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The Lagging Indian Judiciary

The laws are codified, and different types of punishment are given depending upon the crime of the culprit. The Indian judiciary comprises levels of judicial bodies in India. The hierarchy is as follows, The Supreme Court, The High Courts, The District Courts, The Village Courts/Panchayats.

All these courts have their jurisdictions and are to follow the laws according to the Constitution of India. Scrutinising any act of the legislature or the executive, who otherwise, are free to enact or implement these, from overstepping the boundaries set for them by the Constitution. The Indian judicial system is independent from legislative and executive bodies in India.

The most important aspect in a democracy is that all individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. The judiciary is more important than ever now because injustice against people has risen to a great extent in India.

The citizens of India need to be monitored for their crimes and be punished for them so everyone feels a sense of safety. Various issues of low judges strength, appointment problem, less number of high courts, less use of technology, weak subordinate courts, distant justice, corruption, pending cases, lack of transparency and Costly justice in the judiciary cannot be avoided. Thus if the judicial system removes these backlogs, the faith of the common person in the judiciary may be restored before it's completely lost.

Objectives of Study
Identify the causes for pendency of court cases in High Courts and Subordinate Courts by analyzing a sample of cases. Understand the pattern, if any, of case pendency for each class of cases. Identify principles to be adopted for reducing pendency and thereby improving court management.

Body
The Supreme Court of India comprises one Chief Justice and 30 Judges, the selection of whom is done through the collegium system. The main function of the Supreme Court is to review the judgment given by the High Courts, however one can also directly file a petition in the Supreme Court. There are 25 High Courts situated in different states and union territories.

The High Courts have their jurisdictions limited to their related states or union territories. A petitioner can appeal to a High Court as per article 226 of the Constitution. The district courts are established by the state governments in a different district of the states depending on the population and number of cases.

Pending cases leading to delayed justice
As on March 30, 2020, the Supreme Court has approximately 61,000 pending cases, official figures say. The high courts face a backlog of more than 40 lakh cases, and all subordinate courts together are yet to dispose of around 3 crore cases. At all three levels, courts dispose of fewer cases than are filed. The number of pending cases keeps growing, litigants face even dimmer justice. The Indian judicial system is unable to provide timely justice due to the huge backlog of cases.

In September 2017, a special court sentenced gangster Abu Salem and others for the 1993 Mumbai bomb blasts. It took 25 years for the Indian judiciary to reach the stage of final judgement for a person who had perpetrated one of the bloodiest acts of terrorism on Indian soil.

Cases from session courts move to High courts then to SC, this process takes 10-20 years. Civil Revision Petitions are decided in 77 days on an average in the High Court of Bombay, Civil Appeals take 2,303 days to be decided on average. The number of hearings and the time period taken to dispose of cases across the system suggest that there is a serious problem of cases management in procedure law in India .One possible explanation for the numbers discussed above is that adjournments are granted too easily and freely,and in the absence of a fixed time table to dispose of cases leads to delays in disposing the case.

Putting light on Article 21 of the constitution which is supposed to be a guarantor of the protection of life and personal liberty. How does one claim the guarantee if the path to seeking it is slow. Timely delivery of justice is part of human rights. Denial of speedy justice is a threat to public confidence. Speedy Trial is a must.

If a case lingers for a long time and justice is not delivered to the rightful side then the whole purpose of law and justice gets frustrated. Hence, the right to speedy trial has rightly been remarked to flow from the right to life guaranteed under Article 21 of the Constitution.

In Hussain vs Union Of India, the appellants contention was regarding the long period of custody, they were entitled to bail as speedy trial is their fundamental right. The appeals were disposed off by directing that the pending trial and the pending appeal may be disposed of within six months. The Apex court held that the High Courts may issue directions to subordinate courts that bail applications were to be disposed of normally within one week.

The Magisterial trials, where accused were in custody, be concluded within six months and sessions trials where accused are in custody are concluded within two years. Efforts were to be made to dispose of all cases which are five years old by the end of the year. These timelines are the touchstone for assessment of judicial performance in annual confidential reports. The High Courts were requested to ensure that bail applications filed before them are to be decided within one month and all criminal appeals where accused are in custody for more than five years are concluded at the earliest.

The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts. The Apex court held that the court can always issue directions to augment and strengthen investigating machinery, setting-up of new courts, building new courthouses, providing more staff and equipment to the courts, appointment of additional judges and other measures as are necessary for the speedy trial.

The Right to Speedy Trial is a Constitutional Right in developed nations of the United States and Canada. In India the Supreme Court in its landmark judgment of Hussainara Khatoon v. Home Secretary State of Bihar held speedy trial as part of Article 21 of the Constitution guaranteeing right to life and liberty. The case also observed that if a person is deprived of his liberty under a procedure which is not 'reasonable fair and just', such deprivation would be violative of his Fundamental Right under Article 21 and he would be entitled to enforce such Fundamental Right and secure his release. This case was of the state of undertrial prisoners in Bihar who were languishing in jail for several years.

It is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases. When our government will not make any efforts to increase the efficiency and effectiveness of our courts. The mission is to serve society. The mission would not be achieved if the litigant who is waiting in the queue does not get his turn for a long long time.

Rather the consequences are increasing daily which are the common man's faith in the justice system is at an all time low, denial of justice to the poor man, foreign investors are increasingly doubtful about the timely delivery of justice, which affects the success of programs like Make in India. Judiciary being unable to handle the avalanche of litigation.

Low judges strength and appointment problem
As on 01.04.2020, Calculating the average quantity of people and number of judges. For example, the capital of India, Delhi, its High Court has only 34 judges and has a population of around 2 crore as on 01.04.2020. Dividing 2 crore by 34 the result is 5,88,236. Hence a single judge to handle 5,88,236. The ratio clearly proves the clear reason for a delay in justice due to the lack in numbers as well.

The Sanctioned strength, Working Strength and Vacancies of Judges in the Supreme Court of India and the High Courts as on 01.04.2020 are duely to be noted. In the Supreme Court of India only 34 is the sanctioned strength which is completely outnumbered for a population of 140 billion. These are the numbers of the total Sanctioned strength, Working Strength and Vacancies.
 
Name of the court SS WS VAC
Allahabad 160 104 56
Andhra Pradesh 37 18 19
Bombay 94 70 24
Calcutta 72 40 32
Chhattisgarh 22 15 7
Delhi 60 34 26
Gauhati 24 21 3
Gujarat 52 29 23
Himachal Pradesh 13 9 4
Common High Court for the UT of Jammu and Kashmir and UT of Ladakh 17 9 8
Jharkhand 25 18 7
Karnataka 62 41 21
Kerala 47 37 10
Madhya Pradesh 53 31 22
Madras 75 54 21
Manipur 5 5 0
Meghalaya 4 4 0
Orissa 27 14 13
Patna 53 25 28
Punjab& Haryana 85 55 30
Rajasthan 50 26 24
Sikkim 3 3 0
Telangana 24 13 11
Tripura 4 4 0
Uttarakhand 11 11 0
Total 1079 690 389

These shocking numbers for a population of 140 billion are inefficient, ineffective and at the present rate of disposal civil cases by these number of judges would never be disposed of and criminal cases will take more than 30 years in calculations.

The previous  Chief Justice Ranjan Gogoi on October 22, 2019 had taken note of over 5,000 vacant posts of judicial officers in lower courts and lack of infrastructure for judges, litigants and advocates in such court complexes.

The serious issue lies in the place where the common man comes in the hope for justice where the vacancies are more than 5000 in trial court how can there be timely justice.

According to memorandum of procedure for appointment of judges in the high courts and the apex court, appointments should be initiated at least six months before a vacancy arises and six weeks of time is then specified for the State to send recommendation to the Union Law Minister, after which the brief is to be sent to the Supreme Court collegium in four weeks. Once the collegium clears the names, the Law Ministry needs to put up the recommendations to the Prime Minister in three weeks who will in turn advise the President. Thereafter, since no time limit is prescribed, delays invariably take place at this level bringing the process to a standstill.

Hence, the procedural delay. The whole system is so slow that it leads to a tussle between executive and judiciary over who should be appointing judges. Hence, a simple task of appointment leads to delay and creation of problems. 40 percent of seats in the high Courts are vacant and vacancy has never been below 20 per cent in the last decade. If the vacancies are filled, pendency would go down and make the justice delivery system efficient.

Less number of high courts
Budget allocation for the judiciary is just 0.2 percent of the GDP. The subordinate judiciary has been working under a deficiency of 5,018 courtrooms because existing 15,540 court halls are insufficient to cater to the strength of 20,558 judicial officers as on 31.12.2015.

Less use of technology
Judiciary is not incorporating much use of technology. A huge amount of paperwork is involved. This is a method of research to calculate how much paper is being used in a year. Every year, over 60,000 cases are presented before the Supreme Court of India. Each document in each case has to be filed in a specific format. For example, each document can only be typed in a 13-14 font size. They must also have a 3 cm margin and be double-spaced. However, the most banal rule seems to be that material can only be printed on ONE side of the paper.

In Earlier times, due to low paper and ink quality, the ink printed on one side of the paper would seep on to the other side, making reading difficult. But why continue with this rule in an age of superior quality printers and paper. According to an estimate by IndiaSpend, each case requires 8 sets of files, and each file has about 100 pieces of paper. So the paper used by the Supreme court in a year is:  60,000 x 8 x 100 = 48 MILLION PAPERS (Approx).

Adding the 113 thousand cases the Indian high courts hear each month. Assuming 9 months of functioning for the High Courts (accounting for court holidays) and again, 8 files per case and 100 papers in each file, the estimated number for all high courts in a year is: 1,13,000 x 9 x 8 x 100 = 813 MILLION PAPERS. So, the tally as of now, with the Supreme Court and the high courts, is 861 MILLION PAPERS A YEAR! Still need to add the lower courts to the list.

These courts hear about 12.5 million cases a year. That's another 10 billion sheets. So the total paper usage in all of India's judiciary, in a year, is: 861 MILLION + 10 BILLION = 11 BILLION (APPROX.) That's how much paper our legal system uses in a year. One tree can be chopped and pulped to give us 8,333 sheets of virgin paper. And, it requires approximately 10 litres of water to produce one sheet of paper. So, the courts in our country use up 1.3 MILLION TREES & 109 BILLION LITRES OF WATER in a  year, JUST FOR PAPER!

 Now, this is not to say that these papers are useless and used without any reason, but the amount of resources used could be brought down drastically if some slight changes are made in the courts' usage patterns. For example, if we printed on both sides, then the water saved would be enough for all of Mumbai for FOURTEEN WHOLE DAYS.

Just Imagine if we use no paper at all and the paper book and all the preliminaries are e-filed we could save all that paper, water and cost of it.

Lack of transparency
There have been many debates around all over the nation regarding the Collegium system and the new system that the government wants to introduce for the appointment of judges, the NJAC. Well, be it the collegium system or the NJAC, none seem to be transparent enough to make the selection process of judges clear and understandable to the common public.

All democracies are swiftly moving toward an open government and a citizen's right to know- an international trend increasingly being supported by judicial decisions. Further, the right to know is a part of the freedom of speech and expression and the present secretive system, as implemented by the collegium system, violates this fundamental right. The principle of open trials and justice is highly essential for the fair administration of justice.

The current government led by Prime Minister Modi states that the introduction of NJAC shall be more transparent in appointment of judges. The supreme court of India, however, denied the fact and said there is a need for the even higher level of law for the appointment of judges as NJAC is not perfect. According to the SC, the bar council was invited to amend the NJAC saying that the committee must comprise the Chief Justice of India and four senior judges of the supreme court.

Well, let's say on this matter the government and the supreme court stand face to face, but the fact is still unanswered whether the stated amendment or even the current proposal bring transparency in the selection of judges and make the framework clear to the common public?

Accused under trial
A major drawback that arises from the above-stated drawbacks is the under trials of the accused. Precisely, for those who have committed a crime, it is OK, but is it fair for an innocent to spend more time in jail just for waiting for his trial? The Indian jails are full of people under trials; they are confined to the jails till their case comes to a definite conclusion. Mostly, they end up spending more time in jail than the actual term that might have been awarded to them had the case been decided at a time and, assuming it was decided against them. Moreover, all the expenses, pain and agony that are used by them to defend themselves in courts are worse than serving the actual sentence.

Under trials are not guilty till convicted. On the other hand, the rich and powerful people can bring the police to their sides, and the police can harass or silence inconvenienced and poor persons, during the long ordeals in the courts. As per the latest Prison Statistics India 2015 Report released by the National Crime Record Bureau (NCRB), 67.2 percent of our total prison population comprises under trial prisoners.

That means, that 2 out of every 3 prisoners in India is under trial, i.e. a person who has been accused or charged with committing an offence, but has not been convicted and is still, presumed innocent. On the civil side, there are consequences to constitutional rights among other issues. High pendency and delays have economic costs due to lost days and state of suspension of business. It is no wonder that India ranks poorly on the Ease of Doing Business Index developed by the World Bank Group. Apart from inefficiencies from government and public administration, the justice system also has a role due to laxity on contract enforcement.

Distant & costly justice
When the victim is not economically well off, they need to suffer as they are financially weak and hence cannot afford high profile lawyers who can win the case in a limited span of time. Meanwhile, the rich can easily afford expensive lawyers and change the course of dispensation of justice in their favour (not necessarily true if the lawyer follows ethical standards). Only one Supreme Court with no other branch is an issue for many north-east and South Indian states. Appeals to SC becomes much more hectic.

Corruption
Like the other pillars of democracy, the executive and the legislative, the judiciary too (in some instances) has been found to engage in corruption. There has not been established any system of accountability. In the case of judicial processes, even the media is unable to give a proper and clear picture of the corruption scenario. The media seems to be more focused on exposing corruption in other fields, especially the executive. A minister taking a bribe or distributing money during elections may become a headline, but a courtroom clerk taking a bribe and altering the date of the trial remains unnoticed.

As per the constitutional provision, there is no provision yet for registering an FIR against a judge who has taken bribe without taking the permission of the Chief Justice of India. Obviously, visiting the CJI, seeking his permission, and then registering an FIR is not what a poor man will prefer to do. This will prove  to be more expensive and time consuming for him, besides the court and lawyer's expenses.

The Professional arrogance of the judges whereby judges do not do their homework and arrive at decisions of grave importance while ignoring precedent or judicial principle delays justice and adds to trial's spam. In 2011, Soumitra Sen, a former judge at the Calcutta High Court became the first judge in India to be impeached by the Rajya Sabha alleged for misappropriation of funds.

Conclusion
As a part of the solution, an All India recruitment exam (All India judicial services) may help in resolving the issue of appointment of judges. There is a need to use better technology for the recording of statements, there should be CCTVs for recoveries, chromatography, microscopy, spectrography, laser techniques, X-Rays etc. If the statements are video recorded, then there would be much greater credibility.

There is a need for court administrators to manage the entire process so that the lawyers and judges can concentrate on the cases they are assigned. Several hundreds of archaic and old laws have been done away with but still, there are many which require attention. This will ultimately lead to a decline in the number of cases that are being filed because most of the laws will not be there in the books.

There can be a Court of Appeal between the High Courts and the Supreme Court. This is present in Canada, South Africa and a couple of other countries where the normal cases will go to the Court of Appeal and these can be decided there itself. Only Constitutional cases shall go to the Supreme Court which have taken a backseat. There have been recommendations from the Law Commission of India related to this in the past as well. E-courts are being run on a trial basis. These will help in filing the documents electronically.

Establishing fast-track courts for cases on sensitive issues like rape, corruption and high profile cases so that justice is seen to be delivered and people maintain faith in the system. Setting up of special courts like property courts, commercial courts and e-courts for speedy disposal of cases. Further promoting the concept of Lok Adalat, Court on Wheels, Gram Nyaya Panchayat. In the first instance itself, most people should get justice. The time taken in courts should be rationed. A judge should be given a workload like 10 cases per day and they have to be fully solved.

However much the Judiciary pushes the government, it will not work. The default is not in the Judiciary as they are trying to provide justice within their limits. But it is the government that we choose that is neither making sure that the judiciary is well equipped or well numbered. Another reason why the change is not happening is because the government of India is the largest litigant in the country itself. How can we bring about a change when our own government has over half the pending cases in our country.

The courts are crowded, overworked and ultimately there are dates without outcomes. Cases remain pending for a long time because of which people lose faith in the judiciary. As far as reforms are concerned, they cannot be implemented until and unless the existing system is used to the best. Every step has to be in sync with each other to reduce the burden that the judiciary faces. Also, there is a need to bring a societal and cultural change of obeying the law, respecting it and working in accordance with the law. Justice delayed is justice denied and Justice hurried is justice buried.

A process driven approach with the help of scientifically collected data is the way forward in bringing down the pendency rates in Indian courts. This methodical approach would uncover patterns hidden in the huge number of cases stuck in our courtrooms, particularly lower courts where the bulk of the cases lie. Such systemic changes would complement the motivation, commitment and positive attitude in overcoming the challenges in times to come.

Bibliography:
  1. https://economictimes.indiatimes.com/news/politics-and-nation/hidden-factors-that-slow-our-courts-and-delay-justice/articleshow/57887726.cms
  2. Hussain vs Union Of India AIR 2017 SC 1362. 
  3. Hussainara Khatoon (IV) v Home Secretary, State of Bihar 1980 1 SCC 98
  4. https://doj.gov.in/appointment-of-judges
  5. https://www.business-standard.com/article/pti-stories/vacancies-in-trial-courts-sc-seeks-reports-from-states-uts-hcs-on-filling-up-of-posts-infra-119102401555_1.html

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