Distinguished Panelists, the Principal of Kristu Jayanti College of Law,
Faculty Members, academicians, my dear law-students, participating Ladies and
Gentlemen. Namaste! Subodayam! Vanakkam! All protocols observed. Greetings to
you all, from the Republic of Seychelles. I am very delighted to be invited to
deliver a lecture on the subject the Judicial Delays in Administration of
I am most grateful for the honour, opportunity and time you have given me to
share some of my thoughts with you, on this interesting theme. Please, forgive
me, if I take the liberty of speaking my mind without reserve, and at times,
being outspoken perhaps, outstepping my jurisdiction and expressing my personal
views on many issues in this discourse; but all I do with utmost humility
respecting the differing views of others.
At the outset, I must tell you that generally delay
of any action that we perform in our day-to-day life, for
that matter, not only weakens the desired result of it, but also at times, such
delays defeat the very purpose for which we perform those actions.
Obviously, Judicial delay coupled with an alarming increase in the number of
backlogged cases in our Courts and in many other countries is now, posing a
constant threat to an effective and efficient administration of justice. Rule of
law and good governance are put in peril.
Above all, the very foundation of justice namely, public confidence in the
existing justice delivery system and overall in the judiciary is diminishing.
After all justice is rooted in public confidence. The issue of judicial delay
and backlog of cases is not peculiar only to India, it is common among many
other countries worldwide and has affected many jurisdictions.
For instance, according to the Economic Survey 2018-19, there are about 3.5
crore cases pending in the Indian judicial system, especially in district and
subordinate courts. According to a recent survey the Supreme Court of India has
nearly 61,000 pending cases. The High Courts have more than 40 lakes pending
cases of which nearly 94% have been pending for 5-15 years.
The World Bank Report of the same period also shows that the time taken to
decide a case in Indian Courts has remained static at 1,445 days. This issue
raises a serious public concern.
How are we going to cope with the ever increasing ' backlog' in our system and
deliver timely justice to the ordinary man?
Whereas, the Preamble to our Constitution has placed justice - social, economic
and political - in the highest pedestal, above all the other features like
liberty, equality and fraternity. Needless to say, justice delayed is justice
denied. Indeed, ' delay' is not a simple postponement of an action over a period
of time, but in a judicial sense, it is ' an action in process' that has
irreversible long term consequences. This ' process' , with the progress of
time, slowly, stealthily and silently kills justice.
The evolution of right to speedy justice, its jurisprudence and the line of its
growth now, as fundamental human right historically originates from the mother
of all Constitutions of the world, the famous Magna Carta of 1215, the doyen of
the English law of the 13th Century. Section 40 of this great Charter reads
To no one will we sell, to no one will we deny or delay right to justice
The last four words namely, delay right to justice
of the 13th Century
expression, born of political revolution, are historically very significant in
the evolution of human rights. They are still relevant to the human rights
situation of today. Therefore, delay in administration of justice is not a new
social phenomenon; it is as old as Magna Carta, and even much older, if I may
say so. Theologically speaking, with due respect to all religious faiths and
gods, delay in Justice is as old as Adam and Eve.
Despite, God in His power and wisdom had ordained that Adam and Eve shall die on
the day they eat the forbidden fruit in the Garden of Eden (see, Genesis 3.2),
it took 930 years for His order to be executed. Even the execution of God's
sentence of capital punishment was thus delayed, for reasons, only God knows!
Hindu scriptures too, show that the issue of delay in justice has been in
existence ever since Vedic period.
The ancient book Yajurveda stipulates under Chapter VIII, Verse 50 that rulers
should be committed to speedy justice and solutions of problems. From this
exposure of its origin, let it not be thought that I am justifying judicial
delays in the existing justice-delivery-system. I am not.
Historically, the 6th Amendment to the Constitution of the oldest democracy, the
United States of America also provides that ' in all criminal prosecutions, the
accused shall enjoy the right to a speedy and public hearing .
The right to hearing within a reasonable time is also recognised in the
Universal Declaration of Human Rights of 1948; and it is also guaranteed in the
Charter of Fundamental Rights of the European Union, in the African Charter on
Human Rights, in the Canadian Charter of Rights and Freedoms. The Constitution
of the Republic of Seychelles also guarantees explicitly under Article 19(1)
that right to a fair hearing within a reasonable time as fundamental right to
Thus, right to justice within a reasonable time is not only a fundamental right,
but also a prerequisite of maintaining rule of law, good governance and public
confidence in the judicial system.
Hence, right to justice within a reasonable time is now accepted as universal
human right and so occupies the center stage of national and judicial goals of
all civilized democracies in the world.
All modern democratic constitution of the world provides for the right to '
hearing within a reasonable time' and in some jurisdictions it is also extended
to civil litigations.
Now, the repeated use of the phrase ' within a reasonable time' which runs as a
common-golden thread throughout all those Constitutional provisions may puzzle a
law-student particularly, the term ' reasonable' as this epithet appears to be
vague, imprecise and uncertain.
One may reasonably ask What does the term ' reasonableness' mean in the
context of setting a time frame in this respect?
In determining the issue of reasonableness in the context of setting a
time-frame for the final disposal of a particular civil or criminal matter
before it, the court has to make a subjective assessment of the entire facts and
relevant circumstances peculiar to that particular case on hand, and in that
light should consider whether the duration taken or likely to be taken from the
time the case was filed in Court until such time the judicial process ends to
give final disposal to the matter, is reasonable or not.
In considering reasonableness, the duty of the decision-maker is to take into
account, all relevant circumstances as they exist at the date of the hearing
that he must do in what I venture to call a broad commonsense way, not as a
judge sitting in the ivory tower, cutting off from the sensitivity of the
community but as a man of the world, and come to his conclusion giving such
weight, as he thinks right to the various factors in the situation.
Some factors may have little or no weight; others may be decisive, but it is
quite wrong for him to exclude from his consideration matters, which he ought to
take into account. In this exercise, in my considered view the Court may also
take judicial notice and cognizance of certain matters, which are so notorious
or clearly established or common knowledge, evaluating them as facts proved
otherwise than by evidence.
I hope this dictum would throw some light on the understanding of the term reasonable
vis-�-vis Judicial delay
Having said that, it is interesting to note that the Constitution of India does
not specifically provide for the right to speedy trial or hearing within a
reasonable time, either as fundamental right or otherwise. It apparently remains
silent in this respect. This silence should not be seen as a lacuna or
misinterpreted that Indian Constitution is outdated or stagnant or inadequate.
It is not. The Constitution of India is an organic living institution.
It evolves, grows progressively over time, and adapts itself to new
circumstances, without being formally amended by the Parliament but it does take
place subtly through pragmatic judicial interpretation setting case law for
future applications with affectivity. We have an active, strong and progressive
judiciary, which from time to time, swiftly and wisely interpret and gives force
and life to constitutional provisions and is paving the way to social justice
clearing of all obstruction.
Thus Judicial activism is so vibrant and it fine-tunes and updates the
Constitution effectively, to meet the changing and challenging needs of time,
society providing the necessary growth to it, and promoting justice - social,
economic and political as contemplated in the Preamble. Indeed, in 1979 the
Indian Judiciary in its wisdom broke that apparent constitutional silence on the
concept of speedy trial. It filled the gap through interpretation of the
Constitution and adopted incorporating the international human right norms on
speedy trials to advance our constitutional growth with that of the others in
the modern world. Accordingly, it made a dictum in Constitutional law setting a
precedent for the future.
In the landmark case of Hussainara Khatoon v. Home secretary, State of Bihar
[AIR 1979 SC 1360] the Supreme Court held that the judicial procedure should be
reasonable, only when it ensures, reasonable and quick trial. The court also
categorically pronounced that expeditious trial is an integral and essential
part of the fundamental rights to life and personal liberty enshrined in Article
21 of the Constitution. This remarkable dictum was destined to have important
constitutional significance and consequence had to follow.
Having said that, a court of law, be it superior or lower, appellate or trial in
the judicial hierarchy, in my view, it should steer the law towards the
administration and delivery of justice within a reasonable time, rather than the
leisurely mechanical administration of the letter of the law and procedures.
Timeliness is absolutely necessary to the achievement of justice. In that
process, undoubtedly, its primary function amongst others, is obviously, to
adjudicate and give finality to the litigation, but in criminal matters more
importantly, justice must also be delivered within a reasonable time, not only
in the interest of the accused, but also that of the victim and above all in the
larger interest of the nation and its people.
Sadly, at times inordinate delays in the justice delivery system result in the
criminalization of politics and politicization of criminality. It is truism that
the criminal law is based on the fundamental principle that an accused person is
presumed to be innocent till proven guilty. He is released on bail pending the
final determination of the case.
If the case is procrastinated in Courts, for instance, 15 or more years, a
criminal can remain free, beyond the clutches of the courts, sheltering under
different shades of politics, contests elections and become a Member of
Parliament or State Legislative Assembly or even a Minister at the Centre or in
the State government or at times even glitter as a star in the horizon of
politics because he has not been proven guilty yet.
Thus, inordinate delays in the justice delivery system gives criminals, who
committed crimes, enough freedom, time, favourable circumstances and opportunity
to destroy or even to manipulate evidence, tamper witnesses and records. Such
delay also works as a double edged-weapon. It may also in many cases, cause
prejudice and works injustice to the accused persons as well, who are facing
They may have the best defence-evidence available to prove their innocence, but
because of undue delay, they may not be able prepare, proffer and present their
evidence in Court at the time of trial due to many factors such as the death of
a key Defence-witness, fading or lapse or loss of human memories, loss or
destruction of documents etc. The delay itself destroys the authenticity of the
With due respect, it is my humble view, the good sense of the Court, should
always foresee the long term ramifications of the judicial delays and adjudicate
the cause so as to prevent or control the contingent delays that could possibly,
proliferate in future, due to multiplicity of litigations on the same cause or
matter. Needless to say, prevention of potential delays with judicial foresee
ability is always better than cure. Therefore, our Courts in India - like any
other Court of such foresee ability and sense would do elsewhere - should speed
up trials and adjudicate the disputes accordingly and prevent chronic delay that
has cancerously afflicted our justice delivery system.
After all, the law is simply a means to an end; that is, justice. If the means
in a particular case fails to yield the desired result in time, due to
procrastination repeated appeals, reviews, remittals, writs, abuse of process,
frivolous and vexations stays, retrials, unnecessary adjournments which all when
drag on the cases for decades, the Courts- have to rethink, reinvent,
reinterpret and sharpen those means, the tools in order to eradicate the
judicial delay, the enemy of justice, as Lord Lane once remarked.
Hence, the Courts should never hesitate, where circumstances so dictate, to
adopt measures that are just and expedient to prevent the delays,
procrastination and the resultant public frustration in the due administration
of justice. Now then, I would simply ask: Which is to be preferred the means
I have to ventilate what a voiceless common man in the remote corner of the
rural India feels and grumbles about the prevailing ' judicial delays' , when
some Courts short-sighted by the letter of the law, prefer the means over the '
end' and defeat justice.
Faced with glaring injustice caused to a citizen due to procedural delays or
legal technicalities in a particular case, we, judges cannot adjust our
spectacles on the nose and say 'oh, there is nothing I can do about it, in this
case as agency X or department Y is responsible for this delay or that delay or
say folding our hands, that ' the procedure code doesn't provide for this or
that, my hands are tied'.
This approach implies that the Courts have no power to do justice for that man,
over whose head the Damocles' sword is hanging for nearly a decade or more.
Justice cannot be postponed until the legislature finds its sweet-time to make
necessary amendments to the procedure code or until such time that man becomes
too old to stand trial. What a task is set before Judges! Clearly someone has a
duty to do something about this unjust situation. If the Judiciary cannot, then
who else can do something about it? In my humble view therefor, the Judiciary in
this respect may adopt a triangular approach to expedite the trial or hearing of
the case it deals with.
First, the Judiciary as an adjudicator � when dealing with such unduly long
pending cases- should bear in mind that the paramount consideration in any
adjudication is to serve not only justice, but more importantly, justice in good
Secondly, the Judiciary as a supervisor of overall proceedings of those cases
before it, should monitor and control the timely input, performance, cooperation
and co-ordination of each and every stakeholder involved in the process and
ensure a swift progress of the trial or hearing defeating all and any
delay-tactics applied by any in the process; and
Thirdly, Judiciary as a protector of the rights of the citizens has to ensure
that those rights enshrined in the glassy pages of the Constitution, statutes
and the international instruments including right to ' hearing within a
reasonable time' are properly respected, suitably applied and effectively
implemented by the authorities concerned and protect the rights of those
individuals at every stage of the proceedings and at all costs.
Now let us move on to Backlog of Cases, the culmination of Judicial Delay
the administration of justice. The term ' Backlog' refers to a situation where
there is a chronic accumulation of cases in numbers that far exceed the disposal
capacity of the courts.
As a result, the number of cases on the docket progressively increases and
perpetually exceeds the disposal capacity of the court, which eventually
contribute to the inordinate delay of justice.
When and where does delay begin?
It is difficult to discern and ascertain when and where delay begins in the
justice delivery system or when the number of delayed cases becomes a backlog in
a given jurisdiction and time-frame.
Unless a jurisdiction has set time-standards as practice direction or protocols
for the progress and disposal of a case and set self-imposed accountability at
every level within the judicial hierarchy, it is difficult to distinguish
backlog from the normal progress of cases.
In my considered view, different standards should be set at each level for the
completion of civil and criminal cases. For instance:
- Criminal cases: Let us say -Two Year
- Civil cases: Let us say -Three Years
If a case remains undetermined after the set time-limits, then it falls in the
category of backlog The focus should be given to the oldest in the backlog.
Simultaneously, reasoning for the delay and accountability ought to be inquired
into, and ascertained for troubleshooting the system.
It seems to me the major challenge the Indian Judiciary is now facing is the '
delayed justice' due to backlog of both civil and criminal cases at all levels
trial and appellate.
In my humble view, using visioning exercise Judiciary after collecting all
relevant data and doing necessary research, should formulate a Strategic Plan to
eliminate, control and prevent inordinate Judicial Delays
administration of justice and clear the backlog of cases, fine-tune and update
the existing system so that it is time-efficient and effective, in order to meet
the changing and challenging needs of time and public expectations by achieving
a dynamic equilibrium between the inflow and outflow in terms of the volume of
Having read and observed the peculiar facts and circumstances surrounding the
justice delivery system in India, to my mind, Backlog
has occurred at all
levels in the Judiciary, due to many factors. Some of the factors seem to have
played and still playing primary roles and others secondary but all act in
combination perpetuating the delay resulting in huge backlog.
Although I haven't
personally done any research based on observed facts and figures on the face of
the situation, it seems to me, one can easily identify the factors so also
broadly suggest solutions wherever possible, as follows:
On the remedial side one may also suggest:
- Inadequate number of Courts as well as Judges, Munsifs, Magistrates or
Judicial Officers at all levels in the Judiciary has primarily contributed
to the accumulation of workload and backlog. These numbers can be increased
and what one needs is Political Will and Necessary Budgetary allocation of Funds.
The recent enactment of The Supreme Court (Number of Judges) Amendment Bill,
2019 that increased the number of Judges in the Supreme Court from 31 to 34,
including the Chief Justice of India, is a welcome move in the right direction.
- Outdated Procedural Rules which are complex, long winded and time consuming.
Despite the procedure to secure our constitutional rights in the higher
judiciary is efficient, effective and easily accessible, the procedure for
protecting the ordinary civil rights of a common man at lower level, is not.
Just as the pick and shovel is no longer suitable for the winning of coal, as
Lord Denning once mentioned, so also the procedural law of the 19th and 20th
Century is not suitable for the winning of freedom and timely justice to an
ordinary citizen in the new age.
- Under-staffed and under-resourced Judiciary and lack of proper infrastructure
facilities such as Court Rooms, Offices, equipment's, etc. This can also be
remedied by the Government and necessary budgeting of the funds. Less budgetary
allocation should be relooked at. The budget allocated to the judiciary seems to
be between 0.08 and 0.09 per cent of the GDP.
- Some redundant practices from bygone colonial eras ought to be reviewed and
phased out. Old order changeth yielding place to new.
- Inadequate case management and case-flow-management can be improved by giving
necessary trainings and refresher course to judicial officers from time to time
using experts in the field.
- Delay in modernisation to embrace technology or failure in widely adopting ICT
(Information and Communications Technology) systems in Court administration,
case management, maintenance of records and documentation etc.
- The problem of business-like attitude from some members of the Bar and small
size of the legal professionals or lack of advocates in certain suburban or
rural jurisdictions have to be looked into.
- Lack of professional ethics and discipline by lawyers on over-commitments,
double booking of cases at the same time in different courts, and their
delay-tactics applied for repeated adjournments should be discouraged.
- Civil and Political vibrancy, at time social unrest in the country has also
given rise to increasing number of litigations. The leaders of political, social
and religious groups should also be taught on peaceful ways of ventilating their
grievances in public, not to resort to unconventional and sometimes violent ways
to show it, disregarding the rights of their fellow citizens.
- Growing litigation-culture among public and lawyers who go to Court as a first
option should be discouraged.
- To meet the need of increasing economic and financial activities due to foreign
Direct Investments, international trade and commerce, special tribunals may be
established to deal with disputes in this area that would considerably lessen
the workload of law courts.
Having said that, in my humble view:
- For instance, new protocols may be agreed upon by Judges on delay reduction
measures and time standards for disposal. Number of court-working days may be
increased. The longer period of court vacations may be relooked at.
- The Court may follow setting priority to old cases for hearing and disposal
- Part-heard cases may be heard first before starting newer ones.
- Setting a ceiling on the number of part-heard before starting new hearings.
- Prehearings may be held to screen out, unnecessary trials saving the precious
time of the Court. Plea bargain can be encouraged.
- Morale and enthusiasm among the Judges at all levels, has to be uplifted by
providing adequate remuneration and favourable conditions of employment.
Adequate administrative support may also be provided to the Judges and
- Separate Commercial Courts may be set up to handle commercial and small cause
matters in all rural districts.
- Simultaneously, Alternative Dispute Resolution Mechanism may be resorted
to and extended to all jurisdictions and put into optimum use. ADR
Settlements would substantially reduce the backlog and diminish the delay in justice delivery
- Mediation and Conciliation should be encouraged and facilitated to reduce the
workload and clear the backlog.
- Many more such problems and possible solutions are still left untouched. I hope
the law schools in India will be able to identify and provide solutions to those
problems through research and innovative measures to diminish judicial delays
and clear the backlog of cases in the state as well as national levels.
In conclusion, I would like to state that the future of the Judiciary of India
much depends on the younger generation of the legal professionals. In spite of
the myriad problems in the justice delivery system and implementation of the
necessary reforms, I am very optimistic that the increasing number of
intelligent, well-educated, well-trained and technologically well-versed
students, who are coming out of many renowned law schools each year can do it.
Many of them rise through the judicial system, which is independent and strong.
They are well shaped to occupy the position of judges in the higher judiciary in
future. Youths of great Bharat, dare to dream a Judiciary, which evolves and
shines as a centre of judicial excellence and a role model in the
region delivering justice for all, in a timely manner, inspiring public
confidence, protecting, preserving and defending the Constitution and securing
the rights of the individuals. ' Excellence is not an act but a
Thank you very much for your kind indulgence. Jai Hind!