Judicial Nightmare

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(L-R) Supreme Court. photo (black & white): Prashant Panjiar
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The Chief Justice of India has once again highlighted the paucity of judges and the delay in filling the vacancies as over 22 lakh cases pile up taking years to be heard

By Ramesh Menon

Justice delayed is justice denied is an axiom that all of us in India understand as we see thousands of cases hanging on without justice for decades. Every day, the number of pending cases in courts increases. There are presently over 2.18 crore cases pending which, observers say, will take over 300 years if the present rate of disposal carries on. Out of these, more than 22.5 lakh cases are over 10 years old. It is a long time before justice is delivered. The irony is striking when in many cases, the judgment arrives after the petitioner has died.

Photo: Anil Shakya
Photo: Anil Shakya

Over the last four months, the 43rd Chief Justice of India, Tirath Singh Thakur, has raised the question of pending appointment of judges as many times. Clearly, it is something that has troubled him more than anything else. On April 25, he raised it at Vigyan Bhavan in the capital during a meeting of chief justices and chief ministers in the presence of Prime Minister Narendra Modi urging him to move on the pending appointments. A Lok Sabha discussion in March indicated that appointments were pending of 44 percent judges in high courts, 25 percent in subordinate courts and 19 percent in the Supreme Court.

Chief Justice Thakur did not mince words when he said that it was easy to criticize the judiciary but what was required was to lessen the load of judges by filling up vacancies as it was stuck up at the government level. Modi promised to look into the matter. But as nothing moved, the chief of the apex court again raised it when he was hearing the case of a PIL filed by Lt Col Anil Kabotra that the long delay in disposal of cases was violating the fundamental rights of litigants to speedy justice.

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Chief Justice Thakur said that the logjam in appointment of judges to HCs was unacceptable and the judiciary could not be brought to a grinding halt. “People have started feeling the pinch because of delay in dispensation of justice. The government must tell us what the problem is,” he said. Again, when Modi did not refer to the increasing pendency which was denying justice to millions in his Independence Day speech, the Chief Justice said that he was disappointed. “You may make roads, schools, hospitals, but please also say something about people waiting for justice,” he said. Political circles sat up as it is rare for any chief justice to be so outspoken when he is in office. “Now, I speak bluntly both inside and outside the court as I know I have reached the peak of my career. From here I have nowhere else to go. So, I have no hesitation in saying anything,” he said.

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The fact that two-thirds of the prisoners languishing in Indian jails are undertrials awaiting a hearing is telling. Many of them have been waiting for years. By the time their case comes up for a final hearing, they have already completed what could have been their sentence if convicted. And if they were found innocent, how can the state compensate them for travesty of justice? Disturbing questions. Equally disturbing answers.

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The Allahabad High Court has 88 vacancies, the Madras High Court has 40 and the Punjab and Haryana High Court has 37.  Obviously, there is pressure that could have been eased with appointments being made on time. Eighty percent of the backlog is in nine mainline states with larger populations. Mukul Mudgal, former chief justice of the Punjab and Haryana High Court, told India Legal: “Most of the tribunals must be abolished as it only adds to the litigation burden. It is only a sinecure for retired bureaucrats creating additional costs. Judgments pronounced by one judge should be enforced by that judge within 30 days. Independent experts who advise the government should not unnecessarily ask the government to litigate. The government is the biggest litigant and most of its cases are routinely dismissed. Those who deliberately delay cases must be penalized and those filing false affidavits should be severely prosecuted. Lastly, the Plea Bargaining Act must be revisited and a more practical one must be framed.”

graph-1Shockingly, judges spend an average of about 2.5 minutes to hear a case. In another five minutes they decide on it. That is the kind of pressure they face to dispose of what seems an endless mountain of cases. A survey by research agency Daksh found that in the Patna High Court, a judge got just two minutes to hear a case. No wonder Justice Thakur has described the number of judicial vacancies as a national challenge. He said efforts were being made to persuade the government to expedite it.

While speed in the dispensation of cases is paramount to ensure full access to justice, it must be ensured in a manner that does not compromise on the quality and the fairness with which disputes are resolved.

The Law Commission of India has been underlining the need to address this paucity of judges for almost 30 years now, but it has fallen on deaf ears. Former Union law minister Ram Jethmalani told India Legal that while India was blessed to have the kind of judiciary it does, the government is not investing in improving the infrastructure and appointing the requisite number of judges. Chief Justice Thakur obliquely indicated through his utterances in court that he knows what to do and will go ahead and do it if he is forced to do so.

According to the National Judicial Data Grid, there are more than 2.19 crore cases pending. Out of these, 22.3 lakh cases have been pending for more than 10 years, 37 lakh cases for 5 to 10 years and 64.3 lakh cases for 2 to 5 years. It is an issue that should cause alarm for any government. Both the Prime Minister and the Law Minister, Ravi Shankar Prasad, have said that they are working on it.

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There are less than 15 judges per million in India. Twenty-nine years ago, the Law Commission had recommended that the strength of the judiciary should be increased as soon as possible to ensure that there were at least 50 judges per million. That has not happened.

A robustly functioning judicial system bestows faith among citizens that their democracy is alive and there is a rule of law. This is the big crisis that the judiciary has to face today. Maybe, that is also what is exercising the chief justice who feels that pendency is now affecting the common man’s search for justice. After all, a well-oiled judicial system that delivers speedy justice is the hallmark of a good democracy that ensures that rights of its citizens are ensured and protected. Delayed justice also affects the social, economic and political fabric of the country. As India is at the crossroads of change that is sweeping the world, it can ill-afford a weakened judiciary.

There has been a palpable wave of tension that is simmering between the government and the judiciary ever since the apex court rejected the NJAC Act and restored the collegium system to appoint judges. It is a stroke that political entities are not likely to forget soon. Clearly, the government wanted to exercise its powers in getting a hand in the appointments.

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A comparative analysis of the pendency of cases in India shows Uttar Pradesh leading with 51.3 lakh cases. It is followed by Maharashtra with over 30 lakhs, Gujarat with over 22.4 lakhs, Bihar with over 14 lakhs and Rajasthan with over 13 lakhs.

At the end of 2015, there were 426 vacancies in the high courts in India where the total sanctioned strength is 1,029. The total sanctioned strength of the subordinate courts is 20,358. However, only around 15,360 of these posts were occupied. Just filling up the vacancies would not solve the problem. There are only 16,513 courtrooms in India at the moment and in case these vacancies are filled, 3,989 courtrooms would be needed. 

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Daksh conducted an empirical study called “The Access to Justice Survey” by interviewing litigants in several district courts over the period of November 2015 to February 2016. The surveyors physically visited 305 locations in 170 districts of 24 states in India. The reasons that litigants stated for delays in their cases ranged from the judges not passing orders quickly to other parties not appearing in courts.

As many as 49.3 percent respondents felt that there were not enough judges for civil cases, while 50.4 percent respondents felt that there were not enough judges for criminal cases. Over 63 percent felt that there were too many cases in the court. 3.8 percent were waiting for more than 10 years to see that their cases are disposed of.

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Daksh also focused on the economic impact of undue delays in court cases. It evaluated the economic burden that is felt by the litigating parties as well as the national economy on the whole. The survey states that the loss of productivity due to attending repetitive court hearings because of wages and business lost comes to 0.48 percent of the Indian GDP. Civil litigants were found to spend Rs 497 per day on average for court hearings. They incur a loss of Rs 844 per day due to loss of pay. Criminal litigants spend Rs 542 per day for court hearings on average and incurred a cost of Rs 902 per day due to loss of pay. The average cost incurred by the litigants per day per case came to about Rs 1,039. This indicates that only those who can afford such a high cost of litigation can afford resolution of their legal disputes. This goes against the constitutional provision that guarantees equal protection of the law to every citizen.

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The 245th Report of the Law Commission of India on Arrears and Backlog said that one of the problems was that India does not have general statutory time limits for cases as the US does through its Speedy Trial Act. While the Civil Procedure Code, and the Criminal Procedure Code, has time frames for completing certain stages of the case, these statutes generally do not prescribe time limits within which the overall case should be completed, or each step in the trial should be concluded. On the judicial side, setting of mandatory time limits was attempted by the Supreme Court in a series of cases. However, in 2002 a seven-judge bench of the Court in P Ramchandra Rao vs State of Karnataka held that mandatory time limits could not be prescribed by the court.

The Malimath Committee, in 2013, recommended the use of a two-year time frame as the norm by which delay and arrears in the system should be measured. Additionally, the Law Commission report mentions that the Supreme Court has also recently advocated the use of case-specific time tables for the timely disposal of cases, in the case of Ramrameshwari Devi vs Nirmala Devi which makes it possible for the courts to remain flexible with the time limits they impose on cases depending on the type of case it is.

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However, the 245th Report did not recommend mandatory time frames for the disposal of cases as it feared it would affect the quality of judgments. Instead, the Commission recommended using the Rate of Disposal Method to determine how many additional judges should be appointed to clear backlog for an interim period until when the judiciary’s human and physical infrastructure can be increased.

Pendency of cases is a complex issue that has no easy answers. But some plausible solutions can be put into place:

  • Court infrastructure has to be improved to meet the increasing pressure.
  • Technology that can cut red tape and delays should be exploited.
  • All the vacancies should be filled as soon as possible.
  • Court administration should be tightened.
  • There must be a system to deal with or change cumbersome procedural laws that result in delaying the administration of justice.

 

As cases pile up every day, the problem becomes larger. This issue demands immediate attention from the government if faith in India’s judicial system has to be kept alive.

—With inputs from Punkhuri Chawla

Lead photo (black & white): Prashant Panjiar

All infographics: courtesy Daksh

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