the increase in the number of cases is changes in Indian legal regulations. For example, amendments to the Negotiable Instruments Act, 1881 which has made cheque bouncing a criminal offence, introduction of the Protection of Women from Domestic Violence Act, 2005 has resulted in a significant increase in the number of criminal cases. Hence there is a requirement to have some sort of an impact assessment system in place so that before any new legislation is in place an analysis is done of the potential impact/fallout on the litigation in India and accordingly there is an increase in the number of judges.
While the number of cases is rising there has been no significant increase in the sanctioned strength of judges at the Supreme Court, High Courts and other subordinate courts. The average case load is 2000 cases per judge. As per the Law Commission report in 1987 the number of judges in India were only 10.5 judges per million as against Australia which had 41.6 judges per million population, Canada 75.2 judges per million, England 50.9 judges per million population and the United States had 107 judges per million population. The Law Commission had recommended in the aforementioned report to increase the number of judges to 50 judges per million population. Since then, as per some recent news reports, the number of judges has increased to 17 judges per million population. However, the same is still significantly less as compared to other countries such as United States, Canada and Australia.
As per the information available on the website of the Department of Justice, there 8 vacancies in the Supreme Court and 433 vacancies in High Courts. Hence there is an urgent requirement to not only fill up these vacancies but also increase the number of judges. The need to increase the strength of the judges has from time to time taken up by the legal fraternity at various seminars and conferences. The former Chief Justice of India, Mr. T.S. Thakur, had also at the annual Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts held last year emphasised the need to increase the number of judges to deal with the huge backlog of cases.
The appointment of judges has been also delayed in view of the current debate surrounding the collegium system in India. This system recommends the names of judges to be appointed in the High Court and the Supreme Court of India. The Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior most judges of the court. Similarly, a High Court collegium is led by its Chief Justice and four other senior most judges of that court. The names suggested by the collegium are sent to the government. The government thereafter gets an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. If the report of the IB is to the contrary then it can communicate the same to the collegiums and request clarifications. However, if the collegium once again recommends the same names then the government is bound to appoint such individuals as judges.
The aforementioned collegium system has been criticised as it lacks transparency as regards the parameters on the basis of which the collegium recommends the names of the judges, eligibility criteria, etc. The proposal to set up the National Judicial Appointments Commission (NJAC) and the proposed constitutional amendments had been struck down by the Supreme Court in 2015. However, the said ruling of the Supreme Court suggested that a Memorandum of Procedure be drafted by the Indian Government to guide future appointments. However, the same has not yet been done. Also the Indian Government has slowed down the process of clearing the appointment of future judges on the High Court and the Supreme Court.
Hence the need of the hour is not only to speed the pace of the appointment of judges but also to bring in more transparency in the selection process.
Also the general public should have a voice in the selection process to bring in more transparency in the appointment process. For example, in the United States, some states have opted for the partisan and nonpartisan election system. In this system the judges are elected by the general public. While in the partisan system, the details of the political party to which the judges are affiliated are revealed, in case of nonpartisan system, there is no such disclosure. Another method of selection of judges is the merit selection process. In this system, a nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list of candidates. After serving an initial term, the judge must be confirmed by the general public through an election process in order to continue serving as a judge. Such selection process may also bring in more transparency in the judge selection process.
Most of the procedural legislations in India such as the Code of Civil Procedure and the Code of Criminal Procedure are quite old. They are not in line with the current social reality of the country. These procedures lay down the path for the aggrieved litigant to file appeals, reviews and revisions. While these procedural legislations were introduced with the good intention of ensuring fair justice to all and avoidance of judicial errors, the same has been misused time and again to stall the justice delivery process in India.
A review of these centuries old legislations must be carried in the light of the current scenario as these were enacted at a time when the population as well as the litigation was much less.
In addition, the current legal provisions should be effectively implemented and abuse of the process of law should be prevented. Order XVII Rule 1 of the Civil Procedure Code 1908 puts a cap on the number of adjournments that can be granted in a civil proceeding to three. However, the courts may, if sufficient cause is shown, grant time to the parties and may adjourn the hearing for reasons to be recorded in writing. This flexibility in granting of adjournments is frequently abused in courts on a day to day basis as lawyers seek adjournments on various, often flimsy grounds such as travelling plans of the lawyers, illness, etc. Judges should judiciously exercise the powers vested in them by the Civil Procedure Code and limit the number of adjournments in a particular case. For example, jurisdictions like Malaysia have strict rules regarding requests for postponements and the Chief Justice and other senior judges conduct spot checks and surprise visits to ensure that these rules are implemented. In the United States the judges, while hearing requests for adjournments, must balance fairness to the parties (that is, right of the parties to be heard and the possible prejudice to the other parties in delaying a proceeding) with public interest (which lies in efficient administration of justice and wise use of public funds).
Very few litigants in India in commercial/civil cases opt for arbitration and mediation to resolve their disputes. A principal cause behind it is the lack of awareness amongst the legal fraternity of the advantages of such alternate dispute resolution mechanisms. Due to such ignorance they do not direct their clients to such processes.
There should be awareness amongst the legal fraternity of the alternate dispute resolution mechanisms in India and they should in turn inform their clients of the existence of such mechanism and encourage and support them to go through these processes. Workshops, seminars and legal awareness programs should also be organised to educate the judicial officers about the relevance and importance of the alternate dispute resolution process and the need to refer pending cases to such processes
The judiciary should also encourage resorting to such mechanisms to reduce the burden on the judiciary to clear the huge backlog of cases in India.
Information technology has greatly eased the judicial functions over the past few years. A simple task like ascertaining the status of a pending case which took several visits to the court to follow up with the support staff in the past is now just a click away. The chaos and confusion which prevailed earlier for listing of cases, obtaining certified copies, tracing files, etc. is no longer there.
However, information technology can be more effectively used. Information technology could be used for the day to day trials. Lawyers can argue their cases through video conferencing methods in case they are unable to attend the court physically. Information technology could also be used to record evidence, take statement of witnesses, etc. This will not only bring transparency but also prevent lawyers from engaging in delaying tactics and will assist in better recording of the proceedings.
It can also be effectively used to report case precedents. The directions of the High Court and the Supreme Court are binding on the lower courts and the lower courts are required to abide by them. However, it has been seen in a number of cases that the judges at the lower courts are unaware of such case precedents and may pass judgements that are contrary to the directions of the Supreme Court and High Courts. It is therefore imperative that the judgements of the High Court and the Supreme Court are immediately reported and the lower courts have easy access to such judgements.
Information technology can also be effectively used to monitor the performance of judges. For example, a case tracking system can be developed to record the number of cases before a judge, number of adjournments granted, and time taken by a judge to dispose off a case.
Many of the judges, mostly in the subordinate courts, are sent on deputation, that is, as Law Officers in the Law Department, Registrars of Tribunals, as secretaries of Legal Service authorities and directors of various Mediation centres, etc. A number of judges spend considerable amount of time of their judicial career by working on deputation. This trend not only results in wastage of valuable time of the judges but also results in wasting the judicial skills of the judges as well as harms the judicial temperament and the impartiality developed by the judges over a period of time.
This may also impact their integrity and impartiality as they are required to frequently organise legal awareness campaigns, Lok Adalats, etc. and in doing so are required to liaise with lawyers, police, politicians, etc.
A good judge for the speedy and effective discharge of justice, needs to be well acquainted with the laws in India and should have the skills to conduct a proper hearing, in particular in recording evidence and hearing arguments. The judges should also not let adjournments impede the progress of the case. Also they should have time management and people management skills.
In this regard although there are judicial academies for imparting training to the newly appointed trial judges, High Court judges, these judicial academies do not have the requisite skilled teachers to impart such trainings.
Without proper training these judges end up spending more time on the cases than is actually required and this ultimately leads to accumulation of pending cases.
The administrative staff in the courts plays a pivotal role in the speedy disposal of cases. Judges require their support in order to perform effectively and efficiently. Slow and inefficient support staff can lead to slow or incorrect recording of evidence, statement of witnesses, typing of orders resulting in the judges spending considerable amount of time in reviewing and revising the documents. Also a court officer, who is unable to properly organise the court hearings may create confusion and commit mistakes thereby affecting the efficiency of the judges.
There is an increasing requirement to train the administrative staff in the courts on all these functions. They should also be imparted technical training for effectively recording statements of witnesses within the least possible timeline.
Judges can also consider encouraging the practice of providing internship to students from various law schools. These students can conduct the research work required in a particular case and do the initial drafting.
Many a times there are directions by the High Court and/or the Supreme Court to dispose off certain cases on an urgent basis or on a day to day basis. While issuing such directions they tend to disregard that there are a large number of cases that are pending before the judges already. Such work pressures should be minimised to the extent possible so that the judges can function fairly and freely.
Looking into the huge backlog of cases, speedy and effective disposal of cases by the judges can be made one of the performance indicators. In India although there is a system for evaluation of judges in the lower courts, there is no particular evaluation system for judges in the High Courts and Supreme Court. Having no systemised judicial appraisal system is one of the reasons for the tardiness showed by the judges in disposal of cases. Hence a framework must be put in place to assess the performance of judges. For example, under the merit selection process in the United States the sitting judges are evaluated to inform the voters about a judge’s performance for the retention elections.
Such performance evaluation mechanism can play a significant role in reducing the delays in justice delivery system caused due to frequent adjournments. For example, in Malaysia in 2008 the federal courts in Malaysia brought in some significant reforms to expedite the justice delivery system in Malaysia. These reforms included (a) the introduction of a new case management system which involved pre-trial processing, overseen by a designated managing judge, (b) introduction of a tracking system to facilitate the closure of old cases and creation of weekly quotas for judges, (c) closer monitoring of judges’ activities and establishing targets for productivity and delay reduction, (d) creation of specialised High Court divisions in civil and commercial Law to address recent cases, (e) development of an automated queuing and e-filing system. Pursuant to these reforms the World Bank, at the request of Malaysian judiciary, prepared a progress report and this progress report showed that the aforementioned reforms were successful in reducing the adjournment of cases. As per the World Bank’s report in 2011 judge caused adjournments in civil cases in Malaysia had virtually disappeared.
Lok Adalat’s is a system of alternate dispute resolution developed in India. It is generally used to settle disputes related to motor accident claims, matrimonial, family, labour, etc. The primary motive behind such type of courts is to provide relief to the burden of the courts.
Similar on the lines of Lok Adalats, specialised courts can also be set up in India to deal with specialised cases such as taxes, environmental laws, terrorism, etc. The Supreme Court in Brij Mohan Lal v. Union of India & Others2 gave priority to fast track courts for disposal of sessions case which were pending for a long period of time and/or those involving undertrials. In this case the Supreme Court also emphasised on the following steps to be taken for the setting up of fast track courts:
The judicial system in India will be considered as effective not only when it gives speedy justice but also fair and efficient justice at a reasonable cost to all. The failure of the courts to dispose off cases within a reasonable time frame can have serious repercussions on the administration of justice as adequately captured in the saying “justice delayed is justice denied”. Delays in the justice delivery system, uncertainty of outcome and inflexible results can become the reason for social unrest and communal violence. In addition, it can also have a negative impact on the business and investment sectors of India. It is therefore the need of the hour to increase the number of judges in the Indian courts as well as implement at least some of the above mentioned measures to tackle the delays in the justice delivery system.
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