P. V. Saravanaraja
There is a well-known saying that “Justice delayed is justice denied.” Denial of ‘timely justice’ amounts to denial of ‘justice’ itself. The two are integral to each other. Timely disposal of cases is essential for maintaining the Rule of Law and providing access to justice which is a guaranteed fundamental right.
In India the justice delivery system, which is considered to be the third pillar, is in a bad shape. A survey of the working of more than half a century of Indian Judicial System reveals that this system, which had worked smoothly and satisfactorily for centuries, has now failed to deliver justice expeditiously. Our Endeavour is to find out the ailment of the Judicial Institution like backlog of cases and treat it with better medicine, to ensure the smooth and effective functioning of the judicial institution.
The Law Commission of India in its Report No.245 on Arrears and Backlog
The focus of the report is to examine and suggest additional judicial manpower and its optimal utilization. The report is largely driven by the Hon’ble Supreme Court when, in the matter of Imtiyaz Ahmad v. State of UP, the Hon’ble Supreme Court asked the Law Commission to undertake an inquiry and submit its recommendations in relation to creation of additional courts to help in elimination of delays, speedy clearance of arrears and deductions in costs. This report was submitted to help the government in framing its policy with regard to judicial reforms.
The Commission is fully aware as seen in the report that terms such as ‘arrears’, ‘pendency’ and ‘backlog’, which are so commonly used in almost all kinds of discourse on working of the justice administration system in India, are used very vaguely and beg clear and precise definition. The report is an attempt to reflect and throw more light on some of these terms, and it is hoped that the policy makers and other stakeholders in the system may find these reflections and attempt to introduce some clarity by the present work of some use, during their course of deliberations on judicial reforms.
Defining Key Concepts: Pendency, Delay, Arrears, and Backlog
There is no single or clear understanding of when a case should be counted as delayed. Often, terms like “delay,” “pendency,” “arrears,” and “backlog” are used interchangeably. This leads to confusion. To avoid this confusion and for the sake of clarity, these terms may be understood as follows:
Pendency: All cases instituted but not disposed of, regardless of when the case was instituted.
Delay: A case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of.
Arrears: Some delayed cases might be in the system for longer than the normal time, for valid reasons. Those cases that show unwarranted delay will be referred to as arrears.
Backlog: When the institution of new cases in any given time period is higher than the disposal of cases in that time period, the difference between institution and disposal is the backlog. This figure represents the accumulation of cases in the system due to the system’s inability to dispose of as many cases as are being filed.
Analysis of data and information thus made was then examined in light of various methods of judicial manpower planning, practiced in many other systems while keeping in view the peculiarities of Indian judiciary and profession’s culture. Adopting this approach, the Commission has finally arrived at making following suggestions and recommendations:
Number of judges to be appointed on a priority basis
The system requires a massive influx of judicial resources in order to dispose of the backlog and keep pace with current filings.
Increasing the age of retirement of Subordinate Court Judges
That, in order to meet the need for a large number of appropriately trained Subordinate Court Judges, the age of retirement of Subordinate judges be raised to 62. The benefit of increase in the retirement age is made available to judicial officers in terms of the directions of the Supreme Court in All India Judges’ Association v. Union of India.
Creation of Special Courts for Traffic/Police Challan Cases
That special morning and evening courts be set up for dealing with Traffic/Police Challan cases which constituted 38.7% of institutions and 37.4% of all pending cases in the last three years, before the Subordinate Judicial Services.
Provision for Staff and Infrastructure
That, adequate provisions be made for staff and infrastructure required for the working of additional courts.
Periodic Needs Assessment by High Courts
The High Courts may be required to carry out Periodic Judicial Needs Assessment to monitor the rate of institution and disposal and revise the judge strength periodically, based on institutions, disposals, pendency and vacancy.
Need for system-wide Reform
A systemic perspective, encompassing all levels of the judicial hierarchy, is needed for meaningful judicial reform. Taking measures for the timely disposal of cases at all levels of the judicial system, including by monitoring and increasing judge strength throughout the system; encouraging Alternative Dispute Resolution Methods, where appropriate and more efficient allocation and utilization of resources is required to fulfill the goal of providing timely justice to litigants.
It is pertinent to remember the speech of Hon’ble former Chief Justice of India, Justice Dipak Misra, suggesting our motto is to be shaping our judicial future: inspiring change through “Timely and Effective Justice” in order to avoid judicial delay in the National Conference on ‘initiatives to reduce pendency and delays in judicial systems’ held on July 27, 2018, suggested the following solutions for the problems of avalanche of litigation and the docket of pending cases and the same has to be controlled with deft approach.
- Time Limit to dispose of technical pleas by all courts.
- Mechanism to monitor progress of cases from filing till disposal, categorize cases on the basis of urgency and priority and also grouping of cases.
- Set annual targets and action plans for subordinate judiciary and High Courts to dispose of old cases and maintain a bi-monthly or quarterly performance review to ensure transparency and accountability.
- Keep track to bridge the gap between institution and disposal of cases so that there is not much backlog.
- Shortage of Judges is no doubt a factor responsible for pendency but at the same time, it is found that some courts have been functioning and performing better in the same conditions. Adopt such courts as models. This underscores the need to understand that existing capacity has to be better and fully utilized rather than solely concentrating on developing additional capacity.
- Modernization, computerization and technology – court automation systems, e-courts, digitization of court records, access to information about cases, if possible, could be made available to litigants in a simpler mode, instead of going through multiple web pages, otherwise “access to justice” would remain illusory and we would distance ourselves more from the common man who is the real beneficiary of the justice dispensation system.
- Strive for more alternative methods of dispute resolution in various forms like arbitration, mediation, pre-litigation mediation, negotiation, Lok Adaalats, well-structured and channelized plea bargaining, etc.
- Committees at the high court level have to be proactive and functional committees. They should meet at least once a fortnight and keep their surveys and reports in digitized format.
- Frame strict guidelines for grant of adjournments especially at the trial stage, also stricter timelines for cases, not permitting dilution of time frames specified in CPC for procedural steps in the civil proceedings.
- Explore options of Saturday Courts for cases other than criminal appeals. Every drop counts for it is common knowledge that little drops of water make the mighty ocean. It is small things that add up to produce the huge. It is through persistent efforts and continued application that major accomplishments would finally come to fruition.
- Consider and explore options for setting up fast-track courts and fixing time limits or deadlines for certain categories of cases especially in subordinate courts.
- Multi-pronged approach and momentum required. Lackadaisical attitude and the mindset of delay have to go.
- Emphasis has to be given to basics and minutest details with meticulous planning since you must have heard the way Benjamin Franklin had described how for want of just a horse-shoe nail, a kingdom was lost.
- High Courts may form think tanks with Judges, lawyers and academicians to consider and explore other innovative modes and initiatives to reduce delays and pendency.
- Our motto should be – “Shaping our judicial future: Inspiring change through ‘Timely and Effective Justice”
Society is nothing but comprising of individuals. Whatever the changes we need to bring in the society, we need to make those changes within, at first. We (Lawyers and judges) should come together to make sincere efforts to avoid judicial delay and render timely justice to the needy.
 Imtiyaz Ahmad v. State of Uttar Pradesh and Ors., AIR SC 2012 642.
 All India Judges’ Association v. Union of India, Supreme Court of India, order dated August 24, 1993.
 All India Judges Association v UOI, (2002) 4 SCC 247 (“We are conscious of the fact that overnight these vacancies cannot be filled. In order to have Additional Judges, not only the post will have to be created but infrastructure required in the form of Additional Court rooms, buildings, staff, etc., would also have to be made available”).