Abstract
In unique as well as comparative terms, the Indian judiciary—an integrated federal hierarchy with federal, state and district courts set up under the Constitution—fares better than the legislative and executive branches of the governments in India as well as those in other countries, especially in the Global South, in terms of impartiality, efficiency and independence. This article seeks to take a closer analytical look at an aspect of judicial administration, which is often glossed over in the existing literature in highlighting the issues of autonomy and constitutional adjudication and constitutional law on fundamental rights of citizens, federal division of powers, separation of powers, judicial review and the like. In this article we focus on the perennial and notorious judicial delays, their causes and remedial reforms. Delays in speedy disposal of cases occur mainly due to a large number of vacancies that remain unfilled partly due to fiscal reasons, administrative inaction and tension between the executive and the superior courts, lack of adequate operational budgetary allocations and physical infrastructure and frequent postponement of hearings until next dates set for reasons not always genuine. We have suggested reforms in the administration of the courts as well as alternate forums like Lok Adalats, e-judicial governance, ethical discourse in the Bar and the Bench as well as the civil society.
Introduction
The modern Indian judicial system is one of the oldest in the Afro-Asian world, its history going back to the Regulating Act, 1773 enacted for India by the British Parliament. The Constitution of India (1950) has established an integrated federal judiciary in India comprising the Supreme Court at the apex, high courts in the states, and district courts and courts subordinated thereto. The judicial branch of the Indian federal parliamentary system fares reasonably well in comparison with the executive and legislative branches as well as with judiciaries of other political systems. In fairness and independence as well as critically creative and innovative jurisprudence, the constitutional courts in India have created global standards worthy of potential and actual emulation and imitation, for example, its judicial doctrine of the unamendability of the ‘basic structure of the Constitution’. 1
Judicial Delays
Where the Indian legal system has miserably faltered is in terms of the attributes of speed and efficiency, which feature in any discussion of the quality and credibility of the judicial delivery system, democratic legitimacy of the political system and the ease of doing business in the era of marketisation and globalisation. A new systematic study by the Vidhi Centre for Legal Policy, New Delhi, of 8,086 rulings of the Delhi High Court between 2011 and 2015, reveals, rather confirms, the endemic delays still plaguing the Court. Delay in this study is defined as such if a case has been in court for more than 2 years, it tries to find out the reasons for the delay. Its finding is that in 91 per cent of delayed cases (exclusive of 36% cases timely disposed of), it was the lawyers who asked for postponement. The study concluded that 82 per cent of all delays could be attributed to the lawyers and not to the judges per se. This limited study needs to be replicated more systematically as well as more widely. For example, delays on the side of judges or courts in this study are measured as the absence of the incumbent judge. Thus, if the number of judges were larger, absences could have been reduced. 2
According to a source more than 22 million cases are currently pending in district courts, 6 million of which have been lingering for longer than 5 years. The number of cases waiting to be heard in high courts is 4.5 million, and that in the Supreme Court is more than 60 million as per the recently available official data. These figures have been decennially increasing rather than going down (Doshi, 2016).
Causes of judicial delays in India are numerous, including inadequate number of judges, poor physical infrastructure, problematic procedures in the civil and criminal procedure codes, the slow computerisation of courtrooms and tardy reliance on alternative dispute resolution mechanisms such as Lok Adalats, arbitration and mediation. The backlog problem is more acute and alarming at the level of subordinate judiciary where the mass public contact with the court is most critically dense. In 2005, the number of pending cases at this level was 2.78 crores! (Team Maheshwari & Co., n.d.).
The Law Commission of India, Report No. 245, earnestly asserts:
Denial of timely justice amounts to denial of ‘justice’ itself. The two are integral to each other. Timely disposal of cases is essential for maintaining the rule of law and providing access to justice which is a guaranteed fundamental right. However, as the present report indicates, the judicial system is unable to deliver timely justice because of huge backlog of cases for which the current judges strength is completely inadequate… The present report is aimed at addressing this scenario that demands a multi-prong approach including more sensitive and rational judicial manpower planning. (Government of India, 2014)
The Law Commission in 1987 called for the need of fifty judges per 10 lakh people but little has been done in this regard and India still stands at a meagre number of eighteen judges per 10 lakh people. This is in contrast to the ratio of the countries to which India is often compared. For instance, there are 140, 107, 51 and 42 judges per 10 lakh people in China, the USA, Canada and Australia, respectively. 3 The root of the breakdown can be traced to the immense pressure and lack of services that the judges face every day. While the increasing population and the increasing number of applicants in law schools across the country should indicate a growing number of judicial officers as well, but the data presented below show the otherwise.
Table 1 shows the number of pending cases in the various states of India as on 1 December 2018.
Table 1 shows the total number of pending cases in each state ranging from the highest to the lowest level. These figures are an indication towards an almost stagnant judiciary that requires an urgent action in order to move forward smoothly and swiftly in a positive direction. The causes for this backlog can be many, such as the number of judges, infrastructural decay, political pressure, continuous adjournments, among others, which are briefly discussed below.
Number of Pending Cases in High Courts, and District and Taluka Courts
The sanctioned and working strength and vacancies in the Supreme Court and High Courts as on 1 December 2018 are shown in Table 2.
The data clearly indicate an acute state of shortage of incumbency in the key courts of civil, criminal and constitutional jurisdictions.
A number of suggestions were made by the Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice headed by Anand Sharma. Presented in 2016, the report was titled Inordinate Delay in Filling up the Vacancies in the Supreme Court and High Courts. Along with other things, it asked for a swift finalisation of the Memorandum of Procedure which otherwise is burdened by lack of consensus among the judiciary and the executive; the Memorandum of Procedure must include timelines for the appointment of Supreme Court judges, which is currently not taken with much seriousness but must be abided by; the appointments must be transparent and the eligibility criteria for the same must be made available for the wider population; retired judges should be given the task of hearing the pending cases; the age of retirement should increase by 3 years for both Supreme Court and High Court judges. 4 Similarly, several other commissions have come out with a number of reports in the past addressing the same issue like the report by Law Commission of India in 1958 that alleged the low number of judges as being the cause of delays, this was followed by the 77th report in 1978, 78th in 1979, 79th in the same year, 121st in 1987, 124th in 1988 followed by many more. 5
We would, however, be mistaken to believe, as already briefly alluded about, that it is only the number of judges that is not the cause of the problem. Attention needs to be drawn to other factors as well like the infrastructural decay. The alarmingly small number of courts pose another threat to the already deteriorating condition of the judiciary. In addition, a bench headed by Chief Justice T. S. Thakur said, ‘The collegium has cleared 75 names of high court judges (for transfer/appointment), but they have not been approved. I don’t know why, where are these files stuck’ in regard of the delayed appointments. 6 The Apex Court itself as on 1 December 2018 had four vacant posts with only twenty-seven appointed judges instead of thirty-one.
On the other hand, the figures of the Supreme Court and High Court vacancies as in Table 2 are even more disturbing. The twenty-five courts of India (including the Supreme Court and High Courts along with the newly established Telangana High Court) require 1,111 judges but as we take a reality check, we realise that there are only 722 judges at work. Therefore, there are a total of 388 vacancies but nothing seems to be done about it. We need to ask ourselves, where are we lacking? What is stopping the authorities to fill in the positions lying vacant?
Sanctioned Number of Judges, Working Strength and Vacancies in Supreme Court and High Courts
Not only the courts but its supporting departments are also falling behind. For instance, there are thirty-eight forensic science laboratories in India, out of which thirty-one are under the control of the state governments and one under the Central Bureau of Investigation. Out of a total strength of 8,216, appointments have been made for only 4,427 posts while 3,789 lie vacant. 7 Courts are adjourned and justice is delayed yet again when laboratories are unable to submit reports in time. These departments call for attention and these problems must be paid heed to in order to ensure speedy trials. The adjournments are one of the biggest reasons leading to the delay of justice in India. These are announced more liberally than they should be with the reasons behind them being inappropriate at most times. As a result, lawyers take advantage of it when they do not prepare for their case leading to delayed justice. To combat this problem, the Civil Code Procedure of 1908 argued for not more than three adjournments in a case. However, according to a report by a legal policy advisory group, more than three adjournments were made in 70 per cent of the delayed cases. As a result, the lack of strictness and a liberal attitude add on to the already intensifying problem. 8 Moreover, in the case of Thana Singh v. Central Bureau of Narcotics, it was advised that ‘liberal adjournments must be avoided and witnesses once produced must be examined on consecutive dates’. 9 In addition, in Anil Rai v. State of Bihar, the Supreme Court judgement stated that the concerned Chief Justice can and should intervene if a judgement is delayed beyond 2 months, the parties can appeal to the High Court for a speedy judgement if it is delayed beyond 3 months, and if it is further delayed for another 3 months, the parties can appeal for the withdrawal of the case with a request to start it afresh. 10
Another factor worth consideration are strikes by both lawyers and judges. The 1994 strike by junior judges in Delhi resulted in the adjournment of 35,000 cases in only a few days. Later, lawyers of Uttarakhand went on a 445-day strike. It is hard to imagine how many cases could have been addressed in this long period of time. No one but the common man suffers and nothing can be more disappointing to experience when the system is already sluggish. The demands of the judiciary should thus be dealt with almost immediately to avoid the resulting delays. Lawyers and judges, on the other hand, should also realise the cost of their absence and find other ways to protest if necessary or avoid it altogether. Unlike India, the American Committee on Professional and Judicial Ethics of the Association of the New York Bar issued an Ethical Code that declared any strike by a lawyer unethical if he/she has an active case. Initiatives of this kind have largely been absent in India! The Indian judiciary’s painfully slow proceeding does nothing but fills the pockets of the lawyers who instead of helping their clients focus on fetching money. 11 The Supreme Court in the light of such strikes said, they are ‘clearly illegal and it is high time that the legal fraternity realises its duty to the society which is the foremost’. 12
The Supreme Court said,
Judicial service as well as legal service are not like any other services. They are missions for serving the society… Posting of suitable officers in key leadership positions of Session Judges and Chief Judicial Magistrates may perhaps go a long way in dealing with the situation. Non-performers/deadwoods must be weeded out as per rules.
In addition, the Supreme Court also asked for quick disposal of criminal cases, wherein the High Courts decide upon bail applications within a month and the subordinate courts do the same within a week. 13
A major problem that comes along with the delays of the judiciary is the over-crowding of the prisons. Most people spend more time in the prison than what they should have after being punished under the law and others spend their entire lives waiting for a trial because of delays in the court proceedings. It is of urgent need to address problems like these due to the fact that many of those who are innocent have been locked up behind the bars and cannot seem to get out given the painfully slow judiciary. The apex court in the context of the prisoners is of the view that undertrials who have spent years in jail are proved guilty later, must be released if they have already served their term while waiting. 14 Courts across India, in a number of cases have tried to establish the importance of Article 21 of the Indian Constitution, which guarantees an individual his/her life and personal liberty. For instance, in the case of Akhtari Bi v. State of M.P., the court said that bail should be granted if a case has not been heard for 5 years. 15
Finally but most importantly, what must be taken into consideration is the autonomy of the judiciary, which otherwise guaranteed by the Constitution, seems under continuous threat due to politicisation of the judiciary. India is one of the few countries to have granted its judiciary an independent and autonomous status but politicisation and corruption appear to have crept in even in higher courts to some extent. To take an example, the case of the allegedly fake encounter of Sohrabuddin Sheikh and Kausar Bi which has raised many questions on the increasing pressure on the judges by politicians. Facts were clearly manipulated and reports were changed, a judge was transferred and one lost his life under mysterious circumstances. The change of report by investigating officer Geetha Johri where she first said Amit Shah tried to prove that Kausar Bi was not Sheikh’s legal wife are said not to match the police reports; she also played an instrumental role in highlighting the fact that Kausar Bi was murdered but later according to the Central Bureau of Investigation, she had attempted to hide the identity of Tulsiram, the eyewitness; Justice J. T. Utpat who was hearing the case was transferred only a day before Shah was to be presented in the court. What is important to highlight here is the fact that the Supreme Court had ordered the entire course of the case to be heard by under the same judge from the beginning to the end. Moreover, the next judge appointed, Justice B. H. Loya, died under mysterious circumstances before the final hearing of the case. While the family earlier admitted that the judge was offered bribe to give a decision favouring the officials, they later changed their opinion to the Justice dying of a heart attack under normal circumstances. 16
Reforms
One of the best reforms brought to bring down the burden of the Indian Judiciary has been the creation of the Lok Adalat. Based on the Gandhian principles, the traditional Indian and National Lok Adalat was set up with an aim to share the ever-increasing number of cases and have to some extent fulfilled their agenda. The 42nd amendment to the Constitution of India in 1976 came up with the idea of a Lok Adalat, the same year in which Article 39A was added to the Constitution with an aim to ensure that justice is not denied to any citizen of the country. The first Lok Adalat to be established after Independence was in 1982 in Gujarat and it got a statutory status in 1987 under the Legal Services Authority Act. The National Legal Service Authority was established under an Act to implement the programme. The cases in the pre-litigation stage pending in the courts are solved in these Adalats. Those that require quick results like matters of family disputes, pension, bank recovery cases, finance cases, etc. are taken care of. Both the parties reach a compromise in a way that neither loses nor wins. These courts can, however, solve only those cases in which both the parties agree to take the case to a Lok Adalat. These new-age courts have successfully solved crores of cases over a period of two decades. What is remarkable about them is that they are allowed to make their own procedures that the common people can understand and which is in line with the culture of the place where they are set up. Further, the decisions made by these Lok Adalats are a result of a consensus or a simple majority and are final and binding on the parties. However, if the parties are not satisfied with the verdict, they may approach a higher court where the case will start anew following the routine procedure. 17
Lok Adalats can be set up on the following levels: (a) state legal service authority, (b) district legal service authority, (c) Supreme Court legal service committee, (d) High Court legal service committee, and (e) taluka legal service committee. The organisation of the Lok Adalat consists of a chairman, an advocate and a social worker. The judges and chairmen are mostly retired judicial officers.
Another remarkable move aimed at bringing down the pressure of the courts was brought about by the National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary, 2005, which laid down the foundation stone for e-courts. It was an initiative taken by the then Chief Justice of India with an aim to make the judiciary more accountable to the people. By making the judicial proceedings transparent, e-courts in a way redeem the lost trust of the people in the judicial system. The entire project was subdivided into two phases in which the first phase, with a total budget of ₹935 crore aimed at the computerisation of 14,249 district and subordinate courts by March 2014. The second phase, on the other hand, was approved in January 2014 by a Supreme Court e-Committee with a budget of ₹1,670 crore for the further enhancement of the earlier laid down aims and objectives. In addition, there was a new set of goals to achieve, like computerisation of around 8,000 new courts, connecting the Indian courts to the National Judicial Data Grid, etc. Strengthening the second phase, the former Chief Justice of India, Deepak Misra, in August 2018, came forward with a number of mobile applications like e-filing, e-pay and NSTEP (National Service Tracking of Electronic Processes) in order to provide litigants with a chance to access judicial services with the tap of a finger. 18
This initiative has benefitted the judiciary and the people in a variety of ways. By computerising the courts and its services, it creates a digital repository keeping every record safe, easily accessible and time-saving. Instead of visiting the courts every now and then, litigants can track the progress of their cases through the internet or mobile applications. Court fees can also be paid through e-pay, a unified portal that allows the user to pay the fees securely and ensures transparency. In a more recent development, e-courts were set to start in Madhya Pradesh from 23 January 2019, which aimed at saving the time and money of the people and the courts. For the trials involving video conferencing, court rooms are set up in 126 districts. The idea of video conferencing will ensure speedy trials by allowing those essential for the case to be present in the court with the use of technology if they are unable to be there in person. The benefits that have come out of this endeavour are many, like there are instances when those convicted are unable to attend the court proceedings due to the unavailability of police guards among other reasons. In addition, around 2000 policemen are appointed every day to take prisoners to the courts in order for them to be present in the court proceedings. Combatting these issues, court rooms are made in a total of eleven central jails, forty district jails and seventy-five sub-jails with the convenience of video conference, thus reducing the pressure of the courts and allowing the manpower to be deployed for other substantial tasks. 19
Furthermore, the Eleventh Finance Commission in 1998 came up with the idea of setting up 1734 fast-track courts around the country due to the increasing number of pending cases and pressure on the judiciary. The responsibility of setting up these fast-track courts lay on the state governments that had been sanctioned ₹502.90 crore by the Ministry of Finance, Government of India. Initially for a period of 5 years, it continues till date after the order by the Supreme Court. Out of the 38.90 lakh cases transferred to them, the fast-track courts have managed to resolve 32.34 of them, thus playing a major role in bringing down the number of pending cases. 20
After the 2012 Delhi gang rape, the setting up of special fast-track courts dealing with rape and assault cases against women and children was felt as a result of which the Ministry of Law and Justice advised for 1,000 such courts to be established across the country. In addition, the Ministry of Women and Child Development in a statement said,
The Empowered Committee of Officers under Nirbhaya Fund, under the chairmanship of Secretary, Women and Child Development (WCD) Ministry, has approved the following three major proposals which include setting up 1,023 Fast-Track Special Courts (FTSCs) to dispose of pending cases of rape, and extension of POCSO Act across the country.
21
Another step that should be taken to recover the lost efficiency of the judicial process can be to set a minimum number of cases for a day that must be managed by each court. This figure can be decided by analysing and thus arriving at an average of the number of pending cases, and the cases being registered each day. Further, there should also be a prescribed deadline to complete the proceedings of the cases. This will encourage the judges and specially the lawyers to offer speedy solutions who otherwise do not care much about justice and treat it as a business. This will not only ensure a quick and efficient judgement but will also reduce the overload. American Chief Justice Arthur Vanderbilt rightly said, ‘It is not knowledge of ways and means that we lack; it is the will to put them into effect’ (Warren, 1958).
The failure in punishing those breaching law and order is causing the people to take up wrong means to deliver their own justice. For instance, if X kills Y’s father and the slow judiciary is unable to deliver justice, Y might resort to unethical means in order to seek revenge from X. This unnecessary move will increase the crime rate along with another case for the courts to handle. In addition, such a system encourages people to take laws for granted who go on to disrespecting the law and order resulting in the common man yearning for justice that might never come his way.
Conclusion
To sum up, this article has examined an aspect of administration of justice in Indian courts with special reference to the vexatious problem of judicial delays in the Supreme Court, High Courts, and district and subordinate courts. The otherwise appreciable performance of the courts in terms of constitutional adjudication and judicial review and impartiality and independence of courts of constitutional jurisdictions is partly blemished by an enormous number of pending cases waiting long for final disposal. This lowers the efficiency and credibility of the courts to the detriment of the legitimacy of the political system, the ease of doing business in India and the performance of the economy, and causes social disorganisation, and cultural decay. Since the 1980s and 1990s, the collapse of communism in the USSR and Eastern Europe; the end of social democracy welfare states in Western Europe; and the decline of liberal welfare state in North America, the UK and Scandinavia opened the way for neoliberal economic reforms premised on privatisation and globalisation. India too has suffered a measure of state failure necessitating governance reforms in the dominant public sector of the economy along with partial withdrawal of the state from economy in favour of the relatively more successful private sector of the economy. Politicisation of the judiciary and judicial delays make India less attractive for national and multinational investors.
The major causes for judicial delays are inadequate budgetary allocations to the courts, large number of vacancies that remain unfilled for long, a relative lack of ethical and moral discourse in the Bar and the Bench, and endemic corruption in the lower courts now also creeping upwards. Urgent reforms are required which are not too difficult, given the political and the judicial will and civil society pressure. We suggest the fairly obvious remedial measures to remove judicial vacancies and moral sensitisation, besides some alternative institutional mechanisms like Lok Adalats and technological aids to efficiency, transparency, accountability and incorruptibility like e-judicial governance.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.