Pendency Of Cases / Speedy Justice
By Justice B N Aggarwal , Judge Supreme Court of India (Retd)
We had the fortune of hearing illuminating talks by the learned speakers of this evening before this August gathering. In the Lecture Series organised by the Supreme Court Bar Association in 2004, I had spoken on “Measures for Betterment of Judiciary and Controlling Docket Explosion” and it is almost three years since then; questions on the credibility of judiciary to deal with the mounting arrears of cases, delay in disposal and high cost of obtaining justice are still being raised, but to blame the judiciary alone for it is wrong as other limbs of the State need also play their role in solving this problem. But those who say that justice delivery system is on the verge of collapse make such statements by looking at the overflowing dockets only without peeping into the real scenario. These are the people who need to be told that influx of cases is also a sign of faith reposed by the people in the administration of justice and it is that faith which, inter alia, is one of the reasons for docket explosion. It is a matter of satisfaction that the public at large continues to hold our judicial institutions by and large in high esteem despite their shortcomings and handicaps. There is no gainsaying the fact that justice delivery system in our country suffers from deficiencies requiring immediate steps to improve its performance so as to render prompt and inexpensive service to the litigants. It is because of the concern voiced by different sections of the society that I have chosen to speak on the topic “Pendency of Cases and Speedy Justice”.
Our Constitution provides for an independent and efficient justice delivery system. 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. On account of such deficiencies in the system, huge arrears of cases have piled up in courts at all levels, and ways and means are required to be found out urgently, to bring them to a manageable limit, so as to sustain the faith of common man.
Judicial institutions in most of the developing countries in the world are currently confronted with serious crisis, mainly on account of delay in the resolution of the disputes and we are no exception. The concerns being voiced are with regard to huge pendency of cases in the High Courts and courts subordinate thereto. A look at the statistics of institution and disposal in 1999 and 2006 in the High Courts would show that the total institution has gone up from 11,22,430 to 15,89,979 and disposal from 9,80,474 to 14,50,602. Similarly, in the subordinate courts also the institution has gone up from 1,27,31,275 to 1,56,42,129 and disposal from 1,23,94,760 to 1,58,42,438.
These figures of institution and disposal go to show that while the disposal has increased to a considerable extent, the overall institution continues to exceed disposal and that the pendency has been increasing not due to the decline in the rate of disposal but because of rapid increase in the institution. Though the pendency of cases is always highlighted, what is never spoken of are the figures of annual filing and disposal. The increase in the institution is partly because of increase in the number of cases under Section 138 of the Negotiable Instruments Act and Section 498 A of the Penal Code and enactment of new legislations in the recent past like the Protection of Women Against Domestic Violence Act, 2005, the Right to Information Act, etc. besides inaction on the part of the Union Government, the Governments of various States and Union Territories and their instrumentalities in observing rules apart from maladministration. When I joined the Bench of the Patna High Court in 1986, without fear of being contradicted, I venture to say 60% of the cases which are filed today in courts against the various Governments and their instrumentalities were not being filed then and the citizens used to get what they deserved in ordinary course without any loss of time. While addressing the Conference of Chief Ministers of States and Chief Justices of the High Courts in 2004, even Hon’ble Dr. Manmohan Singh, the Prime Minister of India, expressed concern about the backlog in courts and admitted that one way of reducing it is to reduce the number of cases that come to the courts and referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed.
It is a matter of regret that in spite of so much concern shown by the Prime Minister, the bureaucracy has not responded and no steps whatsoever have been taken in this regard.
In order to reduce the pending litigation between various Governments and the helpless citizens in the High Courts, tribunals, other fora and subordinate courts, there is an urgent need to set up an internal mechanism at the Central, State and district levels in the government offices by the respective heads for resolving the disputes and for making bona fide attempts to resolve the same with an open mind. I have no doubt that such efforts would never go in vain and disputes in vast majority of cases are bound to be resolved whereby not only public time, energy and money would be substantially saved but people’s faith in all the three limbs of the State would be resuscitated which is the need of the day. Similar exercise should be made by instrumentalities of the State at all levels in relation to pending cases.
All Governments and their instrumentalities should ensure that genuine cases are resolved at pre-litigation stage itself at their level so that poor and helpless citizens may not be compelled to unnecessarily knock the door of courts and in this manner sizeable number of cases by or against Governments and their instrumentalities can be reduced. Only those cases may be taken to courts where it is not possible to resolve the dispute because of legal intricacies.
The tendency amongst the ministerial staff of all the three limbs of the State viz. the legislature, executive and judiciary to harass the citizens for extraneous reasons is galloping fast, which can be minimised, if not eradicated, by strong, independent and tactful administrators at all levels. I feel time has come that those at the helm of affairs in these three limbs of the State should bestow their thoughts to find out suitable measures to curb such a tendency for the well-being of common man.
There is one more area which needs immediate attention of the executive, about which it has been reminded in the past as well and i.e. vacancies of judges both in the High Courts and courts subordinate thereto, increase in strength of judges in various courts, keeping in mind the pendency of cases as well as the trend of institution of fresh cases and not the rate of disposal, providing adequate infrastructure to the existing judges by renovating the old dilapidated court buildings and making more space available to the courts. The Law Commission, in its 120th report, submitted on 31-7-1987 recommended optimum figure of 107 judges per million by 2000, the ratio achieved by USA in the year 1981. It also recommended ratio of 50 judges per million of population, within a period of 5 years which was endorsed by the Standing Committee of Parliament headed by Shri Pranab Mukherjee, in its 85th report submitted in February 2002. The Supreme Court also directed increase in judges’ strength to 50 per million in a phased manner. But despite all this, the strength of judges has not been increased, that is why also the judiciary is facing difficulties in tackling the problem of mounting arrears. Let us hope that in near future the Central and the State Governments would make all possible efforts to address these problems.
Having regard to the large volume of cases in courts, I think it is high time that we should put at least some limit on the oral arguments to save court’s time. There may be some resistance to it in the beginning but soon counsel would realise its value as once this practice is put in place counsel would know when to expect his or her case in the cause-list, when the case above his or her case is likely to finish and would come fully prepared to argue his or her case within the time allotted. On this, I would like to take you back to the year 1985 when the then Chief Justice of India, Shri P.N. Bhagwati, speaking on the occasion of Law Day, said that there was a need to cut down the length of oral arguments and insisted on written submissions. 22 years have passed since then, but it is still a debatable issue. I think time has come for the Bench and the Bar to sit together, deliberate on this issue and come to an understanding so that the length of oral arguments is restricted to save public time.
I would now advert to some of the positive measures that have been taken in the past which have already started showing results and are significantly contributing in increasing disposal in subordinate as well as the High Courts and those which are still required to be taken for dispensation of speedy and affordable justice. The measures that have already been taken are: setting up of Fast Track Courts of Sessions Judges, introduction of shift system in subordinate courts, setting up of mobile courts, Lok Adalats, ADR system, insertion of Chapter XXI-A in the Code of Criminal Procedure about plea bargaining and setting up of e-committee, etc.
Fast Track Courts
On the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judges were sanctioned for disposal of old pending cases and the said scheme was to end on 31-3-2005. Out of 18,92,583 cases, 10,99,828 have been disposed of by these courts. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31-3-2010.
In view of the contribution made by the Fast Track Courts of Sessions Judges towards clearing of backlog, and number of huge pendency of cases triable by Magisterial Courts being 1,66,77,657 as on 31-12-2006, there is an urgent need to formulate a similar scheme for setting up of Fast Track Courts of Magistrates in each State and Union Territory.
Mobile courts are also being set up which would not only educate the rural folk about their rights and responsibilities and provide swift justice and create a feeling of law and judiciary being very close to them, but will also help declog the expanding docket of our overburdened courts.
Shift system in subordinate courts
The State of Gujarat has taken a lead in introducing shift system in subordinate courts w.e.f. 14-11-2006. 60 evening courts are already in place in different parts of the State. As per the figures made available, the number of cases that have been disposed of from 14-11-2006 to 31-3-2007 is 57,384, which is highly commendable. Introduction of shift system in courts would be far less burdensome to the exchequer as existing courts could be made to function in two shifts with the same infrastructure by utilising the services of retired judicial officers, reputed for their integrity and ability, who would be paid only the difference between the salaries and emoluments payable to serving officers of the same rank and their pension. It is, therefore, high time that shift system is introduced in subordinate courts all over the country as it would help reduce the backlog considerably. In my view, apart from regular court hours, shift system should be introduced; two hours in the morning from 8.00 a.m. to 10.00 a.m. and in the evening from 6.00 p.m. to 8.00 p.m. and these courts should be manned by retired judicial officers as far as they are available but, in case of their non-availability, on part-time basis the services of local lawyers, particularly, young promising ones should be availed of on payment of fixed remuneration—in the morning shift one batch and evening another. So far as ministerial staff and officers are concerned, we should avail the services of retired personnel for working in the morning and evening shifts. I find that 52 lakh cases relating to petty offences were pending where only fine could be awarded as punishment out of total pendency of cases viz. 2.49 crores as on 31-3-2007 throughout the country in District and subordinate courts. Such cases should be placed before these courts and the same can be decided with utmost expedition by a short order. By adopting such methodology the pendency would be reduced by 20%. If the shift system works well and if those courts require more cases we may entrust certain other types of cases to them out of 70 lakh police cases pending in Magisterial Courts. In this way young Bar would not only grow but may have sustaining power for continuing in the profession.
In order to achieve the objective enshrined in Article 39 A of the Constitution of India, the Legal Services Authorities Act, 1987 was enacted to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To achieve that objective, Lok Adalats are being held at various places in the country and a large number of cases are being disposed of with lesser costs. Mobile Lok Adalats are presently in place in different parts of the State of Bihar and on the lines of steps taken by the High Court of Patna of holding mobile Lok Adalats, the other High Courts need also work on the same lines so that speedy and affordable justice could be made available to the litigants at their doorsteps.
Alternative Dispute Resolution mechanisms
The philosophy of alternate dispute resolution system is well stated by Abraham Lincoln—
“Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time.”
Litigation through the courts and tribunals established by the State is one way of resolving the dispute which is an adversarial method of dispute resolution which leads to win-lose situation whereas in Alternative Disputes Resolution what is tried to be achieved is win-win situation for both the parties. There is nobody who is loser and both parties feel satisfied at the end of the day. The ADR mechanisms include arbitration, negotiation, mediation and conciliation. Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity. The person who occupies the position of a mediator or conciliator in the Mediation and Conciliation Centre has to be known for unique qualities such as skill, poise, tact, art of persuasion, human behaviour and psychology. The mediator should have impeccable integrity and ability to persuade and create conviction among the parties. Such centres have already started functioning in many High Courts and subordinate courts and training is also being imparted to the mediators and conciliators so that the desired objective is achieved. National Judicial Academy has also prepared a National Plan for Mediation which envisages systemising and institutionalising mediation, training of mediators, preparation of training materials, organising awareness programmes and setting up of Mediation Centres, in three phases, spread over a period of five years, for resolution of disputes through settlement. This will not only provide speedy and inexpensive justice and reduce litigation, but will also bring peace and harmony in the society.
Setting up of e-committee
From this very platform, just three years ago, I had suggested that one of the best ways of effectively achieving the betterment of the judicial components in the country was adoption of information technology-based systems in the judicial framework to make the judiciary more effective in providing speedy and timely justice to the litigants. Information technology was for the first time introduced in the Indian judiciary by Mr Justice G.C. Bharuka in the year 1991 in the Patna High Court when he was a baby Judge of a few months and there was some headway so long he remained in Patna, whereafter it remained standstill. After Mr Justice Bharuka was transferred to the Karnataka High Court it was a boon in disguise for the people of Karnataka where he had done extensive work for introduction of IT in Indian judiciary and was conferred a doctorate degree. His famous treatise “Rejuvenating Judicial System through E-Governance & Attitudinal Change” was published in the year 2003. Appreciating the outstanding work done by Dr. Justice Bharuka in the field of IT, the Union Government constituted an e-committee under his chairmanship.
Keeping in view importance of the project, in June 2006, the Union Cabinet declared the project to be one of the Mission Mode Projects under the National E-Governance Plan and in February 2007 accorded sanction to the budgetary requirements for its implementation. For the first phase funds to the tune of Rs 441.80 crores have been approved. The e-courts project is to be implemented in three phases over a period of five years and the first phase, which extends over a period of two years, has already commenced by providing laptops to all the judicial officers throughout the country and three months’ training would be provided to each and every judicial officer. In the first phase, the goals that are sought to be achieved, inter alia, are; capacity building of the judges—primarily, the subordinate court Judges for delivery of speedy and quality justice, availability of ICT modules for assessing work performances and case-flow management of all courts in the country particularly the District and subordinate courts, online accessibility of orders, judgments and case related data, instant availability of status of cases, judgments and orders of all courts through internet, kiosks and judicial service centres, facility for e-filing in the Supreme Court and High Courts. In the second phase, the steps intended to be adopted are facilities of video-conferencing at all court complexes and e-filing in all the District and subordinate courts. In the third phase, online information between the courts, prosecuting and investigating agencies, prisons, land records and registration offices and biometrics and scientific tools to help in identifying habitual criminals, professional witnesses and litigants and in resolution of complex factual disputes would be available.
I am certain that once all the three phases of the e-committee are complete by the rich knowledge and experience of Dr. Justice Bharuka in the field of information technology, the goals sought to be achieved by setting up the e-committee would be fulfilled, the judicial productivity would be enhanced—both qualitatively and quantitatively—so as to make the justice delivery system affordable, accessible, cost effective, transparent and accountable. It is hoped that the Supreme Court would give a helping hand to the e-committee. One thing must be remembered by all concerned that people of India would not tolerate attempt by anybody to tinker with the working of e-committee.
Setting up of Gram Nyayalayas
It is understood that the Ministry of Law and Justice is drawing a Gram Nyayalayas Bill with an objective to secure justice, both civil and criminal, at the grass-root level to the citizens, which would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedures, use of local language and mobile courts wherever necessary. If established, I hope such Gram Nyayalayas would genuinely make justice accessible and affordable to the common man at their door.
With the insertion of new Chapter XXI-A in the Code of Criminal Procedure by Act 2 of 2006, the concept of “Plea Bargaining” became a reality and part of our criminal jurisprudence. The practice of plea bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. 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. One of the merits of this system is that it helps the court to manage its load of work and hence it would result in reduction of backlog of cases. Therefore, I suggest that, while issuing summons to an accused, he may be informed of the provisions of plea bargaining contained in Chapter XXI-A of the Code of Criminal Procedure, 1973. If more and more accused come forward and bargain the plea, the reform could reduce the enormous backlog of cases in our courts.
Plea bargaining apart, if the list of compoundable offences is widened and more offences are included therein and made compoundable, it too will help in making a dent in the mounting arrears and saving time of the courts.
There are some more measures which, if taken, would be helpful in dispensation of speedy and qualitative justice which I propose to touch now.
National Law Schools were set up in India with the objective, inter alia, to advance and disseminate learning and knowledge of law and legal processes and their role in national development, to develop in the student and research scholar a sense of responsibility to serve society in the field of law by developing skills in regard to advocacy, legal services, legislations, law reforms and the like and to make law and legal processes efficient instruments of social development. Is the objective that was sought to be achieved while setting up these schools being achieved? Are the products of these schools contributing in the service of the society and playing any role in national development? My answer is emphatically in the negative as according to the statistics available 85% fresh law graduates of these law schools and other reputed institutions are joining the corporate world and only 15% are joining legal profession. If the newcomers give preference to profession than corporate sector, it would, undoubtedly, improve the Bar. A strong Bar is a sine qua non for an independent and strong judiciary which plays an important role in the democratic set-up. We all know that legal profession is the bedrock of the judicial system and legal skills are at the heart of the profession. Skills can, to some extent, be taught in the college. But skills have to be acquired by experience and learning from the experienced members of the Bar. It requires greater patience for young lawyers to observe the skills of expert lawyers and emulate and practise them. After their court work how may young lawyers today are prepared to sit in a court hall and observe the way any senior lawyer or a good lawyer is arguing or the way a judge is proceeding with the case? The vocation of lawyers is a profession and not business where earning is the motto. The motto must be to earn by serving and not to serve by earning. Having chosen law as a professional career, if in the beginning the entrant does not run after money, the day is not far off when money would follow him.
One of the reasons behind their decision to prefer the corporate sector than the legal profession may be to repay the hefty loan that they might have taken to pay the fee. Though it appears to be a genuine reason, but how to achieve the objective then?
I have one suggestion to make and that is; that we can take ten toppers from twenty law schools and other equally reputed law colleges/universities every year and ensure each one of them Rs 30,000 per month for practising in metros and Rs 20,000 in cities where there is High Court seat for a period of three years which may help the objectives of enriching the Bar. Initially, this scheme may be started for a period of three years and if it works well, it may be extended further. The total fund that would be required for a period of three years would be Rs 43.20 crores, which, keeping in mind the objective behind it, does not appear to be a very big amount especially when the contributing agencies should be many viz. the Central Government, Bar Council of India, State Bar Councils, NALSA and counsel of eminence having lucrative practice. In this way, the funds required for the first year would be Rs 7.20 crores and Rs 14.40 crores and Rs 21.60 crores for the second and third years respectively. A nodal agency should be created either at the level of the Supreme Court or the Bar Council of India or the Supreme Court Bar Association. I think this is high time that on this issue the Bench, Bar, NALSA, Bar Councils and Law Ministry should dilate upon and work out the modalities.
Regarding appointment of judges, both at the entry level and in the High Courts, in view of the falling values in public life and to sustain confidence of the public, I think a time has come that we should look for persons having outstanding merit and transparent integrity, to adorn the Bench. In my view, firstly, persons of outstanding merit and transparent integrity should be picked up and if not available, those who are very good in merit having transparent integrity should be considered and in case persons in the aforesaid categories are not available, then those, who are good in merit and are of high character may be considered. While considering persons for appointment in the High Courts, members of the Supreme Court Bar, who are outstanding in merit and having transparent integrity should be persuaded for their own High Court and such persons should be picked up at the age of 40+ lest they may not accept judgeship by the time they attain the age of 45. While principles of ethics and morality are concerned, they have to be told and taught to the entrants in judicial service at the threshold and then reaffirmed periodically in such a way that they are imbibed into the personality of the holder of judicial office. It is needless to say that in the matter of appointment to any public office, much less a judicial one, the sole consideration should be interest of the institution of which we are the trustees.
The process for appointment in district and subordinate judiciary should commence sufficiently in advance so that immediately on retirement the next incumbent takes over.
I am certain that with the measures already taken, which measures are already showing positive results, and the measures suggested today by me and the other learned speakers, the mounting arrears would be reduced considerably. But over and above the measures suggested, what I feel is that there should be aptitudinal change in the Bar and the Bench. Judges should develop knack of deciding cases in shortest possible time and the members of the Bar should be able to place their points without loss of public time. After all the Bar and the Bench both owe a duty to the litigant who has come to seek justice.