In
our country, the vexatious legal system tends to erode the common man's faith
in the judiciary. There is no guarantee that a case would be decided even if
given a time-period of a decade.[2] Those
seeking justice have to go through extreme hardships. Long ago in the year
1999, Justice A.S. Anand (the then CJI) narrated in the courtroom the poignant
story of one Mr. Ajay Kumar Ghosh, (a resident of Kolkatta) who had been picked
up by the West Bengal Police a few months before the 1962 Indo-China war and
had spent the rest of his life in prison and subsequently in a hospital ward
without even a trial. Percentage of under-trials in India is 73% of our total
jail population according to a Parliamentary Report of 2002.[3]
The Report also accounted over 5 lakh cases in mostly all high courts as being
over 10 years old. Also, it was cited in the report that there were cases
pending since Independence - 1950 case in Madhya Pradesh High Court, 1951 case in
Patna High Court, 1955 case in Kolkata High Court and 1956 case in Rajasthan
High Court. This is a matter of serious concern as it is not only traumatic but
also tends to alienate the parties from the judicial system. This view has been
endorsed by many in the judicial system themselves. Well known lawyer Prashant
Bushan had gone on record to say - “It’s
a completely collapsed system. This country only lives under the illusion that
there is a judicial system.”[4]
Retd. Chief Justice of Delhi High Court A.P. Shah said in a report that it
would take the court approximately 466 years to clear the pending 2,300
criminal appeals cases alone. A similar view was held by Andhra Pradesh High
Court judge Justice V.V. Rao. He opined that our judiciary may take around 320
years to clear the arrears which had piled up to 31.28 million cases throughout
the country.[5]
However, it is my submission that we don’t have to wait for centuries to have
this backlog cleared. Serious commitment coupled with a proper work culture and
honesty can solve the degree of delays which is promoting cynicism about the
judicial system.
PRESENT SCENARIO OF BACKLOG IN INDIA:
Going
by the statement of the former Union Law Minister Mr. Ashwani Kumar on March 7,
2013 in Lok Sabha during the Question Hour, there are over 3 crore cases
pending in various courts all across the country and over 66,000 cases pending
in the Supreme Court itself. [6] As
on 1st March 2013, exactly 66,809 cases are pending in the Hon’ble
Supreme Court. [7]
The High Courts are doing no better with over 43 lakh cases pending as on December,
2011.[8]
The right to live with dignity is guaranteed by Article 21[9] of
the Constitution of India which includes the right to a speedy trial. Though
the constitutional philosophy of right to a speedy trial was propounded almost
four decades ago, the goal sought to be achieved is still a distant dream.[10]
In Central Coal Fields Ltd. And Anr. vs Jaiswal Coal Co., [11]
the Supreme Court observed - "Effective access to justice can thus
be seen as the most basic requirement-the most basic 'human right'-of a system
which purports to guarantee legal rights."[12]
PRESENT STRENGTH OF JUDGES IN INDIA:
One
prime reason for the delay in clearance of backlog is the acute shortage of
judges. Since the colonial period the judiciary has been under-staffed. This
scenario has continued even after Independence with the result that a nation of
over 1.2 billion people has a current judges per million population ratio
approximately around 15.5 (i.e. 15 judges for every million people of India). Moreover,
at any given point of time, around 25-30 per cent of these posts lie vacant.
Let us for a moment compare this position with a few other countries. When
India in the year 1981 had a strength of 10.5 judges per million population,
the other countries had a much higher ratio – Australia with 41.6 judges per
million population; Canada had the rate of 75.2 judges per million population;
U.K had a ratio of 50.9 judges per million population and U.S.A. had an
overwhelming ratio of 107 judges per million population. The Law Commission therefore in its 120th
Report[13]
recommended that the strength of judges per million population be increased
from 10.5 to 50 per ten lakh population. Similar suggestion was given by the
Parliamentary Standing Committee headed by Shri Pranab Mukherjee (the present
President of India) in its 85th report which was submitted to the Parliament in
February, 2002. The Hon’ble Supreme Court in its judgment All India Judges’
Association & Ors Vs. Union of India & Ors[14]
had directed the Central and State Governments[15] that
an increase in the subordinate judiciary from the existing 10.5 per 10 lakh
people to 50 judges per 10 lakh people should be reached within a span of five
years. But sadly our progress has not been good. From 10.5, we have only
reached the ratio of 15.47 per million judges per million population as of now.[16]
BLAMEGAME BY JUDICIARY AND EXECUTIVE FOR DELAY IN
CLEARING BACKLOG:
The former Union Law Minister
Ashwani Kumar on 7th March 2013 on the floor of Lok Sabha had cited
the low strength of the judges as the prime reason for the delay. He also
blamed the judiciary for the delay in appointment of judges because as per the
current method of appointment of judges, which has been in place since the 2nd
Judges’ Case (Supreme Court Advocates-on-Record Association v. Union of India)[17]
and Opinion of the Supreme Court in the Presidential Reference (Special
Reference No.1 of 1998)[18], it
is the judges themselves who decide as to who will adorn the benches.[19]
According to him, there is often a delay by the judiciary (both in the Supreme
Court and the High Courts) in giving recommendations of names for appointment.
He also pointed out that they are unable to get good talent from the Bar as a
lot of senior lawyers are unwilling to become judges. The reason being often a
junior lawyer practicing in the court is elevated to the position of a judge
while a senior lawyer is not even considered. There is too much secrecy in the
collegium system. This is true to some extent. Our Constitution has adopted a
system of checks and balances under articles 124(2) and 217(1) for appointment
of Judges of the higher judiciary where both the executive and the judiciary
have been given a balanced role.[20] The
present method of selection of members of the higher judiciary is flawed and seems
to have outlived its utility. The Law Commission in its 214th Report[21]
in 2008 had recommended that some kind of a re-think is required regarding the
present system of appointment of judges to the High Court and the Supreme
Court. We finally have a new system in place but it is yet to be seen whether
pendency will be brought down if the appointment mechanism is completely
revamped.
An attack on the Executive for the delay in adjudication of cases
has been made by Justice Sudhir Agarwal of the Allahabad High Court in one of
his articles.[22] According to him, those who believe that
piling of cases results because of judges not working, judges not sitting in
time in the court, judges rising early or deciding to avoid contentious
matters, long holidays, etc. are nothing but thoughts of uninformed persons and
these thoughts are given air by the political persons as well as the Executive
to undermine the judiciary. He presented an illustration to prove his point –
About two lakh cases were filed annually in the Allahabad High Court in the
last 2-3 years. The judges have exactly 210 working days in a year. Therefore,
on an average less than a thousand cases are filed per day. It is believed that
judges decide cases according to their capacity and also a lot depends on the
facts of any particular case. Some judges may decide 40-50 cases per day
whereas some may decide only 5-10 cases per day (though only 1 or 2 criminal
appeals can be decided in a day). So, if only 60 judges[23]
of Allahabad High Court working every day decide 20 cases per day, it would
bring the total number of decided cases to 1200. Therefore, going by this rate,
the judges at Allahabad High Court can decide more cases than are filed. Thus
there should be no problem of delay in deciding cases. This view is supported
by the fact that the Supreme Court disposed of 79,500 cases in the year 2010
whereas the total no. of cases that were filed in that year was 78,280.[24]
But as on 31st March 2009, a total of 9,35,425 cases were pending in
the Allahabad High Court. [25]
So where does the problem lie?
In his view, the problem lies with the Executive, i.e. the State,
the main litigant as it fails to cooperate with the judges. Cases get adjourned
on whims and fancies of government advocates as most of the times counsels
plead non-preparation as an excuse. Affidavits are not properly filed by them
which often results in wastage of precious time of the court. Small matters
which may be decided then and there get delayed as the stand of the government
is not informed to the court. And when some courts after waiting for a
reasonable period of time decide the matters ex-parte, the government and its
authorities raise a hue and cry for not being given an opportunity of being
heard. He also blamed the State for taking extraordinary time in providing
funds for betterment of infrastructure. It is to be submitted here that inhuman
conditions of working seriously hamper the functioning of judicial officers.
WHAT CAUSES THE BACKLOG?
This
essay proceeds from the standpoint that the problem of backlog of cases is not
just the failure of any one particular body. There are many reasons responsible
for the pendency of cases. Firstly, a recent study has indicated that the
number of new cases has a direct relationship with the increasing literacy rate
and awareness among the people regarding their rights. This view finds support
by the fact that Kerela which has a high literacy rate of 93.91 percent[26]
adds 28 new cases per 1000 population per year whereas Bihar with a literacy
rate of just 63.82 percent[27]
adds just 3 new cases per 1000 population.
Secondly, there are 895 sanctioned
positions of the High Court Judges and 617 Judges are in place, leaving a
vacancy of 278(around 31 percent).[28] The
Supreme Court also often fails to work with its full strength. The sanctioned
strength of the subordinate judiciary is 17,800 judges; though at present the
vacancies amounts to 30% of the total sanctioned strength.[29]
This is a highly deplorable and unacceptable position. For this both the
judiciary and the executive are to be blamed. The judiciary is to be blamed for
not recommending good names to the Executive. This has serious repercussions as
it causes a lot of bad blood among senior lawyers therefore forcing them not to
come forward to become judges. Thus, talent gets compromised. The Government,
too, does not lag behind. Lack of proper infrastructure, funds, libraries,
typists etc. adds on to the problem.
Thirdly, the attitude of lawyers in
taking frequent adjournments is highly condemnable. Lawyers must realize that
such adjournments, even if they are in favour of their clients, are not in
favour of the justice system.[30]
Fourthly, a widespread increase in the number of Central and State legislations
is also adding on to the pendency. Another major factor contributing to this
delay is the indiscriminate and unsystematic use of writ jurisdictions of High
Courts all across the country.
WHERE DOES THE SOLUTION LIE?
The
problem that our judicial system today faces provides a tremendous challenge to
us. These problems are in no way transient or simple. Therefore, we need a
holistic and pragmatic approach towards clearing the backlog. An effective
mechanism followed persistently for three to four years will to a great extent
cut down the arrears. The question that is pertinent here is – Do we have the
determination?
Firstly, we definitely need a new system of appointment of judges.
What happens in the collegium meetings is never known. The five senior most
judges can’t be given a role which they were never assigned in the first place
by the Constitution. Experience has shown that the collegium system has led to Bhai Bhatijawad or more properly called Uncle Judge Syndrome. Often there is
nepotism and favouritism shown in appointments. This is not only bad for our
justice system as efficiency and meritocracy gets compromised but this also
makes our judiciary look politicized. Justice Bhagwati had gone on to record
say ‘I know what happens in the committee
of five. I don’t want to disclose that but we have seen the kind of
appointments that have been made.’[31] A
similar opinion was held by Justice V.R. Krishna Iyer – ‘Today, the collegium on its own makes the selection. There is no
structure to hear the public in the process of selection. No principle is laid
down, no investigation is made, and a sort of anarchy prevails.’ [32]
It is therefore hoped that the Hon’ble Supreme Court exercising its writ
jurisdiction does not hold the National Judicial Appointments Commission as
unconstitutional.
Many a times the lack of proper infrastructure adds on to the delay.
Judges who sit on such high pedestal need proper facilities for working.
Mostly, all the courts in our country have infrastructure which are not up to
the mark by any standards. An immediate solution could be using unutilized
government buildings. Thirdly, the rising population and enhanced commercial
activity is resulting in an increase in the number of cases. The ratio of judge
per million population cannot remain static at this stage. For this purpose,
the Judges of the Supreme Court, High Court and the District Courts who have
already served and retired could be appointed as adhoc judges to dispose
pending cases expeditiously. [33]
Fourthly, it is important to mention here the provision as laid down in Article
130[34]
of the Constitution. Article 130, which is an enabling provision, empowers the
Chief Justice of India to appoint place or places other than Delhi as the seat
of the Supreme Court provided the approval of the President is given. This
provision has never been used by any Chief Justice of India, The 229th
Law Commission Report in August 2009 had recommended setting up of a division
of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches
in four regions at Mumbai, Kolkata, Chennai/Hyderabad and Delhi.[35]
Almost a similar suggestion had been earlier given by the 95th Law Commission
Report[36] and
also by the 125th Report[37] in
the year 1984 and 1988 respectively. Also another reason for creating more
benches of the Supreme Court is endorsed by the empirical data which suggests
that appeals to the Supreme Court coming from various high courts do not come
to it evenly. It has been seen that those high courts which are situated in
areas that are in the vicinity of Delhi or that are wealthier are likely to
generate more appeals to the Supreme Court. Going by the reports of 2011, 18.6
percent of the Supreme Court’s admission docket was appealed to it from Punjab
and Haryana while an alarming 10.6 percent was appealed from Delhi.[38]
This percentage is higher than the appeals which came from U.P., Maharashtra
and few other heavily populated states. The time is therefore ripe for such
recommendations to be taken seriously. Fifthly, the Malimath Committee Report
of 2003 on Reforms of Criminal Justice System suggested that: (i) The working
days of the Supreme Court be raised to 206 days. (ii) The working days of the
High Courts be raised to 231 days.[39]
This suggestion hasn’t been followed by any court. The Supreme Court in the
year 2007 went in reverse gear with only 176 working days and the remaining 189
days were holidays.[40]
The number of working days of the courts in our country is hopelessly low in
comparison with many other countries. Therefore, in the larger interest of the
public and also in the interest of justice, the holidays of the Supreme Court
and the High Courts should be cut short. (Emphasis added) Holiday Courts in
every state seem to be the need of the hour.
Sixthly,
adjournments undoubtedly contribute to delays in the disposal of cases which is
not in the interest of justice. In most of the cases, adjournments are taken on
false pretexts, and the system does not have any appropriate mechanism to
tackle them. Therefore the menace of adjournments has to be tackled effectively
as it seriously erodes the faith of the common man in the judicial system. The
bad practice of adjournments cannot be allowed to continue indefinitely. To
combat such adjournments, one effective method could be imposing costs on those
seeking frivolous adjournments. It is hereby recommended that grant of such adjournments
must be guided strictly according to the provisions of of the Civil Procedure
Code and the Criminal Procedure Code. Lawyers need to pay heed to these
provisions and the judges need to enforce it effectively or else the clearing
of backlog will only be a far-fetched dream. Seventhly, it is often said that
lawyers are ‘priests in the temple.’ So they need to have a special interest in
preserving the integrity of the judicial system. In K. John Koshy & Ors.
vs. Dr. Tarakeshwar Prasad Shaw[41], while
deciding whether the Court should refuse to hear a matter and pass an order subsequently
in a situation when counsel for both the parties were absent because of a
strike called by the Bar Association, the Supreme Court held that the Court
could not refuse to hear the matter as it would tantamount to Court becoming a
privy to the strike. For this reason the lawyers must never resort to strikes
which we often see and must follow with all sincerity the decision of the
Constitution Bench of the Supreme Court in 2003 in the case of Harish Uppal
(Ex-Capt.) v.Union of India. [42]
Eighthly, the excessive delay caused by the judges in delivering judgments is lamentable
and unacceptable. The Apex Court in RC Sharma vs. UOI[43] observed
- "An unreasonable delay between
hearing of arguments and delivery of judgment, unless explained by exceptional
or extraordinary circumstances, is highly undesirable.” In this regard, the
guidelines given by the Supreme Court in the case of Anil Rai v. State of Bihar[44]
must be thoroughly observed. Ninthly, those cases which are filed on similar
issues could be clubbed with the use of technology and one judgment could
decide the large number of cases filed on similar grounds. This is gradually
being done but can happen even more effectively. This will help in
substantially reducing the arrears within a reasonable amount of time. Also,
second appeals and revisions should be eliminated as the right to appeal to the
Supreme Court through Special Leave Petitions (SLP’s) under Article 136[45]
of the Constitution is available to everyone. This jurisdiction of the Supreme
Court cannot be curtailed as it has been held to be a part of the basic
structure of the Constitution in Delhi Judicial Service Association vs State Of
Gujarat And Ors.[46]
Tenthly, and most importantly, methods other than traditional and vexatious
litigations must be adopted. Alternate Dispute Resolution mechanism is the
answer to reduce the burden on judiciary of pending cases. Lok Adalats, Nyaya
Panchayats[47],
Mediation, Arbitration and Conciliation centers are already showing good
results coupled with the fact that they provide inexpensive justice.
CONCLUSION:
The great Russian poet Yevgeny Aleksandrovich Yevtushenko once said
– ‘Justice is like a train that is nearly
always late.’ So true are his words in the Indian context. Speedy justice as
enumerated under Article 21 is not merely an aspect of the right to life with
dignity, but is also essential for upholding the efficacy of the rule of law.[48]
We have completed 65 years of independence. Freedom was not got easily. The
struggle brought the world's then mightiest empire to its knees. The struggle
saw the birth of a new nation, which committed itself to the rule of law.
Therefore, the preservation of the rule of law which is the bedrock of any democracy
should be our solemn goal. Daniel Webster’s golden words are of much relevance
here - Justice, sir, is the great
interest of man on earth. It is the ligament which holds civilized beings and
civilized nations together. Wherever her temple stands, and so long as it is
duly honored, there is a foundation for general security, general happiness,
and the improvement and progress of our race.[49]
I believe the time has come for every court in this country to be a
fast track court as a prolonged delay brings about a sense of injustice which
in turn invites anarchy. (Emphasis added) No more should people wait at the
doorsteps of courts for decades to get speedy justice. Delayed decisions and
mounting arrears are nothing short of violation of our fundamental rights and
have the effect of shaking the very foundation of independent judiciary. Thus,
it is imperative for all the consumers of justice as well as for the justice
delivery system that the crisis of backlog of cases be addressed solemnly.
[1] Merchant of Venice, Act 4, Scene 1 Line 223 – A plea by Shylock to
Daniel to come and give a wise judgment.
[2] This has been brought out in the film ‘Lage Raho Munna Bhai’ by
Rajkumar Hirani where the lawyer when confronted by the protagonist to give an
assurance that his case would be decided atleast within 15 years failed to give
such an assurance.
[3] Standing Committee 85th Report on Law Delays: Arrears in
Courts 2002
[4] http://www.nbcnews.com/id/29164027/ns/world_news-south_and_central_asia/t/report-india-court-years-behind-schedule/#.UNgGvm-eFVI
[5] Courts will take 320 years to clear backlog cases: Justice Rao,
Times of India, March 6th 2010.
[6]On the Floor of Lok Sabha, on March 7, 2013. at http://164.100.47.132/newdebate/15/13/07032013/Fullday.pdf
[7] http://supremecourtofindia.nic.in/p_stat/pm01032013.pdf
[8] Data given in response to an RTI application filed by Uttar Pradesh
resident Kush Kalra. Also see, ‘Over 43L cases pending before high courts’,
Times of India 5th October, 2012.
[9] Article 21. Protection of life and personal liberty- No person
shall be deprived of his life or personal liberty except according to procedure
established by law.
[10] See the opinion of R.C. Lahoti,
J. in P. Ramachandra Rao vs State Of Karnataka (2002) 4 SCC 578
[11] AIR 1980 SC 2125
[12] Ibid at para 2.
[13] On Manpower Planning in Judiciary : A Blue Print in 1987
[14] AIR 2002 SC 1752
[15] Under article 235 of the Constitution of India, the administrative
control over the members of subordinate judiciary in the States vests with the
concerned High Court and the State Government.
[16] See ‘Government for alternative system for appointment of judges’
in Indian Express of March 11th 2013.
[17] 1993 (4) SCC 441
[18] 1998 (7) SCC 739
[19] The initiation for appointment of judges to High Courts has to be
started by the Chief Justices of the respective Courts. It is ultimately the
collegium system of five senior-most judges of the Supreme Court which
recommends the names to the President for appointment.
[20] 230th Law Commission Report titled ‘Reforms in the
Judiciary – Some Suggestions’ at pg 32.
[21] Titled ‘Proposal for Reconsideration of Judges cases I, II and III’
[22] Emerging Challenges Before Indian Judiciary, published in Voice of
Law and Justice (July-August 2012, Issue 4)
[23] Though the present number of judges is 81 and the sanctioned
strength is 160. See, Indian Express of Apr 18 2012 'Allahabad HC gets 11 new
judges'.
[24]See Ashwani Kumar’s statement in Lok Sabha at http://164.100.47.132/newdebate/15/13/07032013/Fullday.pdf
on 7th March, 2013.
[25] Source: Supreme Court of India
[26] As per 2011 population census; Also see
http://www.kerala.gov.in/index.php?option=com_content&view=article&id=4007&Itemid=3187
[27] As per 2011 population census; Also see http://www.census2011.co.in/census/state/bihar.html
[28]See Ashwani Kumar’s statement in Lok Sabha at http://164.100.47.132/newdebate/15/13/07032013/Fullday.pdf
on 7th March, 2013.
[29] See ‘Government for alternative system for appointment of judges’
in Indian Express of March 11th 2013.
[30] Law commission 230th Report on 'Reforms in the Judiciary - Some
Suggestions' in August 2009 at pg.26
[31]See ‘Lords on Trial’ by Shafi Rahman in India Today September 7 2009
Issue.
[32] Judicial appointments & disappointments by V.R. Krishna Iyer in
The Hindu on August 18, 2012
[33] Article 127 of the the Constitution provides for the appointment of
adhoc judges to the Supreme Court. Similar provision is provided for the High
Courts under Articles 224 and 224-A of the Constitution.
[34] 130. Seat of Supreme Court.--The Supreme Court shall sit in Delhi
or in such other place or places, as the Chief Justice of India may, with the
approval of the President, from time to time, appoint.
[35] At pg. 7 of the report - We suo motu took up the subject for consideration
and have recommended that a Constitution Bench be set up at Delhi to deal with
constitutional and other allied issues and four Cassation Benches be set up in
the Northern region at Delhi, the Southern region at Chennai/Hyderabad, the
Eastern region at Kolkata and the Western region at Mumbai to deal with all
appellate work arising out of the orders/judgments of the High Courts of the
particular region.
[36] Titled "Constitutional Division within the Supreme Court – A
proposal for”
[37] Titled “The Supreme Court – A Fresh Look” wherein they reiterated
at pg.23 the need for more benches of the Supreme Court - “The Supreme Court
sits at Delhi alone. Government of India, on couple of occasions, sought the
opinion of the Supreme Court of India for setting up a Bench in the South. This
proposal did not find favour with the Supreme Court. The result is that those
coming from distant places like Tamil Nadu in the South, Gujarat in the West
and Assam and other States in the East have to spend huge amount on travel to
reach the Supreme Court. There is a practice of bringing one’s own lawyer who
has handled the matter in the High Court to the Supreme Court. That adds to the
cost. And an adjournment becomes prohibitive. Adjournment is a recurrent
phenomenon in the Court. Costs get multiplied. Now if the Supreme Court is
split into Constitutional Court and Court of Appeal or a Federal Court of
Appeal, no serious exception could be taken to the Federal Court of Appeal
sitting in Benches in
places North, South, East, West and
Central India. That would not only considerably reduce costs but also the
litigant will have the advantage of his case being argued by the same advocate
who has helped him in the High Court and who may not be required to travel to
long distances. Whenever questions of constitutionality occur, as pointed out
in the 1984 Report, the Supreme Court can sit en banc at Delhi and deal with
the same..”
[38] See ‘The Indian Supreme Court by the Numbers’ by Nick Robinson at
pg. 20 of the Report.
[39] at pg. 286
[40] See 'Supreme Court has more breaks than working days' at IndiaToday
on November 11, 2007. Also available online at
http://indiatoday.intoday.in/story/Supreme+Court+has+more+breaks+than+working+days/1/1863.html
[41] (1998) 8 SCC 624
[42] (2003) 2 SCC 45
[43] 1976(3) SCC 574
[44] (2001) 7 SCC 318
[45] 136. Special leave to appeal by the Supreme Court.-(1)
Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply
to any judgment, determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces
[46] 1991 AIR 2176
[47] The Law Commission of India in its 154th Report on CrPC had
recommended that States throughout the country should enact legislations on
Nyaya Panchayats to suit local needs and conditions.
[48] Justice Verma Committee Report 2013, at pg. 411.
