The role of the Judiciary in pendency problem

Context:

The Pendency problem of the Indian Judiciary

Introduction:

• There are around 59,000 case pending in the Supreme Court(SC), over four million in high courts (HC) and a mind-boggling 25 million in subordinate courts.
• As of March 2016 Supreme Court contributed almost 60,000 cases to blocklog/pendency India has just 13 judges per million of its population. While most developed countries have 50 and some even more than 100.

Reasons for pendency of cases:

• Corruption: There is huge corruption in appointment especially at lower judiciary.
• Lack of transparency: there is lack of transparency and objective appointment process.
• Culture of litigation and lack of penetration of alternative dispute redressal mechanism such as arbitration, mediation etc.
• Frequent transfer of judges: Huge transfer of judges takes the interest out of them to hear the cases that their successor may give judgment to, after the transfer.
• Poor dispute resolution mechanism.
• Filing of the frequent government litigation keep the courts busy instead of serving justice to the people speedily.
• The special leave petition (SLP) which the Constituent Assembly hoped would be used sparingly, but which now dwarfs the work of the Supreme Court.
• Increasing number of state and central legislations.
• Appeals against orders of quasi-judicial forums going to high courts
• Frequent adjournments and indiscriminate use of writ jurisdiction.
• Expensive and delayed justice:Judicial proceedings are prohibitively expensive, confusing for commoners and delay in justice delivery has denied gainful opportunities for many.
• Lack of expertise: Judiciary lacks expertise in dealing with new age problems like Corp Tax, Cyber laws, International treaties, Climate change and its conservative attitude is exploited and corrupt go scot free.
• Proliferation through SLPs: A lot of cases are entertained under article 136, which would otherwise not fall in the criminal/appellate/advisory jurisdictions.
• Corruption is also an major issue in judicial system as it is any other government department especially in lower courts increasing transparency and accountability corruption can be bought down.
• Absence of separate Commercial Courts to adjudicate on disputes of civil nature resulting in large number of pending civil suits related to various business and services related disputes in the high courts.

Implications:

• Right to justice, which is a fundamental right, would stand denied to litigants due to the unduly long delay in the disposal of cases
• Due to the backlog, most of India’s prison populations are detainees awaiting trial.
• Courts in Mumbai, India’s financial hub are clogged with decade-old land disputes, hindering the city’s industrial development
• The pursuit of justice, ordinarily a costly endeavour, has only been made more expensive by chronic delays.
• As a result, India’s legal system has increasingly become the preserve of the country’s wealthy and well connected
• This exacerbates the discrimination already faced by India’s minority and low-caste groups.
• There are hundreds of thousands of innocent poor people in Indian jails and the cases against them constitute the backlog for the courts
• Corruption too, is endemic. People would rather bribe a police officer than go through the lengthy hassle of a trial.
• the impunity that criminals may enjoy because of how slowly the legal system operates

Steps taken to reduce pendency of cases:

• The Supreme Court in Salem Advocates Bar Association versus Union of India in 2005, said the issue being amendments to the Code of Civil Procedure and for this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice.
• It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Dispute Resolution.

Case Management policy:

• The case management policy can yield remarkable results in achieving more disposal of the cases.
• Under this, the court sets a timetable for the case and the judge actively monitors progress.
• This marks a fundamental shift in the management of cases—the responsibility for which moves from the litigants and their lawyers to the court.
• The Committee on survey of the progress made in other countries has come to a conclusion that the case management system has yielded exceedingly.
• Is mandate is for the Judge or an officer of the court to set a time-table and monitor a case from its initiation to its disposal.
• The Committee on survey of the progress made in other countries has come to a conclusion that the case management system has yielded exceedingly good results.
• Model Case Flow Management Rules have been separately dealt with for trial courts and first appellate subordinate courts and for High Courts.
• These draft Rules extensively deal with the various stages of the litigation.
• The High Courts can examine these Rules, discuss the matter and consider the question of adopting or making case law management and model rules with or without modification, so that a step forward is taken to provide to the litigating public a fair, speedy and inexpensive justice.”
• Based on the nature of dispute, the quantum of evidence to be recorded and the time likely to be taken for the completion of suit, the suits shall be channeled into different tracks.
• Track I may include suits for maintenance, divorce and child custody and visitation rights, grant of letters of administration and succession certificate and simple suits for rent and for eviction.
• Track 2 may consist of money suits and suits based solely on negotiable instruments.
• Track 3 may include suits concerning partition and like property disputes, trademarks, copyrights and other intellectual property matters.
• Track 4 may relate to other matters.
• All efforts shall be taken to complete the suits in track 1 within a period of 9 months, track 2 within 12 months and suits in track 3 and 4 within 24 months.”
• There would have to be separate Case flow management rules for high courts, civil cases in subordinate courts and criminal cases in subordinate courts.
• There are many states for which only civil CFM rules have been passed for subordinate courts.

Other measures taken:

• Mega Lok Adalats were conducted to reduce pendency cases.
• Adoption of fast track courts to expeditiously reduce the pending cases in district and subordinate courts.
• Mobile courts: First mobile court was inaugurated in Haryana for easy reach, but was not continued in full swing.
• NJAC: Much expected NJAC to expedite appointments was stuck down the Supreme court citing breach of independence of judiciary.
• Memorandum of Procedure (MoP): When NJAC was stuck down, the Supreme court proposed MoP. But it failed over the clarify the pro

Measures suggested by the Law Commission to deal with the problem of pendency:

• The Law Commission of India in its 230th report has also offered a long list of measures to deal with the pendency of cases. These include:
• providing strict guidelines for the grant of adjournments
• curtailing vacation time in the higher judiciary
• reducing the time for oral arguments unless the case involves a complicated question of law
• and framing clear and decisive judgments to avoid further litigation.

Example of High Court of Haryana and Punjab:

• Almost a decade ago, it set up a case management system—i.e. a mechanism to monitor every case from filing to disposal.
• It also began to categorize writ petitions based on their urgency.
• In addition, it set annual targets and action plans for judicial officers to dispose of old cases, and began a quarterly performance review to ensure that cases were not disposed of with undue haste.
• All these measures ushered in a degree of transparency and accountability in the system, the results of which are now apparent.

Pleasant surprise:

• The lower courts in Kerala, Punjab, Himachal Pradesh, Haryana, and Chandigarh have disposed of almost all cases that had been pending for a decade
• This is impressive given that the national pendency count is pegged at around 2.3 million cases.
• Delhi, Assam, Andhra Pradesh, Madhya Pradesh, and Karnataka are also close to clearing out long-pending cases.

Way ahead:

• Increase the number of judges, as per the international standards.
• Increase in the number of judges.
• Enhancing the productivity of existing court infrastructure and human resources.
• Productivity enhancement for handling cases more efficiently, that is, case flow management (CFM).
• Creation of judicial infrastructure, all States and Union territories should have high courts.
• Mechanism of accountability of judges.
• Well-trained and specialized should be placed mainly in subordinate and district court, from where huge appeals pops up. All India Judicial commission could be a solution
• Increase and strengthen alternative dispute mechanisms like fast track courts, mobile courts, commercial courts
• More importantly tussle over MoP should be done away by improving the channels of communication between executive and legislature
• Usage of IT tools should be promoted, well integrated database across the judicial system reduces the time involved
• Fair promotion of judges and scrapping the collegiums system.
• Better case management and procedural reforms can go a long way in reducing case pendency.
• Increase the number of national law schools to get even more lawyers into the system.

Conclusion:

Addressing the backlog is necessary to maintain India’s “constitutional democracy”, to adhere to “rule of law” and to “guarantee order and stability in society”. The country’s progress depends on strong judicial system which can provide quick justice because justice delayed is justice denied.