Aim:This article discusses the widely talked about problem of the Indian judiciary, that is the huge backlog of cases in courts. The statistics from reliable sources have been discussed and the variety of reasons for the logjam has been discussed. A comparative analysis with other countries has been provided, following which suggestions to tackle the problem have been suggested.
“They found themselves sitting on the bench outside the court every other day, ever since one of them had filed a case against the other. The blood enemies eventually became friends over the years but, their case file was still lurking around the hallways of the court.”
The above lines accurately describe how pendency of cases plague the Indian Judicial System. One would believe that such a problem exists only in the lower rungs of the judiciary. After all, the Supreme Court of India is an institution which the citizens look up to with great respect and regard. But, the facts state otherwise. Even the Supreme Court of India has been suffering with the problem of pendency of high number of cases, despite it being the court of the most eminent judges of the country.
This article would be looking into the problem of the huge backlog of cases in the Indian Courts. Firstly, thestatistics and the numbers of the problem will be brought to light, followed by the explanation of those numbers and the related indication. This would enable us to realise the gravity of the situation and the need for urgent consideration. Further, the reasons behind such issues shall be explored. A comparative study with the judicial systems of the other country would come next, which would include both, the countries which have or had faced similar issues and also the ones which have never faced the issue of backlog of cases in the courts. Solutions to combat the deplorable situation, effectively and efficiently, would follow, along with suggestions for proper implementation of those solutions.
Introduction & Statistics
A population of 1.35 billion and pendency of about 27 million cases in the Indian Courts. The numbers are quite staggering and worrisome. But, what is even more worrisome is the multifaceted effect that these numbers have and indicate about the plights of the people of the largest democracy of the world. The country suffers a scourge of the world’s largest backlog of cases. Even though the courts dispose a really large number of cases every year, the number of cases filed are even more. The number of judges has increased six-fold in last three decades but, the number of the cases has shot up to be twelve-fold in the same time.
Delhi High Court had granted divorce to an 85-year-old man, in the year 2014. The man had been fighting a legal battle for more than 32 years and when he finally received a decree in his favour, all hopes and chances of resuming a married life were ruined. It was indeed a pity that the couple had spent a large part of their married life within the alleys of the court, fighting a case against each other and one can only try estimating the emotional distress caused to the parties fighting the cases. Now, this is not something which happens to be an exceptional case, rather, it points to a far greater problem plaguing the Indian Judicial System.
Delay in justice delivery can have very serious consequences at times, as in the case of a minor rape victim who gave birth to an unwanted child after being denied permission to abort her foetus.
In cases of false imprisonment, an innocent person suffers for no fault of her own and the delay in justice delivery mechanism adds further to the woes. The over crowding of the prisons is yet another problem, violating the rights of the prisoners. Many under-trial prisoners end up doing their entire sentence without getting a full trial.
A former Supreme Court judge, Justice B.N. Agrawal had said, “Delay in disposal of cases, not only creates disillusionment amongst the litigants, but also undermines the capability of the system to impart justice in an efficient and effective manner.”
This problem of pendency of cases also affects the economy of the country. The Economic Survey 2017-18, tabled recently in the Parliament said that there is a need to address the issues of pendency, delays and backlogs of cases in the judicial arena, in order to foster the ease of doing business. It also stated that the issues hamper dispute resolution, contract enforcement, discourage investments, stall projects, hamper tax collection, stress tax payers and escalatelegal costs. This particular issue amounts to a loss of billions of rupees to the country every year.
The 120th Law Commission report stated that India should have 50 judges for per million people. Despite this, the number of judges remain an abysmally low of 17.86 per million, as per the data of the Law Ministry. This is in direct contrast with the judge-population ratio of USA, UK & Australia, where the number of judges for per million population is 107, 51 and 41 respectively.
Supreme Court Statistics:
The sanctioned strength of the Supreme Court of India is 31 judges. Currently, there are 25 judges in the Supreme Court, with Justice Dipak Misra being the Chief Justice of India. This amounts to the percentage of vacancies being around twenty percent. The scourge of backlog of cases has plagued the apex court as well despite, the judges realising the gravity of the situation and trying to resolve it.
As of November 1, 2017, there are 55,259 pending cases in the apex court and about one-third of the cases are the ones which have been continuing for more than five years. A data released by the Supreme Court in the ‘Indian Judiciary Annual Report 2015-16’ showed the grim picture of the “mounting arrears”. According to the data, out of the total of 1215 cases filed before the court in the year of its inception in 1950, 525 matters were disposed, leaving 690 cases pending after the first year. The sanctioned strength of the judges in 1950 was 8. The pendency of the cases has been on a rise ever since. The rise in the pending cases in the apex court since its inception in 1950 is over 80%.
Not all seems grim and a lost cause. Recent trends of the pending cases provide a sign of relief as there has been a consistent fall in their numbers over the past few years. The number of pending cases at the end of 2013 was 66603, at the end of 2014 was 65970, at the end of 2015 was 62281 and at the end of 2016 was 59468.
High Courts, Subordinate Courts& Tribunals Statistics:
According to the data available on the National Judicial Data Grid, around 42.2 lakh cases are pending in the 24 High Courts of India and that amounts to an average of 1.76 lakhs each court. Out of these huge number of pending cases, almost 50% of the cases have been in the court for more than 5 years. The approved strength of judges in the 24 High Courts is 1079 judges but, it has been functioning with 621 judges, which amounts to a shortage of 458 judges, as per the data available on June 3, 2016.
The subordinate courts have a pendency of 26.5 million cases, with almost 45% of the cases being more than five-year-old. Uttar Pradesh has topped the list around 61.5 lakhs pending cases, almost one-fourth of the total number. It is followed by Maharashtra, West Bengal, Bihar and Gujarat. This trend has been consistent for last three years. The subordinate judiciary also faces the acute shortage of judicial officers. According to information made available by the high courts and the various State Governments, as on November 30, 2017, the sanctioned strength of Judicial Officers of District and Subordinate Courts was 22,677 and the vacant post was 5984, which amounts to nearly 26%.
Tribunals are quasi-judicial institutions set up to address the delays in disposal of cases in courts.The 272nd Law Commission of India Report brought to light the high pendency of cases in some tribunals thereby, showing that the very purpose of setting them up has not been achieved. The ones with the highest number of pending cases were Central Administrative Tribunal, Railways Claims Tribunal, Debt Recovery Tribunal, Custom, Excise & Service Tax Appeal Tribunal and Income Tax Tribunal.
Reasons for the Legal Logjam
The reasons for such a crisis plaguing the entire Judiciary cannot be a simple and unidimensional one. They are bound to be multi-faceted, wherein, no single actor can be held completely accountable for the problems faced. The Law Ministry had stated that shortage of judges is not the only reason for the piling up of cases. The Ministry had issued a statement wherein, it mentioned that there are a variety of factors which contribute to the delay which include, lack of court management systems, frequent adjournments, strikes by lawyers, accumulation of first appeals, indiscriminate use of writ jurisdiction and lack of adequate arrangement to monitor, track and bunch cases for hearing.
The significant reasons for the delay in justice disposal are discussed below.
Vacancy in Judicial Positions
The statistical data of the vacancies of judges has already been provided. Needless to say, the acute shortage of judges greatly affects the effective and efficient functioning of the judiciary.
The ex CJI TS Thakur had addressed the country stating that the country needed more than 70000 judges to clear the arrears. He had also stated that it was not right to shift the entire blame of the backlog of cases onto the judges. The Indian judges have been performing far better than their counterparts in the other countries, in terms of the rate of disposal of cases was concerned.
Power Tussle between the Legislature, Executive & Judiciary
The independence of judiciary has been constantly under challenge due to the political interventions by the legislature. In the S.P. Gupta case or the ‘First Judges Case’, 1981, it was that the “primacy” of the CJI’s recommendation on judicial appointments and transfers could be refused for “cogent reasons”, which gave significant power to the executive over the judiciary. It was eventually reversed in the subsequent cases in 1993 and in 1998. In those cases, the collegium principle was upheld, laying down that the CJIs should consult with the four senior-most Supreme Court judges to form her opinion on judicial appointments and transfers.
This principle was recently sought to be annulled by the National Judicial Appointments Commission (NJAC) Act, 2015 & the 99th Constitutional Amendment, which gave the executive and legislature a control over the judicial appointments and transfers. It was declared unconstitutional in the very same year by the Supreme Court. Though the collegium system revived, the judicial independence is still at a threatened position due to consistent presence of executive in judicial appointments and transfers, and the burden of vacancies keep piling up. The proposed Memorandum of Procedure has also not been accepted by the judiciary and it remains a bone of contention between the judiciary and the executive.
Indian Government being the Largest Litigant
The Law Ministry has revealed through the statistics provided by the Legal Information Management and Briefing System (LIMBS) that the Centre and the States were responsible for over 46% of the pending cases in Indian courts. Of this, the Railway Ministry remains the biggest litigant amongst the government departments, being a party to over 66000 cases. It is interesting to note that the Railways Claims Tribunal also happened to be one of the tribunals with largest number of backlogs.
What is really deplorable is that many of these cases are the ones where one department of the government is suing the other department, leaving the decision-making to the courts.
Low Budgetary Allocation towards Judiciary
Fast Track Courts were started in the year 2005 and it played a very successful role in clearing out the logjam. These Courts have effectively disposed of over 80% of the cases that had been transferred to them. But, in 2011, the Centre cut off the funding to these courts and made it a responsibility of the States to fund these courts. Since then, 60% of these courts have shut down despite the fact that they do not require any major chunk of the budgetary allocation.
The monetary requirements of the judiciary are not adequately taken care of and hence, the deplorable state of the judicial infrastructure. As of 2016, India spent about 0.01% of its GDP on the judiciary, which is far from sufficient.
Problems in Lower Courts
As per the statistics already provided, there are about 26 million cases pending in the lower courts of the country. This has been unfortunately, ascribed to the rampant corruption and the postponing of dates. The lower courts of the country have failed to deliver quality judgements which, eventually, leads to the litigant further appealing the case in the higher courts, thereby, contributing to the burden of the entire judicial system. The problems of the lower courts have been scientifically approached and discussed in the 245th Law Commission Report, submitted in 2014.
The increasing literacy of the people, in ordinary sense would obviously be considered as a social progress. Ironically, what accompanies the increasing literacy adds to the woes of the courts. People have become and are continuously becoming more and more aware of their rights and the obligations of the society and the State towards them. Hence, this makes them approach the courts in case of any violation. While it obviously cannot be said that the people should not approach the court, the fact that it significantly contributes to the problem of backlog of cases can also not be ignored. Kerala gets 28 new cases per 1000 people, with it having a literacy rate of over 90% while Jharkhand, with a literacy rate of around 53%, gets four cases per 1000. Thus, the fact that literacy contributes to the rise in the number of cases is evident.
Comparative Study with Different Jurisdictions
Many countries around the world are taking up legal and judicial reforms as a part of their overall development programs. This has been because of the growing recognition of the fact that the economic and social progress are dependent on the respect for the Rule of Law, democratic consolidation and effective human rights protection, which require a well-functioning judiciary that can interpret and enforce the laws equitably and efficiently. Following is a description of the problems faced by few countries with proportionately huge backlog of cases in courts and the reformative measures that have been taken up in those countries.
Jamaica, a small island country in the Caribbean Sea, is one of those countries where pendency of the cases has plagued its judiciary for a long while now. The Director of Public Prosecutions, in a press statement last year, accounted for the poor infrastructure and the increasing crime rate as the source of the problem. As per her statement, the judiciary of the country has suffered a constant neglect by the successive administrations. Though the judiciary has been trying hard to dispose the cases in an effective manner, the number of cases being filed are still ballooning up. The number of criminal cases being filed have tripled yet, the number of courts remain the same. Thus, lack of infrastructure has been hurting its judiciary bad.
But all doesn’t seem to be a lost cause for Jamaica. The Ministry of Justice had come up with a plan, which is now under execution, to engage a statistician to collate the figures, which would give an accurate count of the number of documented criminal cases, which would help in enhancing the criminal justice system by automated scheduling and recording in the courts. Another innovative measure taken by the judiciary has been to encourage the use of a legal provision which provides an opportunity to the accused persons to enter a guilty plea and benefit from a maximum of up to 50% reduction in their sentence. A considerably large number of cases has been disposed using this method.
India’s South Asian neighbour, Bangladesh, has been plagued with a similar kind of huge backlog of cases in courts, the number of which have deteriorated over the past few years. On the face of it, the growing population is considered a reason for the problem, because it leads to a number of increase in cases being filed. The lax attitude of the judges in the lower courts has also been under constant criticism for it contributes greatly to the problem. The lawyers have been instrumental in furthering this problem by their indifference towards the problem and by not contributing in solving the issue.
Yet, there have been a lot many reformative measures been suggested and a few of them implemented as well. It has not really helped the cause much but, we could always explore the plausible solutions. The ex-Chief Justice, in 2012, had suggested that there should be a proper mechanism in place to monitor the working of the various subordinate courts. He suggested the possibility of amending the Criminal Procedure Code, to introduce ADRs in criminal cases, after ADR having been introduced in the civil cases. What he further suggested was that certain types of criminal proceedings rest on common points of law hence, they could be brought together and dealt with by analogous hearing and common judgement, so far as the issues involved in the individual cases are similar. Lok Adalat has also helped to some extent in clearing out the backlog of cases in Bangladesh.
The topic of significant judicial reforms would remain inadequately addressed if the case of Kenya was not talked about. Kenya happened to be one of the worst hit countries of the world, in terms of judicial inadequacy and failure. As per the statement of the Chief Justice of Kenya, in 2011, the judicial institution in Kenya had been founded on so frail structures, so thin in resources, so low on its confidence, so deficient in integrity, so weak in its public support that to have expected it to deliver justice was to be wildly optimistic.
After a series of political conflicts in the country in 2007, there was an independent commission founded to draft a new constitution for the country, which could address the problems of the judiciary. The 2010 Constitution helped in addressing the problems of the judiciary, including the one of massive backlog of cases by providing means of doubling the funding to the judiciary. It also included efficient administration of the courts and case management, automating of the courts, training of the judicial officers, improving the court infrastructure by constructing new courts and rehabilitating the existing ones.
There are other countries as well which have the similar problem of pendency of cases. They have been applying somewhat similar ways to handle the problem and get to a plausible solution. The implementation of these reformative measures remains a problem all throughout.
Solutions to the Issue & Implementational Methods
As we have seen in case of reasons of the problem of pendency of cases that it cannot be attributed to any single actor alone. Hence, the solutions require a holistic approach as well, where each actor of the State should fulfil their roles in individual capacity and also cooperatewith the other actors of State to ensure that the solutions to the problems could be resolved in an effective manner and at the earliest, for the larger benefit of the society and the country.
Addressing the Issue of Vacancies
The gigantic vacancies in the judicial offices, starting from the lowermost courts to the Supreme Court of India has been stressed upon throughout this article. The high courts have been functioning with only two-third of their sanctioned strength. Even the apex court has not been met with its full strength, in terms of appointment of judges. Thus, addressing the issue of vacancies should be the primary concern for both, the judiciary and the executive. They need to join hands and together come up with a plausible solution for the good of the entire population, which looks up to the judiciary for justice. The issue of judicial appointments and transfers needs to be amicably resolved at the earliest to ensure that the appointments of the judges could be done in an efficient way. There could be committee set up which could be comprised of members, who could address the concerns of both the parties, and come up with a memorandum, within a strict time frame, agreeable to all three pillars of the country, the legislature, the executive and the judiciary.
Another means of addressing the issue of vacancy could be to increase the age of retirement of the judges in the lower courts and the high courts. This could help the existing judges to clear the backlogs a little longer, in a grim scenario, where the appointment of judges to the courts seem to be in doldrums.
Ensuring Efficient Working of the Existing Judicial Structures
Before setting up any new appellate body to address the issue of backlogs, it is important to ensure that the existing structures work in their full capacity and in an efficient manner. It is for the policy makers to understand that when there is a lack of manpower within the existing judicial bodies, creation of new bodies would further increase this gap and might even worsen the situation, rather than addressing it. The judicial officers could be issued a strict code of conduct, violation of which could fasten some sort of liability upon them, to ensure that the duties are adequately performed by the officials. Rather than creating a separate body to hear the cases, there could be bodies created within the system, to ensure that the existing judicial structures perform their duties effectively and efficiently.
There are various bodies other than the courts, which significantly help in clearing out the backlog of cases in the courts. These include the tribunals, Lok Adalat, Fast Track Courts, etc. It is important that there exists a proper mechanism to monitor the working of these courts and take effective measures for their reform, if need arises. These mechanisms should be permanent in nature rather than being set up occasionally to address the situation in the times of crisis. This would result in efficient functioning of these mechanisms.
Better Court Management System & Reliable Data Collection Means
A press release from the Law Ministry, in 2016, mentions the lack of adequate arrangement to monitor, track and bunch cases for hearing as one of the reasons for the pendency of cases. There needs to be a reform made in the Court Management Systems, hence, in order to tackle these problems. There is no uniform way of recording the data for the various courts of the country. This results in a wide variance in the data available from the various courts which makes the analysis of the data difficult. Hence, the numbers and the analysis that are available currently, may not be reliable. A uniform means of data collection, as was done in Jamaica, might be helpful in getting a more accurate picture of the issue and would help in addressing the issue better.
Having a Definite Time Frame to Dispose the Cases
The absence of any specified time frame for the disposal of the cases adds to the woes of the courts. There could be a time frame set up within which the delayed cases should be disposed of, taking into consideration the capacity of the judges and the judicial systems to do so. Adjournments are granted far too easily and freely and this, in turn, leads to delay in disposal of the cases. The time frame needs to be strictly adhered to by, both, the lawyers and the judges.
Implementation of Strict Code of Regulations for the Lawyers
Frequent adjournments, witnesses not showing up, counsels requesting for next dates on account of sickness, are a few ways in which the lawyers hinder the process of delivery of justice. The strikes by the lawyers often lead to the breakdown of the justice dispensing mechanisms of the courts. Thus, it is of primary importance to regulate the conduct of the lawyers. There arises a responsibility on the lawyers to help the people in accessing justice but, the roles played by them currently, is quite contrary. The lawyers could be issued a code of regulations from their respective bar associations and the license granting authority, failure of compliance of which would lead to strict actions being taken against the lawyers.
Ensuring the Independence of the Judiciary
Independence of the Judiciary has to be maintained at all costs. The Constitution of India has it engrained within itself. Any practical deviation from this needs to be immediately and effectively responded to. There arises a moral and statutory obligation on the legislature and the executive to respect its independence. Besides, there also arises a duty upon the judiciary itself to not compromise with its independence and take strict action against any person whose actions lead to the compromise of its independence.
Increasing Budgetary Allocations
As already state in the paper, the lack of adequate infrastructure significantly adds to the woes of the courts in timely disposal of cases. The governments at the Centre and the States should take cognizance of this fact and allocate proper funding to the judicial systems. As we have seen in that case of Fast Track Courts, lack of funding lead to the failure of a method which was evidently proving to be effective in clearing the backlog of the cases.
The state of the Indian Judicial System seems to be in utmost distress. The need of the hour is for the various stakeholders of the State, including the legislature, executive, judiciary and the people of the country is to come together and address the issue of pendency of cases, to whatever extent they can in their individual capacity and to promote the reformative measures taken up by the various state actors to effectively address the issue.
There is a need of some bold decisions on the part of the people whom the public look up to for justice. It is essential to maintain the very legitimacy of law, which is in a constant state of decline, as per renowned legal scholar, Upendra Baxi. The acute delays in delivery of justice, many a times, fails the very purpose of filing the case and this leads to delegitimization of the law in the minds of the people.
Indeed, it can well be said, “Justice delayed is Justice denied”, and hence, arises a blatant need to address delay in justice delivery mechanism.
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