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 CasesThere 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 JudgesIn 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 AdjournmentsThe 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 CourtsThe 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 and Other Alternative Disputes Resolution MethodsFor 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.
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 CommitteeThis 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 judgesIt 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 QualificationThe 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.
AccountabilityThe 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.
AdjournmentsThe 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 CourtsThe 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.
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.
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.
# 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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