By Vijay L. Kelkar & Pradeep S. Mehta
A huge pile-up of cases has kept the judiciary overloaded while much can be done to offer India relief by clearing the backlog. Here’s a guide.
A recent report says that there are over 40 million cases pending in India’s judicial system. In the slothful manner that their adjudication takes place, it may take aeons to clear the backlog. There are many reasons for this terrible situation in a realm as vital as justice and therefore multiple remedial measures are required to arrest the delays.
One of these measures is granting no more than the three adjournments. Alas, this is practised more in the breach, thus adding to delays in the disposal of cases and keeping our courts clogged. It drew criticism from Chief Justice of India D.Y. Chandrachud when the Supreme Court celebrated its 75th anniversary recently and he expressed his thoughts on reducing delays.
What needs to be done? Judicial delays make life miserable for both businesses and citizens. This is the third in a series of articles which we are writing to persuade the ecosystem to reform and reduce delays in our system.
The unique feature of the three-adjournment rule is that it was introduced as a part of our ‘ease of doing business’ reforms within the justice delivery system. This provision under the law states that a maximum of three adjournments can be given during the hearing of a lawsuit. However, the prescribed protocol of permitting a maximum of three adjournments per case is disregarded in more than half the cases being addressed by courts. While it appears that some courts are attempting to follow the rule and are also publishing monthly data on adjournments granted per matter, broader efforts at the institutional level are required for the judiciary to stop granting a fourth adjournment. For example, we should use a monetary disincentive by imposing a levy of ₹10,000 for the first adjournment sought by a disputant and double that sum for every subsequent one.
Why do lawyers seek more than three adjournments and courts grant these in spite of the fact that it is irregular? Many lawyers, especially senior ones, have many briefs on their hands, and when conflicting timings of case hearings arise in different courts, their juniors are asked to seek fresh dates. Most often, judges oblige. Lawyers on the opposite side tend to play ball, as they themselves may need such favours in some other matter. This acts as an unwritten code, but disputants are the victims of frequent adjournments for the calendar convenience of a few professionals.
Let’s analyse the contours of the 44 million cases pending in different courts in the country today. Lawyers have not appeared in court in more than 7.5 million cases. In 4.1 million cases, the accused has been declared a fugitive, and in 3.2 million cases, witnesses have not reached courts. In around 3.6 million cases, vital records are either missing or documents are not available.
Effective court management is crucial for the smooth and efficient operation of the judicial system. The primary objective of court management is to guarantee the fair and timely delivery of justice. In developed countries with functional systems, in most cases, the judge confers with lawyers on both sides on clear timelines for each step as soon as a matter is lodged. Alas, this is not practised in India—and it calls for thought.
While India has a National Courts Management Systems (NCMS) policy and several states have followed suit, its implementation in letter as well as spirit will hold the key. A National Framework of Court Excellence (NFCE) has also been developed to establish quantifiable performance benchmarks for Indian courts, tackling concerns related to quality, responsiveness and timeliness.
Compliance and progress reports on the NFCE will usher in transparency and accountability in judicial processes. E-filing is another useful approach, as we found during the covid pandemic, involving the use of video conferencing for regular case management proceedings to help expedite dispute resolution.
The public’s trust in the judiciary would have suffered due to its apparently decreasing reliability and dependability, which could lead to increased social, political and economic tensions in India. For instance, at the close of 2021, Indian prisons were holding over 500,000 inmates, 77.1% of whom were awaiting trial. This situation has prompted a World Bank report to label the Indian judiciary as “notoriously inefficient.” Serious attempts have to be made that can help to improve the current situation. For instance, simplifying and updating the rules governing court management.
Also, in many instances, judicial officers in joint courts are typically assigned a team comprising one bench clerk, one assistant bench clerk, one stenographer and two peons. Regardless of whether there are 800 or 8,000 files, the same staff is responsible for handling them. The rise in the number of court files does not correspond with an increase in the staff count. This needs remedial action, with appropriate allocations.
The NCMS policy advocates the incorporation of technology to enhance court operations, but it must be enforced vigorously for proper application. It should also include a social audit, which would help, as we have seen in many other policies. This will enhance the efficiency of the court system while safeguarding the rights of all parties and delivering justice in a fair and unbiased manner.
(Amol Kulkarni and Arima Pankaj of CUTS contributed to this article.)
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