DELAY: THE STORY SO FAR

Initiatives for systematic solutions to judicial delays and pendency

                                                                                                                                                                                                                                                                                         *Swapna Jha

Mr L N Mishra, the then Railway Minister was killed in a bomb attack in Samastipur, Bihar, on January 2, 1975. Nearly forty years later, the trial court passed the conviction order, that too after two years of holding hearings on a daily basis, on the directions of the Supreme Court. This happened in the case of a relatively important person! A lot has been done in the past four decades but more things change, more they remain the same!

This paper recapitulates some of the many reports, commissions, committees and procedures which have attempted to address this issue in order to help us learn. It also highlights best practices from other jurisdictions that have been adopted to increase the efficiency of the judicial process.

  1. Tackling judicial delays systematically: The Law Commission in its 77th and 245th Report, has dealt with arrears and delays in the lower courts and the High Courts. The 77th Commission in its report of 1978 had suggested that civil cases be treated as old pending judgment, after a year of registration and criminal cases after six months. It had also suggested procedural changes, increasing the strength of judges, having better infrastructure including facilities and several other factors, most of which could not be carried out for administrative reasons. Similarly the 245th Commission had made suggestions regarding the rate of disposal, appointment of judges on priority basis, increase in retirement age of the judges of subordinate courts, creation of special courts, periodic assessments of judicial needs and systemic reforms.

  2. More Benches of the Supreme Court: The Law Commission in its 229th Report submitted in August 2009 dealt with the need for division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai.

Article 130 of the Constitution, an enabling provision, empowers the Chief Justice of India, with the approval of the President, to appoint place or places as the seat of the Supreme Court. It was suggested that these "Cassation Benches" would deal with appeals from the High Court in their respective region and the Apex Court could then deal with constitutional issues and other cases of national importance. The accumulated backlog of cases would gradually decline as the Apex Court would deal with day to day filings and the previous backlog would get transferred to the respective zones. The report also suggested that all public interest litigations from any part of the country should be decided by the Constitution Bench to avoid contradictory orders issued and to arrest the mushrooming of cases increasingly.

The Parliamentary Standing Committee on Law and Justice in its 2nd, 6th and 15th report repeatedly suggested that in order to promote speedy justice available to the common man, benches of the Supreme Court have to be established in the Southern, Western and North-Eastern parts of the country. In its 20th, 26th and 28th reports, the Standing Committee suggested that a bench of the Supreme Court should be established at least in Chennai on trial basis. Despite these reports, the Apex Court has so far not agreed with the suggestion.

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Recently, Mr. V Vasanthakumar has approached the Apex Court vide WP No 36/2016 demanding the establishment of a National Court of Appeal (NCA) that would act as an intermediate forum between the Supreme Court and the various High Courts of India. He has suggested in his PIL to carve out the NCA from the Apex Court, and set it up, through regional benches, in Chennai, Mumbai and Kolkata. With the new court taking over the appeal cases, the Supreme Court would be able to focus on those cases which require an interpretation of the Constitution.Interestingly, the Supreme Court has not only issued notice to the Union of India but also proposed to refer questions of law concerning the establishment of such a court to a constitution bench.

(In an earlier case in 2014 it was communicated to Mr. Vasanthakumar that it was not possible to establish NCA because such an idea had previously been opposed by successive Chief Justices of India and that an NCA would "completely change the constitution of the Supreme Court")

  • Reducing litigation between arms of the Government: In order to cut down on cost of litigation between various arms of the Government, save time of the Courts and to put a curb on waste of public money incurred in such litigations the Supreme Court in ONGC I (SCC432) asked the GOI and the Cabinet Secretary to ensure that such instances did not occur in future. The Supreme Court cautioned that "Public Sector Undertakings of Central Government and the Union of India should not fight their litigations in Court". Taking this further, in ONGC -II (SCC 541) the Court directed the Government of India "to set up a Committee consisting of representatives from the Ministry of Industry, Bureau of Public Enterprises and Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation". The Court cast an obligation on each Court and Tribunal to not entertain any such dispute where the clearance from the Committee had not been obtained. Thus the Supreme Court introduced a new system of dispute resolution, which, if handled well, could not only decrease litigation but also save wastage of public money, Courts time and other resources.

Unfortunately, the Committee on Disputes, which was to ensure that resources of the State were not frittered away in inter se litigations between entities of the State, could not handle the mammoth task assigned to it. Thus, the Court had to recall its earlier order and wind up the Committee, which if still in existence would have led to major decline in litigation and thus reduced pendency.

  • Special divisions in High Courts for commercial disputes: The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 has been enacted to provide for the constitution of Commercial Courts/Division and Commercial Appellate Division in the High Courts for adjudicating commercial disputes and connected matters. Equivalent to district courts, these commercial courts seek to expedite settlement of commercial disputes and improve ease of doing business. Its success however is critically dependent on how well the states respond to the need for setting up new courts and divisions. Other factors which may pose challenges in implementation of the Act are funds for setting up of these courts, low financial threshold and inclusion of a wide range of issues under the ambit of commercial disputes. If the object of this Act is achieved, it will certainly decrease pendency of cases and help in imparting justice, though to the wealthy litigants.

5.  Increasing access to justice for the marginalized groups:

This is an initiative to strengthen access to justice for the poor, marginalized castes and tribal communities and religious minorities carried out in partnership between the Department of Justice and the UNDP. The project began in 2006 with a preparatory phase, along with SAJI (Strengthened Access to Justice in India) to carry out a justice sector diagnosis, identify entry points and support innovative small pilots to identify good initiatives for replication. Based on the lessons and results of the first phase and an extensive design mission, a four year project from 2008 to 2012 was developed. The project is being implemented in the states of Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Orissa, Rajasthan and Uttar Pradesh as well as at the national level with key institutions. Based on the outputs received, it may be replicated in other states.

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6.  Making right to justice a fundamental right:

It was reported in 2010-11 that the Union Law Ministry had come up with a proposal to make Right to Justice a guaranteed right under the constitution, which would have entitled every citizen of the country to time-bound justice, ensuring right to acquittal if trial did not commence within a specified time period. The ministry also planned to institutionalise the public interest litigation and streamline the system of 'letter petition,' the process of a citizen activating the court by simply writing a letter in matters concerning violation of fundamental rights. Another striking feature of the proposed law was that an undertrial would be entitled to be released on bail after spending a specified time period in jail. Unfortunately, this proposal also got lost in the web of bureaucratic inaction.

7.  E-Court Project:

The E-project followed a report submitted by the E-committee on national policy & technology in the Indian judiciary. Under the National E-Governance Plan (NeGP), it was proposed to implement ICT in judiciary in three phases over a period of five years on a mission mode project. The project scope was to develop, deliver, install and implement automated decision making and decision support system in 700 courts of Delhi, Bombay, Kolkata & Chennai; 900 courts in the 29 capital city courts of states and UTs and 13000 district and subordinate courts.

In the first phase, computer rooms & judicial service centres had to be set up in all 2500 court complexes. About 15,000 judicial officers were to be provided with laptops. Digital inter-connectivity was to be established between all Courts from the taluk level to the Apex Court. The project also aimed at creation of e-filing facility in the Supreme Court & High Courts. The first phase also envisaged development of comprehensive & integrated customised software application for the entire judicial system with regional languages support.

In the second phase, it was envisaged to provide ICT coverage of judicial process including filing, execution & all administrative activities.

In third phase, it had to create information gateways between Courts & public agencies & departments. The project was expected to lead to complete demystification of the adjudicatory process thereby ensuring transparency, accountability & cost-effectiveness.

It is ironic that the project, which was undertaken to help judicial administrations of the Courts in streamlining their day-to-day activities has been unable to achieve most of the goals set out in it. Now the next plan approved by the executive has similar visions and is typically very far from the expected results outlined in the Policy Action Plan Document Phase II (approved).

(The E-Courts project has been critiqued earlier in this issue) Best practices from other jurisdictions:

                                                                                                                                                                                                                                                                                                           [ 35 ]


 

1.  Fast Track List in addition to fast track courts:

To address the issues of costs and delay the Federal Court of Australia introduced a 'Fast Track List'. The list came into effect on 1 May 2007, in the Victoria District Registry of the Court as a pilot scheme.

The key elements of the fast track list is to streamline Court procedures and reduce the costs of litigation significantly. Proceedings arising out of or relating to commercial transactions, important issue in trade or commerce or personal insolvency, the construction of commercial documents, intellectual property rights, apart from patents or such other commercial matters as the presiding judge may direct are issues that can be entered into the fast track list. Matter whose trials are not likely to exceed five days may also be included in the fast track list. The fast track list excludes proceedings that would otherwise be allocated to the admiralty, corporations or taxation panel.

2. Increase in the retirement age of higher judiciary:

The practice in USA can be adopted as an interim measure to deal with the vacancy in High Courts till the number of judges are adequate to tackle the pendency in higher Judiciary.

3. Simple measures on the part of the bar and bench to reduce pendency:

A seemingly endemic cause for delay is the failure of parties to adhere to the timelines that the Court itself has set, either by its rules or by specific order. Judges are reluctant to take strong action for non-adherence to time limits because to do so will often have the effect of penalising the client for the default of its lawyers. Unless it is unavoidable, the counsels should try not to seek adjournments as a measure of self-discipline.

Conclusion:

It is clear that several suggestions are yet to be implemented or are being implemented at a slow pace in a piecemeal manner. Some new initiatives or innovations would be welcome. Any single administrative or procedural measure or increasing the number of courts and judges may not lead us to the solution. However, several measures combined together along with efficient use of judicial time, cooperation of the bar and adoption of progressive measures may help.

At the same time, we need to bear in mind that suggestions for improvement, creation of more Courts, increasing the number as well as retirement age of the judges, will fail to yield the desired results, if our Courts are not freed of heavy backlog of pending cases. For all these measures to be effective, the Courts or at-least some of them will have to begin the process with a clean slate. In the alternative, all measures will be ineffective and palliative in nature, as the new cases may be embroiled in the delay caused by previous pending cases.

We, the litigants, the lawyers, the judiciary, executive and the legislature need to come together and combine our efforts to enjoy the results that we dream of in a democratic manner. Blaming each other or lamenting the sad state of affairs will only lead to a further wastage of resources.

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*Swapna is Senior Legal Consultant with Common Cause 

Volume: Vol. XXXV No. 1
January-March, 2016