India ranks second in the most populated countries of the world but as far as
the number of litigations and litigants are concerned, we are undoubtedly the
World Leaders. It is indeed a cause of grave concern that more than 3.5 crore
cases are pending in the various courts across the country. The question arises
as to who is responsible for the clogging of the courts. Is it it the litigants,
the out-dated judicial system, the overburdened advocates, the obsolete laws,
the complexities in the various Laws, the poor infrastructure of the Courts, the
role of the Government as the biggest Litigant or all of them put together?
The Mounting Pendency:
The Economic Survey for 2018-19 shows 3.53 crore pending cases clogging the
Indian judicial system. This number is undoubtedly very big and appears
insurmountable. The Pendency in District and Subordinate Courts account for 87.54%
of the total pendency whereas the pendency in the 25 High Courts is 12.30% and
0.16% in the Apex Court.
It is pertinent to refer to Report of Administrative
Staff College, Hyderabad submitted to the Ministry of Law in January 2018 which
states that 17,62,000 cases were instituted in 2015 in the Higher Judiciary
while 1,89,40,000 cases were instituted in the various District Courts around
the country. This clearly demonstrates the colossal pendency of cases in the
Courts impliedly denying speedy justice to the oppressed.
Vacancies in High Courts:
There are 25 high courts in India. The number of total judges sanctioned in
these high courts is 1079 of which 771 judges are permanent and remaining 308
sanctioned for additional judges. As of August 1, 2020, 394 of the seats (about
36%) are lying vacant. There are 20 lac advocates practicing in our country. Do
we not have just 394 competent and honest advocates who could be elevated to the
Bench? Without adequate number of Judges, the pendency in the High Courts is not
going to decrease.
The Collegium and the Government both share the
responsibility for the appointment of Judges to the High Court and the Apex Court.
There appears to be lack of Will and Commitment of both the functionaries for
political reasons or otherwise for timely appointment of Judges. Moreover, the
mandated number of Judges for the High Courts and the Apex Court needs to be
enhanced in view of the large pendency of cases for their speedy disposal.
Similarly, the number of Judges in the subordinate judiciary needs to be
increased manifold to provide time-bound respite to the litigants.
Government is the biggest Litigant:
One often asked question is as to who is the biggest Litigant in our country. It
is a shocking revelation that our Government is the biggest Litigant. 45% of the
pending litigation is by and against the Government- Central Government, State
Governments, local Governments and Central / State Direct and Indirect Taxes. No
official in the Government is prepared to grant relief by applying a Precedent
as he is afraid of future administrative action on him for charging him for loss
Consequently, even where matters stand covered by earlier Binding
Precedents of the High Courts or the Apex Court, which are binding under Article
141 of the Constitution, are ignored and frivolous appeals/ SLPs filed thereby
clogging the Courts and wasting the precious time of the Courts. Article 141 of
the Constitution of India expressly mandates that the law declared by the
Supreme Court shall be binding on all Courts within the territory of India.
Thus, the general principles laid down, by the Supreme Court are binding on each
individual including those who are not a party to an order. Similarly the
Precedents of the High Court are binding on the officers of the State under
Article 227 of the Constitution. Lack of consistency in accepting orders and
filing of appeals/ revisions by the Government is another area of worry. The
Government accepts the orders in certain matters while in similar matters the
Government agitates the matter in a higher forum. Lack of consistency in similar
matters is highly discriminatory and undesirable and results in clogging the
No scrapping of Ultra Vires Provisions:
A number of provisions of the various Acts have been declared 'ultra vires' by
the Apex Court but these provisions still exist in the Acts and are not scrapped
by the Government/Legislature creating confusions in their implementation by the
lower authorities, who are apparently oblivious of these legal developments.
example Section 118 of the Indian Succession Act had been declared
discriminatory under Article 14 of the Constitution and thereby declared ultra Vires but the said provision has not been scrapped/ amended in-spite of
categorical Declaration of Law by the Apex Court in the case of John Vallamattom
And Anr vs Union Of India
on 21 July, 2003. Hundreds of provisions of various
Acts have been declared Ultra Vires but no corresponding amendments have been
Innumerable Acts- need for scrapping obsolete Laws:
India till a few years ago had 2781 Central Acts and a still larger number of
State Laws. Most of them enacted during the British Raj and date back for more
than a century. A number of amendments have been made, a number of Acts have
become redundant with the passage of time and need to be scrapped/ abrogated.
Government ought to take speedy efforts in pinpointing such redundant and
out-dated Central/ State Acts and scrap them. One more area which needs immediate
concern of the Government is Simplification of existing Laws to minimise
multiple interpretations which automatically lead to prolonged litigation.
Certainty of law can also contain litigation. A lot of amendments are being
legislated and as a consequence thereof the settled legal position becomes
Justice means Speedy disposal of cases:
It is often said that Justice Delayed is Justice Denied. This means that if
legal redressal or equitable relief to an injured party is not available early,
it is effectively the same as having no remedy at all. Justice is one of
civilization's foundational goals. It is therefore imperative for the judiciary
to perform its duty in a manner to enable the society to continue its pursuit of
peace, harmony and progress.
It is pertinent that a recently the Apex Court in
the case of V. Kalyanaswamy (D) by LRS. and ANR vs. L. Bakthavatsalam (D) by LRS.
finally decided the matter of inheritance on July 17, 2020 almost 65 years
after institution of the case. This certainly cannot be termed as Justice
is a matter of common knowledge that everyone who goes for redressal to the
court has to wait for generations for getting justice. Justice becomes
meaningless and redundant after a particular span of time.
Such an inordinate
delay in imparting justice in the long term leads to an erosion in the faith of
people. One is reminded of Jarndyce and Jarndyce, a fictional court case
in Bleak House by Charles Dickens, progressing in the English Court of Chancery.
The case is a central plot device in the novel and has become a byword for
seemingly interminable legal proceedings.
Jarndyce v Jarndyce
concerns the fate
of a large inheritance. The case has dragged on for many generations and the
legal costs ultimately devoured the whole estate and the case had to be
abandoned. Dickens used it to attack the chancery court system as being near
totally worthless with an advice to Suffer any wrong rather than come here!
The position of our legal system as it exists today cannot be said to the better
than Dicken's court system. But we have to find out solution to this problem so
that there is timely redressal for the common man and the Real Rule of Law is
Suggestions for unclogging:
The only solution to unclog the Courts and to provide time-bound justice to
those approaching the courts is perhaps to fix a mandatory time limit for the
disposal of cases. It should be made compulsory for those holding the judicial
chairs to render decisions in civil/criminal cases within a specified time
limit. If the obligation to impart justice through timely and reasoned manner is
breached, as it flagrantly has been for decades in our country, the rule of law
is subverted and becomes nugatory.
This situation is akin to a situation of
lawlessness and in fact it is prevalence of state of pandemonium. The golden
rule of law is “to none deny or delay, right or justice” but the stark reality
is that delivering justice expeditiously is unheard and unseen in our country. The
biggest problem is that there is no accountability of the judiciary which leads
to state of anarchy. The rule of law, after all, cannot be seen to act
arbitrarily and must be held accountable.
If Transparency and Openness are
achieved, judicial arbitrariness is automatically curbed. If the judge does not
comply with the mandatory time frame, they ought to give explanation for the
reasons of delay. Extension of time can be granted by their heads, on specific
requests, but in exceptional circumstances after giving reasons and allowing
limited fixed time to complete the proceedings. This move shall further
strengthen the judiciary rather than dampening the spirits of judiciary.
would be trite to refer to an instance wherein the Court of Appeal of England
and Wales criticized a High Court judge in such terms that he was compelled to
tender his resignation to the Lord Chancellor, when he had delayed imparting of
Justice inordinately. This Precedent of UK should be emulated in our country,
which also follows Common Law. Delays beyond the stipulated time cannot be
tolerated in a country committed to dispensing Justice within a Time Frame.
Adjournment is catalyst for clogging:
One of the biggest menaces of Delay in disposal of cases by Courts is the
tendency/tactics of seeking repeated adjournments on lame/baseless grounds. Once
the time Limit for final disposal of cases is mandated, the Courts will not be
able to grant frequent Adjournments. Moreover, adjournments should be ordered in
really demanding circumstances and that too for the next working day and not for
months and years together.
The total number of Adjournments in a case in District
Courts should be not more than 2-3 during the entire hearing of the whole case.
No adjournment should be given on ground of busy schedule of the arguing
lawyers. This will also promote and give new opportunities to young and budding
lawyers to establish themselves as they are not that busy.
Remand of cases to be minimised:
One of the other precipitating factors in the judicial system is the tendency to
remand the cases by the Superior Courts for reappraisal of the law and facts.
There have been a number of judgements of the higher courts wherein the courts
have given detailed judgements but did not decide the long pending dispute and
remanded the matter for fresh adjudication to the lower court.
usually discuss the applicable laws but relegate the matter to the lower court
without a framework or a direction. It cannot be denied that the courts in writs
and revisions can only decide the question of law and are not to do appraisal of
facts but while sending back the matters to be decided afresh they ought to lay
down the law and direct the subordinate court to decide the matter expeditiously
after ascertaining the true facts of the case in accordance with the law laid
down by them.
Virtual hearing during and Post Covid-19:
The use of Technology has made it possible for our Higher Courts to impart
justice during the period of Covid-19 pandemic but only in very urgent matters.
Even Post Covid-19, Virtual hearing can also help in unclogging the Courts. In
cases of bail, stay, minor offences, admissions, recording statements of
witnesses, grant of interlocutory orders, disposal of miscellaneous applications
etc. should be heard and disposed of only through virtual hearing.
This will save
the valuable time of the Courts. It is the right of every citizen of our country
to have an effective legal remedy and timely redressal and Virtual Hearing shall
foster timely hearing and redressal. Even in High courts, there should be
designated ' Virtual Benches' running parallel to normal physical benches.
Overhaul of Judicial/ Court system:
The stark reality is that the existing system is too overburdened and the
judiciary is often impacted by judicial hesitancy to make a decision.
Unjustifiable delay in court proceedings, particularly in deciding cases, has a
significant impact on the parties and reflects adversely on the judicial
system. Today it takes a minimum of 25 years if a case travels from the
subordinate court to the higher courts.
Twenty five years means possibly new
generations of litigants, enormous cost and frustration. This time lag for
ultimate resolution speaks volumes of the inefficiencies and ineffectiveness of
our judicial system and such 'justice' delivered after a span of 25 years would
be bereft of its true meaning. Every day in each court 70-75 cases are listed
in a district court, where the effective hours of working are just 6 hours. The
Judge has to provide hearing, conduct examination of witnesses, listen to
arguments, pen down arguments and rulings, dictate orders and do other
With the listing of about 70-75 cases listed before him
each day, the lawyers well realise that majority of the cases are only meant to
be adjourned by the judge without any significant movement. This is happening
every day in each court across the country throughout the year.
that the judicial system has adapted itself to system of Adjournments. Similar
is the scheme of several High Courts, wherein the lists are not completed and
the matters get automatically delisted. It is required that an improved system
be developed to efficiently manage the judicial time.
No precious time of the
Court should be wasted on routine adjournments, which should be limited and made
in advance to enable the lawyers of the final list to go thorough and prepare
their cases as they know that their matter would be heard with certainty. This
type of judicial time management would certainly achieve the desired results.
Another important measure could be to appoint a full-time judicial
administration cadre which would be ancillary to the work of judges and is
carried out by dedicated and specialised personnel to help judges efficiently
perform their judicial duties. This trained cadre will provide support to the
judiciary through case management, assistance with budgeting, handling
administrative tasks, and ensuring maintenance of court infrastructure thus
enabling the judiciary to focus on the dispensation of justice. They would also
be instrumental in harnessing technology in the better delivery of justice.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]