JUDICIAL PENDENCY

IN NEWS:

• Seven impending retirements in seven months in Supreme Court may affect efforts to scale down pendency.

MORE ON NEWS:

• The retirements come at a time when the court is in the process of steadying itself after the brutal waves of pandemic.
• The Supreme Court has only recently resumed full physical hearings after two years of virtual system.
• The Supreme Court’s statistics show that 70,362 cases are pending with it as on April 1, 2022, though over 19% of them are not ready to be placed before a Bench for judicial hearing as they have not completed the required preliminaries.

CASES PENDING ACROSS ALL COURTS:

• As of September 15, 2021, over 4.5 crore cases were pending across all courts in India. 
• Of these, 87.6% cases were pending in subordinate courts and 12.3% in High Courts.
• Between 2010 and 2020, pendency across all courts grew by 2.8% annually.

• In HCs, 21% cases pending for over ten years; in subordinate courts, 23% cases for over five years.

WHAT ARE THE REASONS FOR PENDENCY?

• Vacancies in the judiciary:
  • There is a shortage of judges to decide cases. 
  • As of April 2022 the Supreme Court has two vacancies out of the sanctioned strength of 34 judges.
  • In the High Courts, 42% of the total sanctioned posts for judges were vacant (465 out of 1,098). 
  • Five High Courts (Telangana, Patna, Rajasthan, Odisha, and Delhi) had more than 50% vacancies.
  • While the lower judiciary has posts of 5,000 judges lying empty.

• Low judge to population ratio:
  • The judge-population ratio in the country which stands at only 21.03 judges per million people in 2020, which is not very appreciable.
  • While for the other countries, the ratio is about 50-70 judges per million people.

• Process of law
  • The time taken in proceedings of a case is so lengthy so the peoples sit for years outside the courtroom waiting for the court to deliver justice.
  • There are lot of hearings in a case, number of adjournments in a case, victims become frustrated of fighting for justice.
  • The accused are misusing the process of law for their benefit.
    • An Indian phenomenon called ‘luxurious litigation’:
      • As per CJI NV Ramana ‘luxurious litigation’ is a specific type of litigation wherein parties with resources attempt to frustrate the judicial process and delay it by filing numerous proceedings across the judicial system.
    • Culture of seeking adjournments:
      • As President Ram Nath Kovind said in 2018 there is a culture of seeking adjournments as a norm rather than an exception.
  • Number of appeals available in a case
    • The party which lose the case can go to appeal in higher court if they are not satisfied with judgment delivered.
    •  Appeal provisions are made to satisfy the party or to check justice but litigants made it a means to earn more money from the parties.
    • They make an appeal in every case decided by the lower court.
    • That is why the number of the pendency is increasing the high courts of state.

• Backlogs due to COVID:
  • In pre COVID 19 years, the increase in the pendency of cases in all courts used to be about 5.7 lakh cases a year.
  • In 2020 alone, it increased to an astonishing 51 lakh. It appears that if a hybrid virtual hearing model is not adopted effectively, the backlog of cases could cross 5 crore in 2022.( already reached over 4.5 crore)

• Lack of infrastructure:
  • One of the major reasons which causes more pendency of cases by slow down the process of trail is infrastructure of the courts.
  • Mr. Dipak Mishra, former chief justice of India in an interview said that main cause of the litigation pendency is lack of infrastructure for the judges, litigants and court staffs.
  • Poor funding on lower courts:
    • Criticism that money is spent on the infrastructure of higher courts while the subordinate judiciary continues to function from stuffy, ill-lit and dingy courtrooms without basic facilities for litigants, court staffers and judicial officers.
  • There are not enough courts:
    • Budgetary allocations for the whole judiciary are very low at 0.1% to 0.4% of the whole budget.
    • India needs more courts and more benches.
    • Modernization and computerization have not reached all courts.

• Lags in adoption of technology:
  • The Indian judiciary has only just arrived on the digitalization scene, a transition facilitated by the physical distancing measures implemented during the COVID-19 pandemic.
  • Also in case of Indian judiciary, technologies including machine translation, speech recognition, big data, machine learning, A.I., and block chain, is yet to play a role in improving how justice is served.

• Pendency and vacancies in tribunals and special courts:
  • Tribunals and special courts (such as Fast Track Courts and Family Courts) which were set up to ensure speedy disposal of cases also witness high pendency and vacancies.
  • For instance, at the end of 2020, 21,259 cases were pending before the National Company Law Tribunal (NCLT).  As of April 2021, the NCLT had 39 members out of a sanctioned strength of 63.
  • As on May 31, 2021, over 9.2 lakh cases were pending in 956 Fast Track Courts across 24 states/UTs (the remaining do not have functional Fast Track Courts).

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• High rate of filing of cases and low rate of disposal of cases:
  • One of the major reasons of pending cases is the number of cases increasing day by day and the disposal rate of subordinate Court is very low, because of the less number of the judges, absenteeism of judges, process of trial of a case, strikes by advocates, frequent transfer of judges etc. in subordinate courts.
  • Increase in the awareness of rights by common man:
    • One of the reasons for the high rate of filing cases is the recent socio-economic advances and the resultant awareness of legal rights, has given courage to common people to approach courts of law for justice. Eg. new mechanisms like PIL and new rights like RTI
• Litigations from the government side:
  • Reports indicate that the government is a party to 46 per cent of the cases that are pending in courts across India.
  • As per Legal Information Management and Briefing System (LIMBS), as of 21 June 2021 there are 514,915 cases involving various government departments.
• The archaic laws:
  • The archaic laws that fill up the statute books, faulty or vague drafting of laws and their multiple interpretations by various courts are also reasons for prolonged litigation.
  • Some of these laws date back to the 1880s.
• Lack of awareness about the  Alternative Dispute Resolution (ADR) Mechanisms:
  • Less use and awareness of Alternative Dispute resolution,  Lok Adalat’s, The Gram Nyayalayas act 2008, plea bargaining etc. is one of the reasons for high pendency rate due to over burden on courts.

CONSEQUENCES OF PENDING CASES

• Violation of fundamental rights:
  • Speedy trial is a fundamental right
    • In Kartar Singh vs State of Punjab case 1994, it was declared that the right to speedy trial is an essential part of fundamental right to life and liberty (Article 21).
  • In criminal cases, the impact of pendency of case is directly related to the violation of the right to equality enshrined under Article 14 of the Indian Constitution.
    • An accused under Indian law is presumed innocent unless proven guilty except in certain circumstances. Bail is a rule under the criminal procedural laws, and jail is an exception.
    • However, NCRB ‘Prison Statistics India-2020’ indicates that the number of under trials in Indian prisons crossed 75% (of 4.83 lakh prisoners).
    • This means that 3 out of 4 innocent (unless proven guilty) prisoners are in jail awaiting the disposal of the case.
    • Incarceration destroys the public reputation in Indian society despite a not guilty verdict and is also a curtailment of individual liberty.
• Affects human rights :
  • Overcrowding of the prisons, already infrastructure deficient, results in violation of human rights.
• Impact on the economy:
  • The Economic Survey 2017 pointed out that the slow resolution of economic and commercial cases was one of the biggest stumbling blocks in reviving the investment cycle in the country.
  • Impact on  ‘ease of doing business’:
    • India ranks 163rd among the 190 countries in the Enforcement Contract indicator. (Ease of doing business Index)
    • The problems that plague contract enforcement can be correlated with the current state of the judiciary system with inordinate delays.
    • Foreign investors are increasingly doubtful about the timely delivery of justice, which affects the success of programs like ‘Make in India’.
  • Economic reforms remain only on paper without the speedier justice system.
• The common man’s faith in the justice system may get affected due to delay in delivering the justice as a result of pendency in cases.
  • Corruptions increases
    • Due to the increase in pendency of cases, people many times don't fight for their rights or the wrongs caused to them.
    • Some instead of fighting the wrong, try to resolve the matter outside the court in an illegal way (e.g by bribing the police officer not to file an FIR against them.)

WAY FORWARD:

• Increase the strength of the judicial services:
  • Substantially increase the strength of the judicial services by appointing more judges at the subordinate level.
  • Institutionalising All-India Judicial Service.
    • All-India Judicial Service aims at creating a centralized cadre of District Judges who will be recruited centrally through an all-India examination.
  • Need to establish a National Judicial Infrastructure Corporation
    • To improve judicial infrastructure across the country.
    • Corporation could bring the much-needed “uniformity and standardisation” which could “revolutionise” judicial infrastructure.
  • Filling vacancy:
    • Reduce the pendency of cases by filling sanctioned judicial positions

• Improve legal framework:
  • Government must remove archaic and dysfunctional laws and reduce vagueness.
  • As Malimath Committee noted >> amendments to the Code of Criminal Procedure, the Indian Penal Code or the Indian Evidence Act are necessary to bring them in tune with the demands of time and the aspirations of the people.
• Use of technology:
  • Adopting digital solutions to aid in the disposal of cases.
    • Eg.Centre government has been implementing the e-Courts Mission Mode Project across the country and the number of computerised district and subordinate courts had increased from 13,672 to 16,845 between 2014 and 2020.
• Removing geographical barriers:
  • Set up circuit benches of the Supreme Court:
    • Multiple Law Commission and Parliamentary Committee have recommended Circuit Benches of the Supreme Court to be set up around the country.
  • Supreme Court bench in south India
    • As Bar Councils of the five southern States recommended >> a Supreme Court bench in south India
• Promote Alternate Dispute Resolution (ADR) to reduce the burden of the courts:
  • Mechanisms like ADR (Alternate Dispute Resolution), Lok Adalats, Gram Nyayalayas etc should be promoted by creating awareness about these mechanisms among the people.

PRACTICE QUESTION:

Q. Discuss the causes of high pendency rate in Indian judiciary and examine its consequences.