India ranks second in the most populated countries of the world but as far as the number of litigations and litigants are concerned, we are undoubtedly the World Leaders. It is indeed a cause of grave concern that more than 3.5 crore cases are pending in the various courts across the country. The question arises as to who is responsible for the clogging of the courts. Is it it the litigants, the out-dated judicial system, the overburdened advocates, the obsolete laws, the complexities in the various Laws, the poor infrastructure of the Courts, the role of the Government as the biggest Litigant or all of them put together?

The Mounting Pendency:

The Economic Survey for 2018-19 shows 3.53 crore pending cases clogging the Indian judicial system. This number is undoubtedly very big and appears insurmountable. The Pendency in District and Subordinate Courts account for 87.54% of the total pendency whereas the pendency in the 25 High Courts is 12.30% and 0.16% in the Apex Court.

It is pertinent to refer to Report of Administrative Staff College, Hyderabad submitted to the Ministry of Law in January 2018 which states that 17,62,000 cases were instituted in 2015 in the Higher Judiciary while 1,89,40,000 cases were instituted in the various District Courts around the country. This clearly demonstrates the colossal pendency of cases in the Courts impliedly denying speedy justice to the oppressed.

Vacancies in High Courts:

There are 25 high courts in India. The number of total judges sanctioned in these high courts is 1079 of which 771 judges are permanent and remaining 308 sanctioned for additional judges. As of August 1, 2020, 394 of the seats (about 36%) are lying vacant. There are 20 lac advocates practicing in our country. Do we not have just 394 competent and honest advocates who could be elevated to the Bench? Without adequate number of Judges, the pendency in the High Courts is not going to decrease.

The Collegium and the Government both share the responsibility for the appointment of Judges to the High Court and the Apex Court. There appears to be lack of Will and Commitment of both the functionaries for political reasons or otherwise for timely appointment of Judges. Moreover, the mandated number of Judges for the High Courts and the Apex Court needs to be enhanced in view of the large pendency of cases for their speedy disposal. Similarly, the number of Judges in the subordinate judiciary needs to be increased manifold to provide time-bound respite to the litigants.

Government is the biggest Litigant:

One often asked question is as to who is the biggest Litigant in our country. It is a shocking revelation that our Government is the biggest Litigant. 45% of the pending litigation is by and against the Government- Central Government, State Governments, local Governments and Central / State Direct and Indirect Taxes. No official in the Government is prepared to grant relief by applying a Precedent as he is afraid of future administrative action on him for charging him for loss of revenue.

Consequently, even where matters stand covered by earlier Binding Precedents of the High Courts or the Apex Court, which are binding under Article 141 of the Constitution, are ignored and frivolous appeals/ SLPs filed thereby clogging the Courts and wasting the precious time of the Courts. Article 141 of the Constitution of India expressly mandates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India.

Thus, the general principles laid down, by the Supreme Court are binding on each individual including those who are not a party to an order. Similarly the Precedents of the High Court are binding on the officers of the State under Article 227 of the Constitution. Lack of consistency in accepting orders and filing of appeals/ revisions by the Government is another area of worry. The Government accepts the orders in certain matters while in similar matters the Government agitates the matter in a higher forum. Lack of consistency in similar matters is highly discriminatory and undesirable and results in clogging the Court.

No scrapping of Ultra Vires Provisions:

A number of provisions of the various Acts have been declared 'ultra vires' by the Apex Court but these provisions still exist in the Acts and are not scrapped by the Government/Legislature creating confusions in their implementation by the lower authorities, who are apparently oblivious of these legal developments.

For example Section 118 of the Indian Succession Act had been declared discriminatory under Article 14 of the Constitution and thereby declared ultra Vires but the said provision has not been scrapped/ amended in-spite of categorical Declaration of Law by the Apex Court in the case of John Vallamattom And Anr vs Union Of India on 21 July, 2003. Hundreds of provisions of various Acts have been declared Ultra Vires but no corresponding amendments have been legislated.

Innumerable Acts- need for scrapping obsolete Laws:

India till a few years ago had 2781 Central Acts and a still larger number of State Laws. Most of them enacted during the British Raj and date back for more than a century. A number of amendments have been made, a number of Acts have become redundant with the passage of time and need to be scrapped/ abrogated.

The Government ought to take speedy efforts in pinpointing such redundant and out-dated Central/ State Acts and scrap them. One more area which needs immediate concern of the Government is Simplification of existing Laws to minimise multiple interpretations which automatically lead to prolonged litigation. Certainty of law can also contain litigation. A lot of amendments are being legislated and as a consequence thereof the settled legal position becomes unsettled.

Justice means Speedy disposal of cases:

It is often said that Justice Delayed is Justice Denied. This means that if legal redressal or equitable relief to an injured party is not available early, it is effectively the same as having no remedy at all. Justice is one of civilization's foundational goals. It is therefore imperative for the judiciary to perform its duty in a manner to enable the society to continue its pursuit of peace, harmony and progress.

It is pertinent that a recently the Apex Court in the case of V. Kalyanaswamy (D) by LRS. and ANR vs. L. Bakthavatsalam (D) by LRS. and ORS finally decided the matter of inheritance on July 17, 2020 almost 65 years after institution of the case. This certainly cannot be termed as Justice. It is a matter of common knowledge that everyone who goes for redressal to the court has to wait for generations for getting justice. Justice becomes meaningless and redundant after a particular span of time.

Such an inordinate delay in imparting justice in the long term leads to an erosion in the faith of people. One is reminded of Jarndyce and Jarndyce, a fictional court case in Bleak House by Charles Dickens, progressing in the English Court of Chancery. The case is a central plot device in the novel and has become a byword for seemingly interminable legal proceedings.

Jarndyce v Jarndyce concerns the fate of a large inheritance. The case has dragged on for many generations and the legal costs ultimately devoured the whole estate and the case had to be abandoned. Dickens used it to attack the chancery court system as being near totally worthless with an advice to Suffer any wrong rather than come here!

The position of our legal system as it exists today cannot be said to the better than Dicken's court system. But we have to find out solution to this problem so that there is timely redressal for the common man and the Real Rule of Law is established.

Suggestions for unclogging:
The only solution to unclog the Courts and to provide time-bound justice to those approaching the courts is perhaps to fix a mandatory time limit for the disposal of cases. It should be made compulsory for those holding the judicial chairs to render decisions in civil/criminal cases within a specified time limit. If the obligation to impart justice through timely and reasoned manner is breached, as it flagrantly has been for decades in our country, the rule of law is subverted and becomes nugatory.

This situation is akin to a situation of lawlessness and in fact it is prevalence of state of pandemonium. The golden rule of law is “to none deny or delay, right or justice” but the stark reality is that delivering justice expeditiously is unheard and unseen in our country. The biggest problem is that there is no accountability of the judiciary which leads to state of anarchy. The rule of law, after all, cannot be seen to act arbitrarily and must be held accountable.

If Transparency and Openness are achieved, judicial arbitrariness is automatically curbed. If the judge does not comply with the mandatory time frame, they ought to give explanation for the reasons of delay. Extension of time can be granted by their heads, on specific requests, but in exceptional circumstances after giving reasons and allowing limited fixed time to complete the proceedings. This move shall further strengthen the judiciary rather than dampening the spirits of judiciary.

It would be trite to refer to an instance wherein the Court of Appeal of England and Wales criticized a High Court judge in such terms that he was compelled to tender his resignation to the Lord Chancellor, when he had delayed imparting of Justice inordinately. This Precedent of UK should be emulated in our country, which also follows Common Law. Delays beyond the stipulated time cannot be tolerated in a country committed to dispensing Justice within a Time Frame.

Adjournment is catalyst for clogging:
One of the biggest menaces of Delay in disposal of cases by Courts is the tendency/tactics of seeking repeated adjournments on lame/baseless grounds. Once the time Limit for final disposal of cases is mandated, the Courts will not be able to grant frequent Adjournments. Moreover, adjournments should be ordered in really demanding circumstances and that too for the next working day and not for months and years together.

The total number of Adjournments in a case in District Courts should be not more than 2-3 during the entire hearing of the whole case. No adjournment should be given on ground of busy schedule of the arguing lawyers. This will also promote and give new opportunities to young and budding lawyers to establish themselves as they are not that busy.

Remand of cases to be minimised:

One of the other precipitating factors in the judicial system is the tendency to remand the cases by the Superior Courts for reappraisal of the law and facts. There have been a number of judgements of the higher courts wherein the courts have given detailed judgements but did not decide the long pending dispute and remanded the matter for fresh adjudication to the lower court.

The Courts usually discuss the applicable laws but relegate the matter to the lower court without a framework or a direction. It cannot be denied that the courts in writs and revisions can only decide the question of law and are not to do appraisal of facts but while sending back the matters to be decided afresh they ought to lay down the law and direct the subordinate court to decide the matter expeditiously after ascertaining the true facts of the case in accordance with the law laid down by them.

Virtual hearing during and Post Covid-19:

The use of Technology has made it possible for our Higher Courts to impart justice during the period of Covid-19 pandemic but only in very urgent matters. Even Post Covid-19, Virtual hearing can also help in unclogging the Courts. In cases of bail, stay, minor offences, admissions, recording statements of witnesses, grant of interlocutory orders, disposal of miscellaneous applications etc. should be heard and disposed of only through virtual hearing.

This will save the valuable time of the Courts. It is the right of every citizen of our country to have an effective legal remedy and timely redressal and Virtual Hearing shall foster timely hearing and redressal. Even in High courts, there should be designated ' Virtual Benches' running parallel to normal physical benches.

Overhaul of Judicial/ Court system:

The stark reality is that the existing system is too overburdened and the judiciary is often impacted by judicial hesitancy to make a decision. Unjustifiable delay in court proceedings, particularly in deciding cases, has a significant impact on the parties and reflects adversely on the judicial system. Today it takes a minimum of 25 years if a case travels from the subordinate court to the higher courts.

Twenty five years means possibly new generations of litigants, enormous cost and frustration. This time lag for ultimate resolution speaks volumes of the inefficiencies and ineffectiveness of our judicial system and such 'justice' delivered after a span of 25 years would be bereft of its true meaning. Every day in each court 70-75 cases are listed in a district court, where the effective hours of working are just 6 hours. The Judge has to provide hearing, conduct examination of witnesses, listen to arguments, pen down arguments and rulings, dictate orders and do other miscellaneous works.

With the listing of about 70-75 cases listed before him each day, the lawyers well realise that majority of the cases are only meant to be adjourned by the judge without any significant movement. This is happening every day in each court across the country throughout the year.

This implies that the judicial system has adapted itself to system of Adjournments. Similar is the scheme of several High Courts, wherein the lists are not completed and the matters get automatically delisted. It is required that an improved system be developed to efficiently manage the judicial time.

No precious time of the Court should be wasted on routine adjournments, which should be limited and made in advance to enable the lawyers of the final list to go thorough and prepare their cases as they know that their matter would be heard with certainty. This type of judicial time management would certainly achieve the desired results.

Another important measure could be to appoint a full-time judicial administration cadre which would be ancillary to the work of judges and is carried out by dedicated and specialised personnel to help judges efficiently perform their judicial duties. This trained cadre will provide support to the judiciary through case management, assistance with budgeting, handling administrative tasks, and ensuring maintenance of court infrastructure thus enabling the judiciary to focus on the dispensation of justice. They would also be instrumental in harnessing technology in the better delivery of justice.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]