What Effective Measures Should Be Implemented To Eliminate The Inordinate Delay In Disposal Of Cases Pending In The Indian Courts?

[This article was originally written for a legal essay competition and was awarded the 3rd prize]

Justice Shri V.R. Krishna Iyer once said, “Man lives in the short run, but litigation lives in the long run”, to which former President of India Dr. APJ Abdul Kalam said, “How true! I would say that it literally crawls in the long run.”

The Constitution of India gives a lot of importance to the concept of justice. The preamble states that Justice- social, economic and political shall be secured to all citizens of India. Furthermore the right to speedy and affordable justice has now been classified as a fundamental right included under Article 21. Also Article 39-A, one of the Directive Principles states “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” In spite of such importance given to the concept of justice in the mother of all laws in India, the present scenario shows a blatant disregard towards this concept and a whopping number of cases are pending at all levels of the judiciary.

According to the Court News April-June 2010, there are about 33,362 matters (excluding connected matters) pending in the Supreme Court as on 31-8-2010. The 21 High Courts have a total of 4,108,555 cases- civil and criminal- pending as on 31-3-2010. And pendency of civil and criminal cases at the end of 31-3-2010 in the District and Subordinate Courts in all States of India is a gigantic number of 27,374,908.

Another glaring instance of ‘justice delayed is justice denied’ is the recent judgment for the Bhopal Gas leak case, where more than 25 years was taken by the lowest court for its decision and the 25 years taken does not include an appeal. This was the world’s worst industrial disaster, where the accused were guilty of about 15 thousand deaths. The decision of the Chief Judicial Magistrate was pronounced in June 2010, whereas the incident took place way back in December 1984. Such is the situation in India!

There is one illusion to be cleared before we start to get into the causes for the pendency of cases. There are two main factors for such pendency, firstly that the rate of disposal of cases is slow and secondly and more importantly the rate of institution of cases is considerably high. It is very important for us to understand that pendency has been increasing not due to the rate of disposal of cases but due to the increasing rate of institution of cases. Statistics show that the rate of disposal of cases has improved drastically, but despite this, the pendency has been increasing, and the main reason of this can be attributed to the fact that number of cases being instituted every year is very high. This shows we need better infrastructure to deal with the increasing number of new cases.

There are various reasons for the increase in the number of institution of cases. The population has increased, literacy rate has improved, means of communication and information have been enhanced, people are becoming more and more aware of their rights and thus more people are approaching the courts to enforce their rights. Also new laws are being framed, which give rise to further more rights which can be enforced by the courts of law. In addition, the concept of Public Interest Litigation has come forward, giving rise to even more cases. All these reasons should not be seen as a cause of concern but unfortunately there has been no consequent increase in the number of courts to deal with such increase in cases.

The number of judges per million of the population is not as per the required standard, the 120^th Law Commission had submitted a Report on 31-7-1987, which had set up the goal of 107 judges per million to be achieved by the year 2000. But unfortunately even till today the ratio is not more than 15 judges per million! Whereas in United States the ratio is 104 judges per million. The first step to be taken to mend this problem is to fill the vacancies in the judiciary. According to Court News April-June 2010, as on 1-9-2010, the vacancies in the Supreme Court is 2 out of sanctioned strength of 31 judges; the High Court has a total of 285 vacancies out of a sanctioned strength of 895; and the District and Subordinate Courts of all States have vacancies of a whopping number of 2980 out of 16990 sanctioned strength. Immediate steps must be taken to fill these vacancies. And apart from this, measures must be taken to increase the number of judges in existing courts of all levels. Besides this, steps should also be taken to increase the number of courts in India. Also great attention should be paid on the quality of the judges, their recruitment should be strict. Moreover, they must be trained at the time of recruitment and should also be given training at regular intervals thereafter. Laws are being made at a great speed and almost all Acts enacted in India create rights, duties, offences, which become subject matter for adjudication before some court of law and consequently the number of cases pertaining to them is also increasing. So the more the laws enacted, the more are the cases and a resultant increase in backlog of cases. But neither is the number of judges increasing nor is the number of courts sufficient to deal with the new litigation arising out of the newly made laws. Though every Bill in the Parliament or the State Legislature has a financial memorandum attached to it, which mentions the required allocation from the Consolidated Fund of India/State, but this does not cover the financial implications of the Bill from the judicial aspect, it only covers the money required for the administrative expenditure. Whenever a new law is made, its Bill should mention the approximate expenditure which may be incurred by reason of its judicial impact, and allocations should be made for the purposes of dealing with the consequent cases arising thereof by making provision for setting up new courts or recruiting more judges for the above purpose.

The court staff also plays a very important role in the judiciary; they are responsible for management and quick movement of court files and other related work. The court staff should be well trained and efficient. They should be well versed with computer technology and must have managerial skills.

Defective legislation is one of the main reasons for the high institution of cases. Justice P.N. Bhagwati had recently observed, “This slovenliness in drafting is becoming rather common these days.’’ Many laws are being made in haste, on a large scale, without paying due attention to important details; some laws are conferring wide discretionary powers to the executive; sometimes they are not drafted properly and hence litigation arises over its interpretation; and some laws are litigation friendly, e.g. The Supreme Court interpreted a provision of The Industrial Disputes Act, 1947, in favour of the labour class, where it held that there was no time-limit to challenge termination of services of the workman, also the burden of proof that the workman has worked for 240 days or not was on the employer. As a result of this interpretation innumerable workmen challenged their termination orders years after their termination, which gave rise to a very large number of cases. Thus the laws should be balanced. If, a large number of cases are being instituted under a particular Act, then it is because either the law or its interpretation is causing injustice to the people, this should be seen as a warning sign and immediate measures should be taken to cure this injustice, either by the courts or by the legislation itself.

Another major reason for the delay in justice is the long vacations and the less working hours of the courtrooms. The Supreme Court of India works for approximately 190 days and the High Courts work for 220 days out of the 365 days of the year. In addition to this, work timings of Courts are less compared to other Government offices and are nothing in front of the working hours of the private offices. Why should the courts enjoy the privilege of vacations? They are not school children. Vacations of courts were for the British judges to escape the summer of India. They have gone, but have left behind the practice of vacations in Courts. Legal services should be declared as essential services, to be made available on all days. A shift system should be introduced in the courts, where additional Judges are appointed in evening courts, after the regular courts, as a result of which the existing infrastructure will be utilized to its optimum level. The State of Gujarat has introduced such shift system in the lower courts which was brought into effect from 14-11-2006. The number of cases disposed of by such courts is very high. Such system should be introduced in courts all over India.

The Prime Minister of India, Dr. Manmohan Singh, had mentioned in his address to the Conference of Chief Ministers of States and Chief Justices of the High Courts, 2004, that one way of reducing the backlog in courts is to reduce the number of cases that come to the courts and referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed. The Government is the biggest litigant. A lot of cases arise due to arbitrary actions of the executive or complete inaction of the officials, where a lot of injustice is caused to the general public. Most of the cases on behalf of the Government are rejected on matters other than law, as they are considered frivolous and uncalled for. Most of the cases heavy costs are awarded. Besides wastage of precious time, a lot of public money is wasted by the Government for such unwarranted cases. Efforts must be made on behalf of the Government and all its departments that a majority of the cases be solved at the pre-litigation stage within the department itself so that a poor and helpless citizen is not unnecessarily thrown in the judicial tangles. Also a committee must be set up, which may consist of senior advocates and retired judges, to filter out the cases which involve important questions of law and determine which cases should be pursued by the Government. A direct result of this committee will be that the cases filed by the Government would be reduced by a high number and a lot of time and money will be saved.

Concept of plea bargaining has already been introduced, by amendment in the Criminal Procedure Code, but it has not gained the required publicity. Plea bargaining should be encouraged by the courts, by informing the accused of the provisions of plea bargaining contained in chapter XXI-A of the Code of Criminal Procedure, 1973, while issuing summons to him. Plea bargaining would be beneficial for both the courts as well as the accused. The courts will save a lot of time and money on prosecuting the accused, examining the witnesses; and the accused, will get a lesser punishment compared to what he would have got after the long trial. Another benefit would be that appeals would be reduced. Even the victim would get relief and mental satisfaction. A lot of time of the courts and more importantly of the accused, would be saved. This additional right would be most beneficial to the under-trial prisoners. This practice has gained wide acceptance in United States and other Western countries and must be implemented in India on a wider scale.

So also, the category of compoundable offences should be widened; this would give relief to the victims in terms of money as well as time and would save the accused from enormous expenditure required for his defense. Then there are cases where offences are punishable with fine only or with less than 3 months imprisonment, such should be dealt by separate courts which can give speedy justice. Sometimes it so happens that the money spent by the accused for his defense in the courts is far more than the money which can be claimed as fine! Priority should be given to old cases. There are times where the victim or the accused is already dead, but the case is still going on. Also there have been various cases where a person has been imprisoned for a time which exceeds the punishment prescribed for the offence, and after so many years of imprisonment the accused is acquitted. Moreover there are cases which become infructuous over a period of time, where the main case has been decided, but the cases related to this case (which has already been decided) are still pending and are of no relevance anymore. It may also be called as fake pendency, where the cases are pending only for namesake. Such cases must be identified, and listed separately so that they can be disposed of quickly, as their disposal will normally not take much time.

Courts should promote ADR i.e. Alternative Disputes Resolution system, where arbitration, negotiation, mediation and conciliation are the amicable way of settling disputes. Abraham Lincoln had once said, “Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time.” The ADR system creates a win-win situation for both the parties, unlike the adversarial system of resolving disputes in Courts of law. Section 89 of the Code of Civil Procedure has already been amended w.e.f. 1-7-2002 to implement such a system in India. Institutions should be set up to train mediators and conciliators to properly perform their job. Training should be imparted not only to the mediators and conciliators, but also to the lawyers. Another requirement of a successful ADR is adequate infrastructure which includes sufficient space, manpower, and other facilities. Settlement of disputes through courts is not only heavy for the pocket and the time of a person, but it also affects the mind of the person so involved on the case. Whereas settlement of disputes through ADR is not only faster, less expensive, but also more satisfactory in result, as the ultimate result is based on the consensus of both the disputing parties. Wherever there is a slight possibility of resolution of disputes through the ADR, the disputing parties should be encouraged to pursue that mode of settlement.

Lok Adalat and Mobile Courts have been introduced in pursuance of fulfilling the objectives enshrined in Article 39-A of the Constitution of India. Justice will be imparted by faster and cheaper means to the poor and needy people by making it available at their doorstep in different remote parts of the country. A main cause of delays is adjournments, which is many times due to the distance from the courts. The litigant cannot come to the courts on all the dates fixed, and thus, seeks for adjournments, which gives rise to delays. Lok Adalat and Mobile Courts ensure that justice is not denied to any citizen by reason of economic or other disabilities. Legal Services Authorities Act 1987 gives statutory recognition to resolution of disputes through the medium of Lok Adalats. The object of the Act is to decongest the over burdened courts of law. It is one of the methods of ADR, and its origin can be traced back to the panchayat system followed in the yester years. The biggest advantage of ADR mechanism is that the cases are resolved by a mutual consensus, and thus the chances of the parties preferring an appeal become very less. Main objective of Mobile Courts is to settle the dispute at the earliest, by making justice available at the door step of the people. The key difference between Mobile Courts and Lok Adalat is the manner in which justice is dispensed; so while in Mobile Courts, cases are decided exactly the way it is in any court of law, with a proper judge, judicial staff, the only difference being that it is on wheels; whereas in Lok Adalat cases are decided on the lines of the panchayat system. Mobile Court was first launched in 2007 in Haryana, and has now been adopted in 15 States. Mobile Courts achieve the objective of making justice more accessible. Lok Adalats and Mobile Courts must be set up in all remote places of the country.

The Government has also set up Fast Track Courts to deal with long pending cases in the Sessions Court and long pending cases of under-trial prisoners. The Fast Track Courts were to be functional till 31-3-2005 according to the Eleventh Finance Commission. But The Supreme Court, which is monitoring the functioning of Fast Track Courts through the case of Brij Mohan Lal Vs UOI & Ors observed that the scheme of Fast Track Courts should not be disbanded all of a sudden and in its order dated 31^st March, 2005, directed the Union of India to continue the Fast Track Courts. 1562 Fast Track Courts have got approval for continuation for a further period of 5 years i.e. till 31-3-2010. The Fast Track Courts have disposed 21.16 lakh cases out of the 28.84 lakh cases transferred to them so far. More Fast Track Courts should be established, to deal with other types of cases pending in other courts.

Introduction of technology in the judicial system would be another method of shortening the average life of a case. Provision of e-filing of a case in the Supreme Court had been introduced on 2-10-2006. Use of information and technology in the judiciary can help in simplifying and improving the day-to-day management in courts. Once complete computerization is done, a lot of court space which was earlier occupied with papers can now be utilized for other purposes, such as setting up of court rooms. This will also cut down costs incurred for preparation of case papers, it will also prove to be environment friendly as a lot of paper will be saved. Video conferencing with the accused would be faster, cheaper and safer way, of examining them or granting remand, it can also be used in recording of evidence and examination of witnesses, who do not stay in the vicinity or are scared of giving evidence in open court. Access to court decisions and availability of the status of a case pending in a court are other steps for digitization. Advanced scientific tools and biometric technology must be used for identifying criminals, habitual offenders. Introduction of advanced technology would make the judicial delivery system affordable, accessible, cost effective, transparent and accountable.

It is the responsibility of the Government to ensure that the objective enshrined in the preamble is not overlooked. The Governments must allocate more funds for the judiciary. The Parliament has the power under Article 247 of our Constitution to establish additional courts for better administration of laws made by Parliament or of any existing law with respect to a matter enumerated in the Union List. But this power has never been used by the Parliament. Also more than half the cases dealt by the trial courts, which come under the State Government, are cases dealing with Acts which are Central enactments (e.g. The Indian Penal Code, Criminal Procedure Code, Civil Procedure Code, Transfer of Property Act, Contract Act, Negotiable Instruments Act) and come under either List I (Union List) or List III (Concurrent List) of the Seventh Schedule of the Constitution. Therefore the Union Government must allot a particular percentage of its budget to the State Governments to set up more courts to deal with the burden of cases arising out of the Central Acts. But it is very sad that neither the Union Government nor the State Governments allocate a significant part of their budget for creation of Courts or for increasing the manpower of the judiciary. Articles 224 and 224-A of the Constitution make provisions for the appointment of Additional and Ad-hoc Judges, such Judges should be appointed to deal with the overload of cases.

Efforts should be made for controlling crime, as reduction of crime will have a direct impact on the criminal justice system. Number of criminal cases will drastically reduce. This will be ensured if there is an efficient police force, prosecution is strong, use of scientific methods of investigation, better detection of crime, certainty of punishment.

Active cooperation is required from the Bar and the Bench. A sense of punctuality should be prevalent among both. Quality of the lawyers is also a very important means for improving the justice delivery system. The Bar should make a conscious decision of avoiding prolix and repetitive arguments and instead written notes should be preferred. The Bench should be careful in delivering their judgment, they should ensure that the language used in the judgments is free from ambiguity, they should be clear and decisive and its interpretation should not give rise to further litigation by way of appeals. The courts should regularly publish statistics dealing with institution and disposal of cases, so that awareness is created and measures can be taken to improve the situation.

A high pendency causes a lot of injustice to the people. Long trials cause a lot of mental agony to the parties so involved. There have been many cases where parties to the case have died before the decision. There are also many instances where the witnesses to the case have become so old, or due to lapse of time, have forgotten important details, or in many cases it so happens that the important witnesses die before completion of the trial. Many instances have occurred where an under-trial prisoner is imprisoned for a period longer than the prescribed punishment and has later been acquitted by the court, what remedy can be provided to such a man, who has been made to suffer more than required by law, for doing nothing? High pendency affects not only the persons so involved, but also affects the nation. Shri Veerappa Moily, Law Minister stated in a seminar held in 2010 “Poor judicial performance costs a country dearly.” University of Bonn study says an efficient judiciary can increase per capita income growth rate by 1.9%.

With the kind of cases being filed today which seek to enforce the basic human rights of the needy and the poor, the judiciary is gaining importance and is becoming a very powerful institution of the State. The high rate of institution of cases is a good sign, which shows that people of the country have not lost faith in the judiciary. But it is very important that the faith is kept unbroken. A strong and efficient judicial system is the foundation of a democratic State. Immediate and effective steps need to be taken by the Government and the judiciary, to get the situation in control. It is hoped that very soon all the deficiencies that have crept into the system will be eradicated and that timely and inexpensive justice will be ensured to all.