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In the Indian democratic
society, for protecting and enhancing the rights of the people, judiciary plays
an important role besides legislative and executive body. For the enforcement of
rights of citizens and remedies thereto in case of violation thereof, Courts
have been established at all the level in the country. These courts by
interpreting the law, enhances justice to the individual and society at large.
The growth and development of society is therefore based on these judicial
pronouncement made by the courts. With the rapid growth in the industrial,
technological field and population, workloads have been increased on the
judicial working system. With the increase of workload, the efficiency of the
courts is hampered badly. According to 2002 records, total 2.4 crore cases are
pending out of which 2,03,25,756 cases are pending in District and Sub-ordinate
courts, 35,57,637 in High Courts and 21,995 in Supreme Court.
With the increase in rate of
pending cases and declination of pronouncement of justice, society now considers
Justice delayed is Justice denied. The judiciary day by day, due to its delayed
process loosing faith of people to whom it is obliged to provide justice.
Supreme court by its decision confirmed that the speedy trial is deemed as
fundamental right included in Article 21 of the Constitution of India. Inspite
of this, the condition is static and unchanged. Many Committees and Boards set
up by the governments from time to time had come up with the approach of
reformations and solutions of the rendering justice effectively. However, the
implementation of these recommendations have not been considered and yet to be
put in practice.
Factors behind the arrear
of pending Cases
There is no one factor which solely responsible for these arrears of cases. For
the reformation in the present practicing judicial system, there are number of
elements which must be considered:
Judges-Population Ratio &
Vacancies of Judges
Presently, for dealing with the pending cases there must be required number of
judges present to entertain the matter laid before them. But in Indian judicial
system there is number of vacancies existing which ultimately affects the
efficiency of rendering justice.
Former Chief Justice of
India, S.P. Bharucha on this account said that "It is only when we have far more
trial courts functioning that we shall be able to dispose of more cases than are
being filed and thus cut down on arrears." In 2002, the total strength of judges
in High Courts was 669 out of which 163 vacancies were not filled , which comes
out to be 25% of the total strength. Like wise in Supreme Court out of total
strength of 26 there were 2 vacancies. The condition at present is not better
than the mentioned record data. It had also suggested by 127th Law Commission
Report, 1988 that the judge-population ratio should be increased from 10.5
judges per million population (at that time) to 50 judges per million population
within period of 5 year. It recommended that by the year 2000 the ratio should
be increased at least 107 judges per million population. At present in India,
the ratio is 12 or 13 judges per million population where as 12 years before it
was about 41 judges in Australia, 75 in Canada, 51 in U.K. and 107 in United
States. Due to this low judge-population ratio, the courts are lacking requisite
strength of judges to decide the cases. This judge-population ratio has been
used for providing quantity of judges required to deal the cases. The government
had neither taken any interest nor any steps to implement the said
recommendation. In view of the government, the raising strength of judges must
be set on the basis of the pendency of cases and average rate of disposal, not
simply on basis of population, which is absurd and without any principle of
foresightedness.
Filling the vacant seats of
judges is not the sole responsibility of the government but judiciary plays
crutial role in the appointment of judges. Supreme Court interpreted Article 124
and 217 of the Constitution of India, by its judgment in Advocates-on-Record
Association vs. Union of India and others held that a proposal for the
appointment of a Judge in the Supreme Court must be initiated by the Chief
Justice of India, and in the case of a High Court by its Chief Justice and for
the transfer of a Judge or the Chief Justice of a High Court to another High
Court, the proposal has to be initiated by the
CJI. Therefore, the judiciary is also responsible for not performing the duty of
proposing the name for appointing judges to the government, which in turn would
be sent to the President of India for appointments. Also according to the norms
the process of filling up a vacancy should start six months before the actual
date of retirement of a Judge. In
2002, there were 170 vacancies in High Courts,
out of which only on 64 vacancies the process of filling began. Further, there
was also delay in
filling up the 1500 vacancies in the sub-ordinate courts. Even today the
position is same regarding the process of filling up of judges in place of
retired judges.
Accountability of Judges
In India, judiciary is a separate and independent system. Legislature and
Executive are not allowed by the Constitution to interfere in the functioning of
judiciary. The courts on the other hand check the acts of these two bodies. The
functioning of judiciary is independent but it doesn't mean that it is not
accountable to anyone. In democracy the power lies with the people. The
judiciary must concern with this fact during their functioning. Considering the
judicial system independent and unaccountable by the courts, generally it gives
leisure and comfort to the judges that ultimately lead to delay in deciding the
matters. High Courts has the power of control over Subordinate Courts under
Article 235 of Constitution of India. Supreme Court has no such power over High
Courts. The Chief Justice of High Courts / India has no power to control or make
accountable other judges of the court.
Woolf Report of 1996,
emphasized to make judiciary accountable for their functioning by generating
accurate judicial statistics, revised on daily basis. It was observed by the
report committee that statistic report pertaining to the Judges functioning and
flow of such information ultimately make judges more accountable to the
judiciary and also it was
suggested that it is more important and useful mean to tackle these arrears than
increasing financial and human resources. But these suggestions remain on the
paper and have never been put in practice.
The Annual Reports of
Ministry of Law, Justice & Company affair only laid data about the judicial
arrears in their reports and not about the nature of cases pending. So it is not
fruitful to deal with the pendency of cases. There must be some judicial
database that includes the details about the specific laws which deals with
subject matter, sections, legal nature of disputes, time taken to decide the
case, interim relief in operation and number of adjournments etc.
Provision of Adjournments
The main problem that resulted into pending cases is the adjournments granted by
the court on flimsy grounds. Section 309 of Code of Criminal Procedure and Rule
1,Order XVII of Code of Civil Procedure deals with the adjournments and power of
the court to postpone the hearing. These adjournments are granted only when the
courts deems it necessary or advisable for reason to be recorded. . It also
gives discretion to the court to grant adjournment subject to payment of costs.
However these conditions are not strictly followed and the bad practice
continues not by litigants but by sitting judges also. It thwarted the right to
speedy trial of the concerned litigants. By granting regular adjournments the
value of the time and importance of the remedy sought for the cause of action
also degraded with the time. The justice is called as justice when it in real
sense delivers justice to the grieved person at proper time.
Vacations for the Courts
The most debating question relating to the causes for pendency of cases is the
vacations for courts. It is argued on national level that why the courts should
have such long vacations when there is such huge pendency of cases in all the
courts waiting for decades for disposal. In most of the countries like France &
USA there is no provision for vacations for
the courts. The judges in these countries can take leave according to the
convenience without affecting smooth functioning of courts. In India only
Sub-ordinate Criminal Court runs whole a year but the Supreme Court, High Courts
and the other Sub-ordinate Civil Courts are closed during the vacation period.
The system of vacation is a
legacy of colonial ruler. In the pre-independence period, the burden was not so
great in comparison to the present situation. Also, the English comings from the
cold country were finding summer in India unbearable. Therefore the vacation was
evolved as an arrangement to enable them to go to England during summer
and spend their time comfortably there. That was the time when travel was
required to be made by sea which occupied several weeks. This appears to be the
real reason for the introduction of vacations for courts in India.
Vacations for the High
Courts are fixed by each High Court according to their own convenience, bearing
in mind the order of the President issued under Section 23(a) of the High Court
Judges Conditions of Service Act, which requires each High Court to work for 210
days a year. The total period of vacation of each High Court varies from 48 to
63 days. However, during vacations some Judges sit on the vacation benches only
to transact urgent work. There is a convention which enables the High Court
Judges to take 14 days Casual Leave every year. In addition, there are more than
two weeks of public holidays every year. High Court Judges do not sit on
Saturdays and Sundays. Though the High Court is expected to work for 210 days,
the Judges would be working for a much lesser number of days when they avail of
different kinds of leave. Supreme
court should work for 185 days a year. In summer, Supreme Court goes for 8 weeks
summer vacations. Besides these there are public holidays like Holi, Daseera ,
Deepavali and New Year . These vacations ultimately affect the functioning of
courts. The Arrear Committee suggested that these vacations has been given in
order to provide time to the judges
for updating their knowledge by reading, attending seminars, conducting research
work etc. So the vacations should be reduced and not abolished completely. These
recommendations are not yet implemented and the minimum working days of the
courts have not been followed.
Other Relevant Causes
Lack of utilizing the applications of information technology for the case
management. Same procedural law and proceeding even for the trifling and low
cause of action cases. Sometimes the precious time of the court is wasted to
decide the cases which can be decided through other bodies. No consideration
given to the expertise and specialization of judges while assigning them the
cases. Normally same judge has been assigned civil as well as criminal cases
that resulted into taking more time to understand the facts and circumstance of
the cases. This is one of the malpractices practices in most of the high courts.
By effective system of case management this problem can be curbed.
Need for Reformation
The development of any country is measured by the economic and judicial system,
governmental setup and living standard of people which includes fair and speedy
justice. Due to delay in deciding the cases, the whole democratic and economic
structure of country is affected. In liberalized era, many scams and frauds are
committed which affect the living of
people and it requires not only quick reactions but also actions from the
judiciary to decide these matters. But this is generally not followed in India.
There are many cases relating to scams which are still pending for years and the
culprits behind these acts of scams are yet to be punished. In
Harshad Mehta
Scam relating to securities market, the court finally punished Harshad Mehta
after seven years of trial, but this order was appealed. The final decision was
arrived after the death of Harshad Mehta. Where as around the same time in the
early nineties, in Singapore occurred the scandal involving Nick Leeson of the
Barings company. Under the Singapore system of justice, within two years, Leeson
was punished. In fact, he also undergone the punishment before the first
decision could be arrived at under the Indian judicial system in the
Harshad Mehta case. This reveals that in India, due to delay in justice the
accused person using this loophole for his unfair advantages and generally gets
the benefits. For rectifying these defects many committees, reports and boards
had
formed and all of them have suggested number of measures. Some of these measures
are already implemented but due to lack of mechanism and potential these are not
fully utilized to get rid of the arrears. The problem of pendency is not
restricted upto India but many other countries like USA, Australia had also
suffered the same in the past but by proper implementation of policies regarding
reformation of judicial system they capitulated the situation. Now it is high
time and absolutely necessary to consider these policies in the Indian context.
Mediation & Other
Alternative Disputes Resolution Methods
For relaxing of arrears of cases it is necessary to bring down the rate of newly
registered cases in the court. It doesnt mean that to bar or abstain the people
to go for court but to take alternative way to solve the disputes. Mediation is
one of the methods which are adopted by many countries and the positive results
came out. USA had a similar problem, though not of the Indian magnitude. Delay
of 5 years in civil cases and a huge number of pending cases was causing a lot
of concern in the USA. By adopting mediation, USA within a short span of 15
years the US Courts have achieved very significant results. In San Diego
(California) having the third largest number of trial Courts in the USA, 97% of
the civil cases get settled through mediation.
Mediation is a process in
which the mediator tries to facilitate the parties in coming closer and to make
each party understand the case of the other party. The mediator do not decide
the case, he has no authority to decide, yet he successfully brings the parties
together and helps them in finding out a mutually, acceptable resolution of the
dispute. The main benefit of this method is that: Timely resolving the matters
with the participation of parties
Privacy, confidentiality
and continuity during the proceeding
.Solution is found by the participation of parties. Section 89 of Code Of Civil
Procedure, 1908 (46 of 1999, amended)
provides for the settlement of disputes outside the court when it appears to the
courts that the matter exists the element of settlement between the parties. For
this, it refers the method of arbitration, conciliation, settlement through Lok
Adalat or mediation.
This method doesnt follow
the lengthy procedure to settle the cases. In India most of the civil cases are
filed not only to get the remedy or damages but also to show the competency to
the societies. These types of cases can be tackled in the initial stages with
the help of mediation process. In India these types of methods are not
implemented to their full potential. These methods require funds, attention and
acceptance by the states to promote the public to solve their general matters
through
mediation other alternatives like arbitration, conciliation, negotiation etc.
Case Management
When the matter is not settled in the initial stage through mediation or other
process it comes before the court. So to the certain extent to reduce the
pendency of cases it is necessary to manage the cases effectively in the courts.
Effective case management depends on the court management. The Chief Justice
plays vital part in the process of court management. He monitors the working of
each court, its needs and problems and gives solutions and support. It is
necessary for the Chief
Justice to devote time not only to his judicial function but also to the
administrative functions. It is considered that due to devoting lack of time for
administration works the pendency occurred. So he should consider suggestions
from a Joint committee of Judges and lawyers who meet once in a couple of months
to discuss problems being faced by litigants, lawyers and judges in the course
of judicial administration. This leads to the effective court management which
ultimately results into case management. For effective system there must be
scheduling of cases in the courts. Time should be mentioned for the trial
proceeding like filing the case, document presentations etc. Delay in presenting
and submitting the document generally leads to the adjournments. Pre-planned
schedule helps to reduce such delays in proceeding.
Recommendation made by
Malimath Committee
This committee was formed by the order of Government of India, Ministry of Home
Affairs by its order dated 24 November 2000. The main aim of this committee is
to make recommendation for reformation on Criminal justice system, simplifying
judicial procedures, practices and making the delivery of justice to the common
man closer, faster, uncomplicated and inexpensive.
On Vacancy of judges
It recommended that to increase the present 10.5 or 13 judges per million
population to 50 judges per million population within 5 year period as decided
by the Supreme Court in All India Judges Association and others Vs. Union of
India. Also, it suggested that it is necessary for each State to make an
estimate of the number of Judges required to be appointed having
regard to pendency and inflow of fresh cases and nature of litigation. It also
suggested for constituting a National Judicial Commission, being considered at
the national level to deal with appointment of the Judges to the High Courts and
the Supreme Court and to deal with the complaints of misconduct against them. It
stresses on the quality with the quantity
of judges.
Improving the Quality of
Justice : Specialization, Training and Qualification
The Committee suggested that the cases must be assigned according to the
specialized area of the judges. Assigning cases without considering
specialization results into delay in deciding the matters. Also some specialised
tribunal must be established to deal some matter pertaining to tax, services,
and labour etc. separately. It suggested that the specialization provide
consistency, certainty, speedy and quality judgments.
It also suggested that the
newly appointed judges and the judges promoted from sub-ordinate courts to the
higher courts should be given intensive training for reasonable period to
improve their skills in hearing cases, taking decisions, writing judgments and
in court management. The inadequate competence of the judges resulted into delay
in justice should be removed through proper training.
It also recommended that
special attention should be paid in the matter of prescribing qualifications for
recruitment of Judges at all levels and to improve the methodology for selecting
the most competent persons with proven integrity, character, having regard to
the nature of functions which a Judge is required to discharge. No other
consideration
other than merit and character should be taken into consideration in choosing
the Judge for the Courts.
Accountability
The Committee suggested that judicial credibility is enhanced when it is
transparent and accountable. The conduct of judges is also responsible for delay
in justice. Due to no power conferred on the Chief justice to control the judges
activities, judges recklessly perform their duties. The committee suggested that
it is necessary to regulate the functioning
of the judges with respect to their duties by conferring power to the Chief
Justice with this respect and also by making judges accountable for their
conduct by establishing National Judicial Commission. The Chief Justice should
be conferred with the following powers to look into the grievance and take
effective measures :
Advising the Judge suitably
Disabling the Judge from hearing particular class of cases or
cases in which a particular lawyer appears.
Withdraw the judicial work from the Judge for a specified period.
Censure the Judge.
Advise the Judge to seek transfer
Advise the Judge to seek voluntary retirement
Committee also recommended
that the provision of impeachment by amending Article 124 of Constitution of
India to make it less difficult. The Committee while considering the situation
of USA tried to implement it in Indian scenario. There were similar problems in
USA where the Judge can be removed only through impeachment process which is not
easy to
enforce. Accordingly, Judicial Councils Reform and Judicial Conduct and
Disability Act 1980 was enacted. Under the Act, there is a judicial council for
each circuit and a National Judicial Conference at the Apex. They have been
given power to censure a Judge, request him to seek retirement or direct that no
cases be assigned to the Judge for a limited period. The Committee is in favour
of conferring similar power on the Chief Justices of the High Courts.
The Committee considered
that some Judges do not deliver Judgments for years. If there is delay the Judge
may forget important aspects thereby contributing to failure of justice. There
are also complaints that the Judgments are not promptly signed after they are
typed and read causing great hardship to the parties. To correct these
aberrations the High
Courts should issue a circular to enter immediately below the cause title of the
judgment/order, the following:
The date when the arguments concluded;
The date when the judgment was reserved;
The date when the judgment was pronounced;
At the bottom of the judgment/order, the stenographer should enter the date on
which he received the dictation, the date
when he completed the typing and placed before the Judge and the date when the
Judge signed it.
Adjournments
The Committee considered adjournments as a curse of the courts and suggested
that the adjournments should not be used as a tool for delaying the justice by
the courts. Today the adjournments are granted on the ground which clearly
defeats the provisions of law and purpose of the law. To cope up with this
situation it was suggested by the Committee that to regulate the discretion the
High Courts must lay down the exceptional circumstances when adjournments may be
granted. Section
309 of the Code of Criminal Procedure should be amended to make it obligatory
towards imposition of costs against the party who seeks and obtains adjournment.
The quantum of costs should include the expenses incurred by the opposite party
as well as the Court, the expenses of the witnesses that have come for giving
evidence and not merely the cost of Rs. 200, 500 or 1000/-.
Vacations for Courts
The Committee on the question, whether the Courts should enjoys the vacations
inspite of huge pending cases yet to decide? agreed on the recommendations made
by the Arrear Committee that there should be reduction by 21 days in the
vacations for the courts. These recommendations are yet to be implemented. The
Malimath Committee agreed on this suggestion. The recommendations made are:
# The working days of the Supreme Court be raised to 206 days.
# The working days of the High Courts be raised to 231 days.
# The Supreme Court and the High Courts shall reduce their vacations by 21 days
which would increase in their working days.
Other Recommendations:
Arrears Eradication Scheme: Govt. of India, Ministry of Law and Justice has
created a fast track courts which is limited only to the Session Court Cases and
also having practical problems which restrict it to work in all states. To
overcome this problem the Committee is in favour of working out an Arrears
Eradication Scheme for the purpose of tackling all the cases that are pending
for more than 2 years on the appointed day. The retired judge of high court,
known for his efficiency, should preside over this scheme.
Burden of Proof: In India,
Adversarial System is followed so the standard of proof laid down by our courts
following the English precedents is beyond reasonable doubt in criminal cases.
The Committee suggested that it is difficult to prove for the prosecution that
the accused person is guilty beyond reasonable doubt. In several other countries
Inquisitorial System is followed where the standard of proof preponderance of
probabilities is on the accused. The committee suggested that now the time has
come to change the Adversarial System into Inquisitorial System. It also
recommended that the burden of proof should be of degree which lies in-between
the beyond reasonable doubt and preponderance of probabilities.
Conclusion
The above-mentioned recommendations and suggestions given by various committees
and boards should be followed by the government for making reforms in the
judicial system. Besides these, there are certain other facets that should also
be considered:
Compulsory Pre-trial
Conciliation : For Civil matters; Section 89 of CPC deals with the alternative
disputes resolution for settlement. But it is not fruitful until some
circumstances are laid down which guides that the particular matter must be
first go for settlement outside the court. It is necessary to draft the rules or
guidelines by Central government, which clearly lays down the circumstances.
Judgments should not be
allowed to be kept reserved by the judges at various levels for more then two
weeks after completion of argument. Rule 1 Order XX of Code Of Civil Procedure
deals with the same but not strictly adhered by the court. The provisions should
be made which makes judges statutorily liable for delay in pronouncement of
Judgments.
A provision must also be
introduced in the Code of Conduct for judges that if a judge hears the case, he
should deliver the judgment. The judge who hears the arguments, examined the
evidence in a particular case requires to deliver his decision unless otherwise
the case falls in specific exceptions such as death of the judge or retirement.
If it is not done then the other judge take time to understand the facts and
situations of the case that cause undue delay.
Records of Performance
Assessment or Audits of workload of judges and advocates on individual basis
should be maintained on the basis of statistical data. It should mention the
number of cases disposed by each judge, number of adjournments granted by the
judges, etc.. Also publication of such statistics should be made as done in USA
& Britain.
Second Appeal for the
matters should not be granted leniently and the courts should grant it only on
certain conditions which should be laid down by the High Courts.
What Has Been Done
In view of the aforesaid reformation stage, fast track courts have been
established as a part of the reformation in most of the states, Lok Adalats
working well with the objective to dispose the matters outside the courts,
specialised tribunals are also established, some amendments are made in Code of
Civil Procedure which reducing the burden from the higher courts, setting up
Industry wise tribunals to hear appeals against orders passed by the regulators,
increased number of law
colleges and legal courses, introduced more law subjects in Management, CS, CA
and other professions a and many more. But the arrears are yet to dispose off
from the courts. It requires continues practices of implementations of the
recommendations with the time going. Now the time has arrived which demands to
establish autonomous bodies at Centre and State level that not concern only to
indicates the shortcoming but it also have the potential to rectify the same
with time remaining. This also requires the combined efforts made by
legislature, executive and judiciary and considers it as a unit problem, not to
judiciary alone.
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References
#
Justice Mohite S. Shah, Gujrat high court, Study of the American Legal System
for Procedural Reforms in Civil Courts in India, Accessed online at
www.lawcommissionofindia.nic.in
# V.Venkatesan, The law and
delays, Frontline, Vol.19-issue05, Mar.2-15, 2002, Assessed online at
www.frontlineonnet.com
# T.K.Vishwanathan, Tackling
Judicial Arrears, the Hindu, Apl 19,2002, Assessed online at
www.hinduonnet.com/2002/04/19/stories
# Speech by N.M. Ghatate,
National Conference on "Reinventing Indian Legal System for Achieving Double
Digit Economic Growth, Assessed online at :
www.ficci.com/media-room/speeches-presentation/2004/apl/apr10-justice-inug.htm
# N. Vittal, Delays in Indian
Judicial System and Remedies, Assessed online at
www.cvc.nic.in/vscvc/cvcspeeches/march2k6.html
# Rajendra Swaroop Mittal,
Changing the Judicial System, Assessed online at
www.tribuneindia.com/2000.html
Chairman, Justice V.S.
Malimath, Committee on Reforms of Criminal Justice System, Report, Vol. 1, 2003
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The author can be reached at :rajpunia@legalserviceindia.com
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Arrears
On Judiciary demand for judicial reform
