For long before and ever since Sunny Deol thundered away the iconic ‘taareekh pe taareekh’ in Damini (1993), judicial delay has been a bone permanently stuck in the throat of Indian legal system apart from being a ready stick for anybody and everybody to beat it with by parading judicial delays as evidence of how completely ineffective and inefficient law enforcement in India is. The real picture might not be quite as grim and hopeless as it is generally made out to be, but it is still bleak enough to call for more than a few urgent measures, some of which have already been taken but are yet to make a noticeable difference, some are in the pipeline, and a lot many are on the discussion table. And then there are those that have failed, more or less, despite having started right. It is high time we took a long, hard look at the problem. In fact, it has been high time for a long, long time now.
We have over 22 million cases pending before the courts across the country including the High Courts and the Supreme Court of India, which makes judicial delays one of the most urgent problems India is facing today, and there can be no quick fixes for a problem quite as staggering. A 2016 report titled State of Indian Judiciary published by the Bengaluru-based research organization Daksh, looked into the situation by analyzing a total of 3,514,486 cases pending before 21 High Court and 475 subordinate courts with 1,795,036 cases pending before the High Courts and 1,719,450 before the subordinate courts across India.
The Daksh report notes that Allahabad High Court has the highest average pendency at 3 years and 9 months and the High Court of Sikkim has the lowest at 10 months. The report further notes that at least 50 per cent of the total number of cases pending have been pending for longer than the average pendency, which is worrisome, to put it mildly.
The report also notes the overload of work on the judges, who hear anywhere between 20 and 150 cases everyday averaging 70 hearings, and for that reason they are unable to give adequate time to the cases, not to mention the stress the judges go through each day. Patna High Court tops the list with a judge hearing 149 cases on an average giving an average of 2 minutes of hearing to each case. Tripura High Court is at the bottom with each judge hearing some 20 cases with each case getting an average 15-minute hearing.
Another factor closely related to the speedy disposal of cases and also the lack of it is the frequency of hearings for each case, and in that respect the High Court of Calcutta topped the list with the most frequent hearings with an average of 16 days between two consecutive hearings of a case whereas the High Court of Delhi settled at the bottom with 80 days.
The Report mentions the extreme difficulties faced by the researchers in accessing the relevant data for analysis, and for that reason the numbers might not be absolutely accurate in all respects, but they are still very dependable to base broad conclusions upon. Furthermore, the Report gives statistical support to the problems that are out there for anybody to see, and on that front the Report springs no surprises.
At the very center of the maladies that ail our justice delivery system making it tardy and inefficient sits the problem of judicial vacancies and, of course, poor infrastructure.
The 120th Report submitted by the Law Commission of India way back in July 31, 1987 notes that India has as few as 10.5 judges per million population. In comparison, Australia has an average of 41.6 judges per million population, Canada, roughly 75.2 judges per million population, the UK 50.9 judges per million population, and the United States of America has some 107 Judges per million population. The Report takes a realistic view and says that while it is difficult to envisage a five-fold increase in the strength of judges to the recommended 50 per million population from 10.5 in a short period of time, it can be done over a period of five years. However, the Report warns against taking any longer than 10 years. It has been 30 years since the Report was tabled, and India still has a dismal figure of 18 judges per million population according to the data made public by the Ministry of Law and Justice.
The less than optimum strength of judges affects the justice delivery system in several debilitating ways. Since there are far fewer judges than required, the dates are badly spaced out and the disposal takes longer, which is also because by the time a judge has sufficient understanding of a case in hand after a few hearings — which might take over a year in most cases — it’s time for the routine transfer and the new judge who takes over takes his time with the case, which results in further delay, and if the new judge tries to do too much too swiftly, the quality of his judgments might take a hit, which is another unacceptable position.
Often enough lawyers are blamed for contributing to the delays, which might have some truth to it because in most of the cases at least one party is interested in delaying the adjudication of the case, and the lawyer representing such a party would do his bit to delay the matter, but that has a very limited impact on the speed at which the case progresses because the advocates are not in charge of the case; the judges are. Therefore, the contribution of lawyers to judicial delays, while not non-existent, is almost negligible compared to the other far more significant factors.
The Legislature took due note of the judicial delays and certain legislative measures were undertaken to deal with the problem, the most significant of which were the 1999 and 2002 amendments, which sought to curb delays by imposing time frames on crucial procedural steps.
The 1999 amendment introduced an upper limit of three to the number of adjournments that could be granted during a civil trial to a party by amending Order XVII of the CPC. However, the Supreme Court of India did not find the seemingly absolute restriction in consonance with the spirit of justice and in the Salem Advocate Bar Association case [(2005 (6) SCC 344)] interpreted the restriction to be only directory and not mandatory thereby restoring the power and freedom of the trial court to grant any number of adjournments in the interest of justice. The Supreme Court said:
Further, to save proviso to Order XVII Rule 1 from the vice of Article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extra- ordinary circumstances. It cannot be in routine. While considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.
Clearly, the intention of the Supreme Court is to untie the hands of the trial courts so as to meet the ends of justice, but the judgment is also clear on the point that the intention of the Legislature to prevent needless adjournments must not be ignored, and the adjournments must be granted only in cases where a compelling reason for the same is disclosed by the party seeking the adjournment. However, the directive that the adjournments “cannot be in routine” is regularly ignored by the trial courts across the country. Indeed, procedure has to be the handmaiden of justice, but when procedural niceties start causing inordinate delays, the procedure becomes the agent of injustice, which is what the trial courts have, apparently, failed to bear in mind.
The 2002 Amendment to the CPC, on the other hand, imposed a maximum time frame of 30 days, extendable to 90 days for the filing of the Written Statement. The Amendment aims at defeating the tendency of the parties and their advocates to take long adjournments for filing the Written Statement. The spirit of the Amendment was duly noted by the Supreme Court in the abovementioned Salem Advocate Bar Association v. Union of India, [(2005 (6) SCC 344)]. However, the Supreme Court held the time bar as directory and not mandatory. The Supreme Court interpreted Order VIII Rule 1 of the CPC as amended by the 2002 Amendment in light of the amended Order VIII Rule 10, and ruled:
In the context of the provision, despite use of the word ‘shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to ‘make such order in relation to the suit as it thinks fit’. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.
Again, while preserving the discretion of the courts, the Supreme Court has not failed to note the well-meaning legislative intent behind the Amendment, which is why the apex court made it plain that the extension of time can be granted only in “exceptionally hard cases” in view of the upper limit fixed by the Legislature. However, the trial courts have largely ignored the rider and have gone back to granting extensions for filing Written Statements routinely like earlier, thus nullifying the possibility of the intended change. But this is not a very complicated issue because with the law in place and with the Supreme Court endorsing and emphasizing the spirit of both the amendments, it’s merely a problem of implementation, which wouldn’t really be hard to solve once the judicial officers take upon themselves to stick to the law, which is beginning to happen.
Recently, the High Court of Delhi, vide Circular No. 3174/DHC/Gaz./G-7/Misc./2017 dated July 03, 2017, directed the subordinate courts under its jurisdiction to go by the three adjournment rule laid down by the 1999 Amendment unless the circumstances necessitate making an exception. “All efforts be made to ensure that each and every case is being heard effectively and disposed of as early as possible albeit within realistic timelines,” the Circular directs, and further adds, “Also, the rule of three adjournments and imposition of compensatory costs is to be followed strictly.”
The Circular also seeks to address the issue of the delay in the physical service of processes by directing the trial courts hearing civil matters to encourage the service of process electronically by having recourse to Chapter 4 Rule 12 of the Delhi Courts Service of Processes by Courier, Fax and Electronic Mail Service (Civil Proceedings) Rules, 2010. Every lawyer practicing on the civil side knows that the first difficulty he or she has to deal with is an effective service of process on the opposite party, which may take months and sometimes years, mainly on account of the deliberate avoidance on part of the opposite party, for avoiding service is looked upon as a legitimate legal tool to delay the adjudication, which, in many cases, works in favour of the defendant/respondent. The device of service of processes by electronic means removes the human factor involved and makes it possible for the processes to be served almost instantly, which alone can shave months, if not years, off the total time taken in the disposal of civil matters, which are notorious for being extremely time consuming.
If the other High Courts replicate the initiative of the Delhi High Court, which is quite likely, the problem of judicial delays could start being less difficult to solve at least on the judicial front. In the recent times, the Supreme Court has directed its attention to the problem of judicial delays more frequently than ever before, and, as noted above, the High Courts have started gearing up to take the challenge head on, which is good news.
Although the Legislature as well as the Judiciary have started dealing with the problem in earnest, their efforts can only have a limited effect unless the Executive joins in, and it is, in fact, the Executive that has to do most of the work if judicial delays have to be effectively curbed because the source of the problem has been the indifference of the Executive towards the sorry plight. From the appointment of judges to providing the infrastructural support, including the support staff, it is the constitutional duty of the Executive to extend support to the Judiciary, which the governments have regularly neglected.
Lack of adequate infrastructure contributes a great deal to judicial delays and makes it extremely difficult for the judicial officers at the level of the lower courts to function. But the governments, both at the Union and State levels, don’t seem to have judicial efficiency high on their priority list, which could be because judicial efficiency solves no problems for the politicians. On the contrary, they benefit hugely from judicial delays. A large number of politicians have been from the shady side of the society, and judicial inefficiency in punishing the wrongdoers has played to the advantage of the criminal politicians and the politicians with criminal associates, and though the situation has started changing — thanks, in large part, to the judicial pronouncements aimed at weeding out criminal elements from the political spectrum — things are still far from satisfactory in this regard. As a matter of fact, rule of law does not quite serve the ends of Indian politicians, for it prevents them from bending the rules to serve their purpose, which might explain, at least in part, the lack of political will to equip the Judiciary better to deliver substantive justice.
However, with the union budget allocating Rs 1,744.13 crore for the administration of justice including justice delivery, legal reforms, development of infrastructural facilities and autonomous bodies associated with legal matters and education, things seem to be changing on that front too although at a much slower pace than required. The budgetary allocation of Rs 1,744.13 crore is higher than the amount set aside for the purpose in the past years, but it is still far less than one per cent of the total budget of Rs 21.47 lakh crore despite the fact that the issue of judicial delays for lack of infrastructure and judicial vacancies has been taken up with the government at the highest level by none other than the incumbent Chief Justices of India on more than one occasion.
On April 24, 2016, Addressing the Annual Conference of Chief Justices and Chief Ministers, which was attended by Prime Minister Mr. Narendra Damodardas Modi, the then Chief Justice of India (CJI), Mr. Justice T.S. Thakur, pointed out the issue of judicial vacancies that needed urgent redress. In May 2014, talking to the Hindustan Times, the then CJI, Mr. Justice RM Lodha, had said, “Governments think the judiciary is a non-productive organ of the state. They hardly spend on the judiciary…less than 0.5% of the budget is spent on the judiciary. Let’s hope the new government gives more attention to the judiciary… Barely 0.11% of the 2014-15 central budget of Rs 17.60 lakh crore is proposed to be spent on law and justice.”
On October 28, 2016, a Bench of the Supreme Court of India, headed by Chief Justice T.S. Thakur, got so frustrated with government’s dragging its feet on judicial appointments that Chief Justice Thakur was forced to come down heavily on the government. “You cannot bring the entire institution [the Judiciary] to a grinding halt. If there is a problem with the name of a person, please send it back and ask us to reconsider,” the Bench told Attorney General Mukul Rohatgi. The Bench threatened to pass appropriate orders on the judicial side, if things went on the same way. “We don’t want to clash with you. But if you go on like this, we will form a five-judge Bench and say you are scuttling appointments,” the Bench remarked. Since then the situation has improved to some extent with the central government moving more quickly with judicial appointments.
However, as per the details available on the website of the Department of Justice, Ministry of Law and Justice (last accessed: July 25, 2017), the High Courts are functioning with 665 judges against the sanctioned strength of 1079 with 414 judges short while the Supreme Court is short of 4 judges with 27 judges working against the sanctioned strength of 32. So, the High Courts are managing with 62% of the requisite number and the Supreme Court with 87.5% despite the strident approach of a very assertive Supreme Court in addressing the issue. Quite clearly, a lot more remains to be done on all fronts, and a lot sooner.
Originally published as Cover Story in Lawyers Update [August 2017, Vol. XXIII, Part 8]
16 Jul 2018
16 Jul 2018