Backlog of Cases: A Solution in Search of a Problem

Osama Noor and Mohd Malik

Abstract

Justice delayed is Justice denied and Justice hurried is Justice buried. Judiciary has been entrusted with the task of adjudicating the matter expeditiously but the delay in justice has become a contentious phenomenon which is hampering and inhibiting the judiciary from resolving the matters swiftly. Timely disposal of cases is essential for maintaining the rule of law and providing access to justice which is a guaranteed Fundamental Right under Article 21 of the Indian Constitution. However, the present judicial system is unable to deliver timely justice because of humongous backlog of cases which have perturbed the legal fraternity of our nation profusely. Therefore, several measures have been adopted in this regard like increasing the strength of judiciary, improving the quality of infrastructure etc. But none of them manifested a conducive result. Our judiciary is fraught with approximately 2.85 crores of cases which have crippled the administration of speedy justice. This shows how our nation is passing through a despicable and deplorable condition pertaining to the disposal of cases in a timely bound manner which is in contravention to the essence and spirit of our Constitution. This paper also envisages in highlighting the endeavours which ought to be taken to tackle and curb this menace of backlog of cases.

Introduction

A free generation of India fashioned a Constitution and a Republic, whose founding faith is the supremacy of law, social justice and secular democracy. The conscience of this document serves as a philosophy of our jurisprudence and the role of law in the social engineering. The Constitution of India in the Preamble provides to all its citizens social, economic and political justice which cannot be realized unless the three organs of the State, the legislature, executive and judiciary join hands together to find ways and means for providing to the Indian poor equal access to its justice system. The Indian legal system in its current condition is far from meeting its constitutional obligation of providing justice. Laws are made to regulate human relations on the basis of the policy adopted by the Government or the political parties in a democratic setup. In this super fast world, we seek for super fast justice but in older days, litigants had enough time to spare for litigation. But time has changed now and everybody is busy. All of us are in hurry. Many litigants give up litigation midway due to delay. In order to ensure a system, where justice is available and redressal satisfies the expectation of the people, there is need to develop a method whereby speedy trial is accessible. The demand of justice is not only that justice should be provided but also within a reasonable time. Delay made in the adjudication of a case, result in arrears, which violates the right of fair and speedy trial. The Right to Fair and Speedy trial is guaranteed as a fundamental right under Article 21 of the Constitution of India. Any delay in expeditious disposal of criminal trial infringes the right to life and personal liberty guaranteed under the same.

Justice Krishna Iyer while dealing with the bail petition in Babu Singh v. State of UP, remarked, “Our justice system even in grave cases, suffers from slow motion syndrome which is lethal and detrimental to ‘fair trial’ whatever the ultimate decision is. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”Leading jurists have described the Supreme Court as an ‘all India miscellaneous court’, and the justice of this court have ignored both constitutional guidelines, and guidelines laid down from time to time by the Supreme Court itself for the admission of cases. In the recent past, litigation has increased immensely. The population growth, improved financial conditions, lack of tolerance and materialistic way of life may be some of the causes. Recently, one Hon’ble Judge of Delhi High Court heralded that 464 years will be required to clear the backlog with the present strength of the judges in that High Court. The position may not be that gloomy but is still alarming.                      

A famous British historian said that, “Delay is the deadliest form of denial”. The Right to Speedy Trial was first mentioned in the landmark document Magna Carta, Clause 40 of Runnymede Charter, 1225 which disallowed the selling of justice or its denial or delay. The Right to Speedy Trial is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to fair trial. Article 21 of Indian Constitution provides that, ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law’. Adopting a liberal interpretation, the Hon’ble Supreme Court of India has read several rights in Article 21 to make ‘life’ more meaningful and worth living. One of those interpretations is Right to speedy, fair and open trial. The accused in the cases might have been on bail – but the injustice of pendency of trial for long periods is the uncertainty and the concomitant anxiety suffered by the under-trial. The under-trial is inhibited in making future plans for his life or executing present ones due to the uncertainty which pendency of trial brings. Confidence starts to erode and at the end of the trial, even if the person is honourably acquitted, the scars of the long trial remain thus one feels condemned despite the acquittal.

Methodology

Scope of Study

 The scope of this paper is to study the concept of backlog of cases in relation to the understanding of its ground reality and to discern this enigma of burgeoning of cases. The paramount focus of this paper would be to explore and identify how this conundrum of backlog of cases affects the society by causing a delay in delivery of justice to the common masses.

Objective

 The main objective of this paper is to gain in-depth knowledge about the causes for the backlog of cases and the understanding of plausible solutions through different reports of Law Commission, myriad of journals, open editorials and other landmark judgments of the courts.

Research Questions

The following research questions have been broadly identified:

  1. What is the ground reality of burgeoning docket?
  2. What are the factors which hampers judiciary from working expeditiously?
  3. What are the deplorable repercussions of procrastination of judicial proceedings?
  4. What is the way forward to tackle this menace of backlog of cases?

Conundrum of Burgeoning of Cases

In Narasimhulu case, Justice Iyer observed: Realism is a component of humanism which is the heart of the legal system. We come across cases where parties have already suffered and in one case over 10 years in prison. These persons- may perhaps be acquitted – difficult to guess. If they are, the injustice of innocence long in rigorous incarceration inflicted by the protraction of curial processes is an irrevocable injury and, at the best law is vicariously guilty of dilatory deprivation of citizens’ liberty a consummation vigilantly to be vetoed.[1]

To a great extent, the prevailing turbulence in the courts is a self-inflicted wound on the judiciary. The higher judiciary, and particularly the Supreme Court, has not been able to devise any mechanism for the screening of cases. There is an evident collective inability on the part of this court to regulate its docket, and to respect the final determinations made by the high courts. The Supreme Court does not thwart itself to those cases in which there is a sheer manifestation of significant constitutional conundrums and important questions of law. Instead, it reopens litigation abolition, going through every detail of each case in hearing stretched over decades to give a final judgment that adds nothing to the existing body of laws and interpretations rather it exacerbates the situation further. In the US, the Supreme Court consists of a single bench of 9 judges who site banc (in full strength) on each and every case considered by the court. The Americans are a very litigious people, constantly running to the courts over every issue. Yet the American Supreme Court selects just 160 to 170 cases out of the 5,000 odd cases filed before it each year. The rest are simply discharged as involving frivolous issue of law.

With the advent of ‘Public Interest Litigation’, an avalanche of possibilities was created for those who had no access to the court because of their parsimonious conditions. In the early eighties it was one of the most significant developments in Indian jurisprudential history but this is perturbing the judiciary profusely because of judges’ laxity and sluggishness in admitting the appeal without giving a pondering to the same which facilitate the burgeoning of arrears in the court. Every guideline led down by the Supreme Court for admission of matters “in the public interest'” has been violated by the court itself, resulting not only in grotesque and egregious anomalies but in a distinctive loss of stature for the court. In reviewing this situation, one must recall the original intent of the creation of a Supreme Court. This was to be a court of final appeal.[2]

In 1972, High Courts Arrears Committee was set up by the Government of India under the Chairmanship of Justice Shah. The Committee noted the reasons for arrears as population explosion, increase in legislation by Parliament and State Legislature, inadequacy of judicial strength, unsatisfactory appointment of judges, inadequacy of staff and inadequately trained staff, failure to make optimum use of judge strength, large number of appeals from criminal courts and inadequacy of accommodation.

 No serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for ephemeral periods for help in clearing the backlog of cases. The practice of some judges in delaying the delivery of judgments for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice.

Delay is caused by lack of swiftness shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without giving concrete reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily cumbersome judgments.

Delay in Appointment of Judges

The increase in pendency in twelve years was about 56 lacs cases whereas the disposal missed due tonot filling all sanctioned posts was nearly 661 lacs. The increase in cases each year is less than 2.5 % of the average number of cases instituted each year, whereas the average vacancy is about 21%!.There can be no excuse for keeping judicial positions vacant while the nation suffers because of this neglect. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. While the sanctioned judicial positions are about 19.1 judges per million the actual working strength is only 13.9 judges per million population. For the sake of the nation all those responsible must ensure that all judicial appointments are made in a timely manner[3].

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Transfer of Judges

Transfer of the judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgment and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled that leads to the formation of arrears in the courts.

The pendency of cases in the Supreme Court is very reflective of the delays in the judicial system, thus, a cause of extreme concern requiring immediate remedial steps. Though a maximum time limit of one month has been considered reasonable for the delivery of judgment, there is no mechanism for enforcement of any time limit, and this malpractice on the part of some judges thus goes on unchecked.

Quagmire of Adjournments

Each day, the HC hears anywhere between 10 and 30 new cases listed as “urgent”. The Bench, after preliminary hearing, issues notice of motion to the respondents in case it takes cognizance of the matter. The notices often are not served and have to be issued again. Then the other side takes its own time to file a reply. The actual hearing only starts after the completion of the entire process. The unproductive procedure takes nearly two hours of the court’s time daily, leaving little time for the Bench to hear arguments in the pending cases. In the absence of a bar on the time permitted to a lawyer to argue a matter, a single case can eat up the court’s remaining time, resulting in the other cases getting adjourned.[4]

Overburdened Supreme Court

Under our Constitution, the Supreme Court of India became the highest court of appeal for the whole of India. Its jurisdiction is wider than that of any Federal Supreme Court. It has original jurisdiction in disputes between the Union and the States, and between the States inter se. It has original jurisdiction under article 32 of the Constitution for the protection of fundamental rights. It is the highest court of civil and criminal appeal; and it has overriding powers to 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 except a court or tribunal constituted by or under any law relating to the Armed Forces. It also has advisory jurisdiction under article 143 of the Constitution. All these factors perturb judiciary further.

The pendency also refuses to come down drastically in the absence of effective implementation of concepts, such as plea bargaining. The tribunals, too, have not made much of a difference as the appeals finally land up before the High Court Bench[5].

Indifference On Part of the Presiding Officers

The existence of mass of arrears takes the heart out of the presiding officers. He can hardly be expected to take a strong interest in the preliminaries, when he knows that the hearing of the evidence and decision will not be by him but by his successor after his transfer. So long as such arrears exist, there is temptation to which many residing officers succumb is to hold back the heavier contested suits and devote attention to the lighter ones. The turnout of decisions to the contested suits is thus maintained somewhere near the figure of the institutions, while the real difficult work is pushed to background which facilitates the burgeoning of docket.[6]

Impact Of Delay In Trial

In the absence of the main bread winner, the family is many times forced into destitution with children going astray. This combined with the social stigmatization and ostracizing that they face, leads- to circumstances propelling children towards delinquency and exploitation by others. It is an inexorable circle. The problems become acute when they belong to the socio-economically marginalized and explicated sections of the society. The dominant class does not fail and loose time in taking advantage of this situation to exploit the remaining family members to the fullest possible extent. This can take the form of rape or forced prostitution of the prisoner’s wife and/ or his daughters. It is easy to imagine what we are then leading to from here onwards. While a section of criminal gangs indulge in violent crimes and graduates into politics using the money power so acquired, most organized crime in recent years is involved in informal adjudication of disputes backed by-a threat of brute force and violence. As the Courts have failed to deliver justice, there is a growing demand for such gangs that can enforce rough and ready justice.[7]

In a large measure, the failure of system of justice meant that no entrepreneur or business man or even ordinary citizen could rely, on law courts to enforce contracts and agreements. The undermining of the sanctity of contracts and agreements has had a very debilitating impact on investment, production and economic growth. The failure of the criminal justice system has led to the near breakdown of public order in many pockets of the functioning of the police has leading to a crisis of govern-ability of India.

 The arbitrary and unaccountable functioning of the police has led to complete alienation of many citizens from the state. The distrust in Courts has its counter-effects on the society. The victim of the crime always nurtures within him a feeling of vengeance. If he finds the law to be inefficient to punish the wrongdoer, he may adopt ways of self-help to satisfy his feeling of vengeance. Thus, the crimes increase and the society suffers.[8]

Sometimes, the offences with which the accused is charged are so trivial – that even if proved would not warrant punishment for more than few months, but the accused has to suffer detention because of the protracted nature of trial.[9] It is not only expensive in terms of money but has also resulted into over crowdedness in the prisons. The baneful effect of overcrowding is that it does not permit segregation among convicts – those punished for serious offences and for minor offences. As a result of this, hardened criminals may spread their influence over other inmates. The juvenile offenders, who are kept in jails because of inadequacy of alternatives places where they can be confined, come into contact with hardened criminals and are likely to become professional offenders.[10]

Judicial Pronouncements

The plight of under-trial prisoners for the first time came to the notice of the Supreme Court in Hussainara Khatoon,[11]wherein it was disclosed that thousands of under-trial prisoners were languishing in various jails in the state of Bihar for periods longer than the maximum term for which they could have been sentenced, if convicted. While granting a charter of freedom, for under-trials who had virtually spent their -period of sentence, the Court said their detention was clearly illegal and was in violation of their fundamental rights guaranteed under Article 21 of the constitution of India. While dealing with the writ of habeas corpus of the accused persons who were detained in various prisons of Bihar as under-trial prisoners for more than seven years, the Supreme Court in Mantoo Majumdar v. State of Bihar, expressed its deep concern over the appalling indifference and negligence on the part of the magistrate. During all these long years not a single charge-sheet was laid before the concerned magistrate. On many occasion accused were produced before the magistrate who passed routinely orders of detention without least caring for the application of judicial mind in these case. This led the Supreme Court to remark: “To put a man in prison and forget his personhood-thereafter, to deprive a man of his personal liberty for an arbitrary period without monitoring by the- law, to keep a man in continue custody unmindful of just, fair and reasonable procedure – these shake the mandates of Part III of the Constitution.”

The most infamous case in India is that of Ajay Ghose, who spent 37 years in prison, till November 1999. He was arrested for murdering his brother in 1962: Subsequently he was certified as insane and after his mother’s death in 1968, “nobody came to visit him. Everybody simply forgot him, while he was in prison, the trial judge and all the witnesses died. His life was the ultimate vicious circle. He could not be acquitted unless tried. Since he was legally a lunatic, he would not be tried. In November 1999, some group brought him to the notice of the Supreme Court and it took the Chief Justice of India to transfer him from the presidency jail of Calcutta to the missionaries of charity home. Mr. Ghosh’s life is the ultimate sacrifice to the Indian Justice System.[12] Too many people fall into this coil without recourse or ability to get out. So it is prejudice to a man to be detained without trial. It is prejudice to a man to be detained without a fair trial.[13]

Importance of Article 21

In Nilabati Behera.v. State of Orissa,[14]the Supreme Court of India granted compensation to the poor victims of illegal detention at the hands of executive and death caused due to police atrocities. In this case, the Supreme Court observed: “It is axiomatic that convicts, prisoners and under-trials are not denuded of their fundamental rights under Article 21 of the constitution and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the state to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of their right to life. “His liberty is in the very nature of things circumscribed by the very fact of his confinement and, therefore, his interest in the limited liberty left to him is rather precious. The duty of care on the part of the-state is strict and admits of no exceptions. The wrong doer is accountable and the state is responsible if, the person in custody of the police is deprived of his life except according to the procedure established by law.”[15] In Kadra Pehadiya v. State of Bihar,[16]It was noted that once a person accused of an offence is lodged in the jail everyone forgets about him and no one bothers to care what is happening to him. He becomes a mere ticket number, a forgotten specimen of humanity – cut-off and alienated from the society as an unfortunate victim of a heartless legal and judicial system which consigns him to long unending years of oblivion in jail and it was finally concluded that the Constitution has no meaning and significance and human rights has no relevance for them. It is a crying shame upon our adjudicatory system-which keeps men in jail for years; on end without a trial.[17]

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The Way Forward

The justice delivery system requires the contribution of police officers so that the summons is served and witnesses appear in time and all the material evidences are produced without any delay. The record of witnesses called and produced should be maintained with reasons for non production. The judicial infrastructure needs improvement so that speedier adjudication can be provided to the parties.[18]

Justice Altamas Kabir has emphasized that the state government must be persuaded to agree to double the existing number of courts in subordinate judiciary, along with necessary infrastructure and ad ministerial staff at the earliest. According to the Supreme Court – supported National Court Management System it is estimated that the number of courts expanded six-fold while the numbers of cases expanded by double that is twelve fold. In order to achieve the ratio of 50 judges per million populations by the year 2040, when the population will be 1.5 billion and there will be a need to have 75,000 judges.

In the year 1987, Law Commission of India submitted its 120th report in which the statistics of different countries were studied. The report shows that India needs fivefold more judicial officer than the available number. It has also been considered as a Directive Principles of State Policy which mentions about the duty of the State to provide judicial officers. The present time has made it not only the duty of the State but also the fundamental right of individual to have fair and speedy trial. There is a need to take measures that appointments are made on the merit of candidate. The present data on the appointment of judges requires much faster pace so as to be proportionate to the population.

In this report, the Committee recommended on the curtailment of High court jurisdiction from tax, labour and education subjects. The establishment of Commission which is parallel to the High Court is recommended which may give wrong consequences. High court should be above these subjects. The services of retiring judges can be utilized which till the present date is not utilized. The experience and knowledge of these judicial officers can be helpful in reducing the backlog. Also, the present judge should not leave the office till his successor joins is not yet implemented. In the year 1991, the Law Commission recommended amendment in Code of Criminal Procedure, 1973 in Sections 256 which enables for the restoration of a criminal case, wherein the accused has been acquitted for the non-appearance of complainant and when there is a sufficient cause for the non-appearance. A meritorious complaint cannot be allowed to be inhibited only on the ground that the complainant was absent, even though there existed good and sufficient cause for such absence. And section 482 which Empowers the courts to restore the applications which are dismissed for default in appearance so as to meet the ends of justice. Commission recommended a new Section 482A to be introduced in the Code. However, no such recommendation is made till date. The acquittal of accused on the ground of absence of complainant should be evaluated so that the interest of prosecution is not defeated. Fair trial demands that right of both the parties should be protected which implies ends of justice is not achieved when the application is dismissed on default in appearance.[19]

The Rate of Disposal Method                                        

To address the two concerns that are a large existing backlog of cases and the other being the new one instituted daily which are adding to the backlog. The Law Commission recommended aforesaid method by increasing the number of judges required to dispose of the existing backlog and number of judges required for ensuring that new filings are disposed of in a manner such that further backlog is not created. Under this method one first looks at the current rate at which judges dispose of cases. Next one determines how many additional judges working at a similar level of efficiency would be required so that the number of disposals equals to the number of institutions in any one year time frame.[20]

If this status quo is maintained by judiciary then it can prevent itself from plunging into resolving the further backlogging of cases.

Time Based Method

 Itinvolves determining the ideal time taken by the judges in deciding the particular type of case on average. Then it requires determining the average number of cases of that type being instituted and pending in the courts.  Multiplying the number of cases with the time required per case, gives the number of judicial hours required to deal with cases of that type. Dividing this by the number of judicial hours available per year gives the number of judges required to deal with the cases of that type. Adding this information for all types of cases that a particular category of judges deals with gives the number of judges required for disposing off the case load.[21]

There should be re-examination and re-definition of crime under the various laws in the Criminal Justice System to ensure that appropriate procedures are available for different infringement of penal laws so that cases will be dealt with at a speed commensurate to the gravity of the infringement, with certainty in terms of time and punishment. Also, serious crimes yesterday may not be so considered today[22].

Plea Bargaining

Abraham Lincoln said: “Discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and time”

The concept of plea bargaining is extensively used in countries such as the US and South Africa. It has vindicated itself in various part of the world in reducing the humongous backlog of cases and in providing justice expeditiously without passing through cumbersome proceedings. The procedures in these jurisdictions allow prosecutors to drop charges. For instance, a murder charge can be replaced by negligence or a theft or a minor charge of trespass. Justice B. N. Aggarwal has quoted that Plea-bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty.[23] The imposition of sentence for a lesser offence or a lesser period serves the community interest and facilitates an earlier resolution of a criminal case.[24]

The cases put up for trial on a specific day should be listed in a manner that witness‘s time is best utilized. The cases should take their chronological order and provide one or two days consecutively to one police station thus saving time and cost.[25]

Establishment of the Supreme Court Benches at Other Places

It is quite often argued that the present pattern of working of the Supreme Court needs to be revised if any success in this direction is to be achieved. The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court. Also, the present situation makes the Supreme Court inaccessible to a majority of people in the country. In this context, it may be noted that in its 2nd (2004), 6th (2005) and 15th (2006) reports, the Parliamentary Standing Committee on Law and Justice has repeatedly suggested that in order to promote speedy justice available to the common man, benches of the Supreme Court have to be established in the Southern, Western and North-Eastern parts of the country. Law commission in its 20th (2007), 26th (2008) and 28th (2008) suggested the same. 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 that report, the Supreme Court can sit en banc at Delhi and deal with the same. This cost benefit ratio is an additional but important reason for reiterating support to the recommendations made in that report.[26] Despite these Reports, the Hon’ble Supreme Court has so far not agreed with the suggestion regarding setting up of its benches.

Mustering Of Cases With Identical Facts And Circumstances

Many cases are filed on similar points and one judgment can decide a large number of cases. Such cases should be clubbed with the help of technology and used to dispose of other such cases on a priority basis; this will substantially reduce the arrears. Similarly, old cases, many of which have become in fructuous, can be separated and listed for hearing and their disposal normally will not take much time. Same is true for many interlocutory applications filed even after the main cases are disposed off. Such cases can be traced with the help of technology and disposed off very quickly. Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes. The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involves complicated questions of law or interpretation of Constitution. Judgments must be clear and decisive and free from ambiguity, and should not generate further litigation. Lawyers must not resort to strike under any circumstance and must follow the decision of the Constitution Bench of the Supreme Court.

Establishment of Separate Investigating Agency

Police department is understaffed and has a heavy duty to perform and thus the defense side takes the advantage of such defect of investigating process. To improve the quality of investigation, commission suggested that investigation authority should be distinct from the police department. Such separation will ensure undivided attention to the detection of crime. It was felt that there is an urgent need to increase the cadre of investigating officers and for restructuring the police hierarchy to secure, inter alia, a large number of officers to handle investigation work.[27]

Alternate Dispute Resolution

Alternative dispute resolution (ADR) mechanism comprises of negotiations, conciliation and mediation can provide adjudication at a faster rate. The parties of ADR have win-win situation. They agree to negotiate which can produce better results only when proper training is provided to the mediators and conciliators. Today, ADR has got recognition among people and the settlement achieved is given binding effect by the court. Lok Adalats are established to deal with these cases at a speedier rate. In the yesteryears, the modes of ADR help in reducing the pendency[28].  

Technology 

We have modern technology, which facilitates us to collect a lot of information and making it available to Chief Justices, so that they are able to allocate their manpower efficiently. Digital techniques and tools are at our disposal, to collect information from an entire database from the time a case is instituted in a court of law to the final stages of appeal. Building up a judicial database will enable us to assess the performance of the courts as an institution, and the Chief Justices will be able to use it to assess the individual performance of judges. This will go a long way in identifying what the backlog is, what types of cases are clogging the dockets, etc.  As a part of digital resource management, we have home pages and websites, where judgments of courts can be instantly posted. At the moment, it takes a long time for courts to give copies of judgments; with being instantly posted on the home page, they will be easily and readily available to everyone. This is an important step for using the technology effectively, to expedite the process of judgments being accessible. E-filing and video-conferencing by dispensing with physical appearance saves precious time and resources and makes justice more easily accessible and a less expensive option.

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There should be only one forum for filing revisions against orders passed by Magistrates, that is the Sessions Court instead of two alternative forums as now provided which creates confusion as one party may go in revision to high court and other to sessions. This power should be given to sessions which will avoid multiplicity and reduce the burden of courts.[29]

In the year 2009, the Law Commission of India submitted its 230th report on reforms in the judiciary. The report recommended more judicial officers to be appointed to cope with the pendency of cases. In India, the ratio of judge to the population demands that not only the strength but also establishment of new Benches in Higher courts should be provided. At the trial court level also, Fast Track Courts or special courts should be established. This measure will be beneficial in reducing pendency. The number of working days should be increased at all levels. The frequent visit by judges to foreign countries should be avoided. Today, the visit to foreign countries is checked. It is the duty of the judicial officers to give back to the society what they have got. It demands labor and time. More appointments and the increase in working hours will help in achieving the goal. Another option is to organize two shifts in the same building without incurring additional investment by adjusting time of working of two shifts, viz. The first shift can start at 7 O’ clock and end at 1.30 P.M. and second shift can start at 2.00 P.M. and end at 8.30 P.M.96. The High Court of Delhi has over 250 vacancies which can’t be filled due to absence of court rooms for them[30].

Subordinate Courts

There is need of giving more impetus on establishing trial court at intermediate Panchayat level. In this regard, the Gram Nyayalayas Bill has been enacted in which the procedures have been kept simple and flexible so that cases can be heard and disposed of within six months. It is also envisaged that these courts will be mobile, to achieve the goal of bringing justice to people’s doorsteps.

Laxity on the part of Government and Lawyers

As it has been seen that government is involved in most of the cases and due to the sluggish and lethargic behavior of it in providing proper infrastructure, quality judges and basic things like a good library, typists etc. it should at least focus on reducing the filing of cases and plausible reasoning given by the government before filing a case. Lawyers are fetching inordinate amount of fee despite this they confront a debacle in the court because of their rudderless and feckless arguments which leads to the adjournments therefore more stringent laws should be enforced to curb them from deviating their main path for which they entered into this profession. There is a Bar Council that has been deputed with the task of taking actions against recalcitrant lawyers.

Creation of special courts for Traffic/Police Challan cases

Special morning and evening courts could be set up for dealing with traffic/challan cases which constitutes 38.7% of institutions and 37.4% of all pending cases in the last three years, before the subordinate judicial services. These courts should be in addition to the regular courts so that they can reduce the case load of the regular courts. In addition, facilities should be made available for online payment of fines as well as the payment of fines at designated counters in the court complex. Recent law graduates may be appointed for short duration’s example 3 years to preside over these special traffic courts. The cases pertaining to fines should be dealt by these courts. Cases which may involve imprisonment should be tried before regular courts in order to ensure fair process.                                                                                                                                                                                              

Honing the Skills of Trial Judges

The Commission expressed the view that improvement in the efficiency of trial judges will help to tackle the problem of arrears. The trial judge is the linchpin of the entire judicial system. The quality of trial judge should be improved by inculcating in the judicial officers professional competence, cool temperament and firmness. This can be ensured by upgrading the pay scale of the judges.  The Commission recommended that there should be a 3 to 6 months training course for recruits to the subordinate judicial office.

Fast Track Courts

The objective of the 213th Report is setting up of Fast Track Courts at Magisterial level with high-tech facilities. Over 38 lacs of cheque bouncing cases are pending in various courts in the country. There are 7, 66,974 cases pending in criminal courts in Delhi at the Magisterial level as on 1st June, 2008. Out of this huge workload, a substantial portion is of cases under Section 138 of the Negotiable Instruments Act, 1881 which alone count for 5,14,433 cases (cheque bouncing).[31]The number of complaints which are pending in Courts seriously cast shadow on the credibility of our trade, commerce and business.

Periodic Assessment by High Courts

 TheLaw Commission in its 245th report strongly recapitulated that High Courts be directed to evolve uniform data collection and data management methods in order to ensure transparency, to facilitate data based policy prescriptions for the judicial systems and to monitor the rate of institution and disposal and revise the judge strength periodically, based on institution, disposal, pendency and vacancy using the formula prescribed in the report.

If we are punctilious about reducing the pendency of cases in our courts, we will have to increase our judge–population ratio substantially and alongside bolster the court infrastructure and additional human resources needed for courts to function effectively. These measures have to be accompanied by other measures such as decriminalization of minor offences, using the provision of arrest by the police with greater discretion, implementing the provision of the police providing bail in non bailable offences while the under trial is in police custody and computerization of the criminal justice process, timely provision of police escorts to take under trials to courts on their court dates. Other steps needed include implementation of the Probation of Offenders Act which provides for releasing the offender in less serious offences back to the community on a “bond of amenable behaviour” or under the supervision of a probation officer for a fixed period of time (usually between one and three years), instead of sending the person to prison.[32]

Conclusion

The delay in dispensation of justice has to be eliminated by taking concrete steps otherwise the day is not far when the whole system will dilapidate. This is not just about disposal of cases but in many cases it is often perceived that the quality of judgment is seriously compromised. Judiciary has to monitor both, not only the rate of disposal of cases but also the quality. The quality should not be compromised in this great hurry to increase the disposal rate.

There are certain provisions pertaining to social, economic and political justice which have been incorporated in the preamble of our Constitution which cannot be realized, unless the three organs of the government i.e. legislature, executive and judiciary, join together to find ways and means for providing the Indian poor, equal access to its justice system. Things we know are easier written, than done and for all these reforms, what is required is a lot of discipline, introspection, scrupulousness and discreetness and a realization that without these reforms, the present system is under threat. This is high time for both judges and lawyers to tweak their mindsets if they really want to provide justice to the rank and file people of the country. Unless our mental barriers to reforms are mellowed, all doses of external remedies are bound to fail. We must remember what Gandhi Ji said: “If you want to see the change, be the change”. We need to adopt the above suggestions and recommendations accordingly.


[1] Dalvadi Sukhabhai v. State of Gujarat, CriLJ 2502 (1989).

[2] Aditya Narayan, Essay on Indian Judiciary Problems and Prospects of Reform (November 18, 2019, 8:30 PM), https://www.academia.edu/7259452/Essay_on_Indian_Judiciary_Problems_and_Prospects_of_Reform .

[3] Shailash Gandhi, Judicial Backlog Can Become History(November 18, 2019, 8:30 PM), https://www.livelaw.in/columns/judicial-backlogs-  can-become-history-143978 .

[4] Saurabh Malik, Long Wait for Justice, Tribune India, Jan 13, 2019.

[5] Ibid.

[6] Rankin Committee on Fair and  Speedy Trial, Civil Justice Committee 1924–1925.

[7] Neelam Sharma, The Judicial System and Governance: Study Of Subordinate Judiciary In Rajasthan 157-158 (Aalekh Publishers, 2007).

[8] K.D. Gaur, Criminal Law & Criminology 682 (Deep & Deep Publications India, 2002).

[9] Jagmohan Singh, Right to speedy justice for under-trial prisoners, (Deep & Deep Publications, 1997); Hussainara Khatoon.v. State of Bihar, A.I.R. 1979 S.G. 1360; Babu Singh.v. State of U.P., A.I.R. 1978 S.C. 527; NarasimhuJu.v..Public Prosecutor, A.I.R.1978 S.C. 429.

[10] Ram Murty v. State of Karnatak, A.I.R. 1997 S.C. 1739.

[11] Hussainara Khatoon v. State of Bihar A.I.R. 1979 SC 1360.

[12] R. Shreekumar, Access to Justice for Under Trial Prisoners: Problems and Solutions. Maurer School of Law Indiana Universtity Journal (2011).

[13] State of Maharastra.v. Champalal, 1981 AIR 1675.

[14] Smt. Nilabati Behera Alias Lalit v. State of Orissa and ors.,1993 AIR 1960.

[15] Ibid.

[16] Kadra Pehadiya.v. State of Bihar, 1981 Cri. II.J. 481 (SC).

[17] H Syed Mathani, The right to speedy trial, The Hindu, 2001.

[18] Law Commission of India, 77th Report on Delay and Arrears in Trial Courts (1978).

[19] 141stReport Of Law Commission of India,1991.

[20] 245th Report of Law Commission of India, 2014.

[21] Ibid.

[22] 142nd Report of Law Commission, 1991.

[23] Devina Gupta, Plea Bargaining-A Unique Remedy to Reduce Backlog in Courts, 116 Cr. L. J., 67 (2010).

[24] Saumya Misra, The Criminal Justice System and Plea-bargaining in India, 2 Cr. L. J., 148 (2008).

[25]  154th Report of Law Commission of India, 1996.

27 Ibid.

[27] supra note 25.

[28] 213th Report of Law Commission of India, 2008.

[29] 221st Report of Law Commission of India, 2009.

[30] Abhinav Garg,No space for more judges-HC to gov.,The Times of India,  January 18, 2014 at 3.

[31] Hon‘ble Mr. Justice Ajit Prakash Shah, From the Chief Justice’s desk, Annual Report (November 18, 2019) http://delhihighcourt.nic.in/writereaddata/upload/AnnualReport/AnnualReportFile_SGNPJ8JT.PDF .

[32] Vijay Raghvan, Under Trial Prisoners in India, 51 E & P Weekly 4 (2016).