Indian judiciary, once regarded as the bedrock of Indian democracy, finds itself navigating through turbulent waters. Public has lost faith in it as it is absolutely out of tune with the present-day aspirations of people. The Supreme Court seems to have no or little concern for the crores of litigants whose cases are pending in different Indian courts. The number of people who look up to the courts for impartial and timely adjudication is small and fast diminishing. Outgoing CJIs, as a ritual, deliver laudable speeches which are self-congratulatory in nature but they never talk about the challenges faced by the system which have made it almost dysfunctional and, still worse, which is looked down upon and ridiculed by people at large.
Various Judicial Commissions have made recommendations for improvement in the disposal rate of cases but, unfortunately, these remain in files that gather dust in some archives. Commissions, seemingly, are appointed to keep favorites of the government employed and not for seeking solutions to the serious problems faced by the judiciary. It is a shame that the higher judiciary of the largest democracy of the world should be perceived as an exclusive adjudication body meant to largely to resolve matters that has the interest of Central and State Governments, corporates and the rich at stake. Approaching courts for redressal has become completely out of reach for the common man as the solicitors and advocates get into the extortionist, unethical and unconscionable fee agreements. Professor K T Shah warned of this happening when the subject of judiciary was being discussed in Constituent Assembly in 1948. He had serious reservations on the proposed system. He was not even allowed to elaborate.
Pendency of cases by definition implies the delay in the disposal of cases to provide justice to the aggrieved. Judiciary in India works at three levels: federal or Supreme Court; State High Courts; and District Level Courts. As on date, the total number of cases pending at all levels is about 52 millions, including over 180,000 pending for more than 30 years in the Districts and High Courts. 45 million out of 52 million are pending in District Courts alone. Clearly, it’s a case of criminal negligence on the part of our Supreme Court as it shows no concern for the suffering of such a large body of people. Our higher judiciary has clearly established, through its conduct, that it is inward-looking, has a tendency of being self-indulgent, and is self-congratulatory.
The question that most people raise is on the need of the judges going on long vacations as a ritual every year. Courts bringing down their shutters for prolonged periods every year is indeed preposterous. This obnoxious legacy of long vacations for judges was started by the British who found the Indian summers too oppressive. While the government and the secretariat shifted to Shimla during summers, it allowed the judges to go on long vacations since the courts could not be shifted because of the interaction that these were required to have with people. Even though the British left India close to eight decades back, the practice of judges continuing to go on long vacations remains intact. Over the years the infrastructure in courtrooms and judges’ chambers has improved and the air conditioners are in use to keep the judges comfortable and in the right frame of mind to pass judgments that are objective and fair. Surprisingly, their conscience has still not stirred to make them think about the suffering of the poor and volunteer to give up this rather unsympathetic practice. Should the judges have longer vacation than other professions? It is believed that the very high pendency of cases alone has a more than 2 percent impact on the GDP to our country. A report by NITI Aayog published in 2018, mentioned that as per the prevailing rate of disposal of cases, it will take 324 years to clear the backlog – and that too provided new cases were not added.
Is defies logic and administrative fairplay that judges should be sitting at home or vacationing for more than twice the number of days as compared to other wealth generating professionals. Our Supreme Court works for only 193 days in a year. High Courts and subordinate courts work for only 210 and 240 days respectively. Most people in the country work for over 280 days. In 2014, the then CJI proposed to make judges work through the year (his proposal was to skip the long vacation of judges} to help reduce backlog of cases. This was proposed to be done without increasing the working hours or the days of the individual judges and without their sacrificing their number of days of vacation. It only meant that judges would be going on vacation/holidays in different periods of the year as per their own choice. According to him, the Bar Association of India turned down the proposal because it would inconvenience the advocates who would be required to work throughout the year. The refusal of advocates to fall in line showed complete lack of compassion. Advocates, working for the petitioners and the defendants, are in both cases expected to be the officers of the court and that makes it necessary for them appear in court, as and when required, to make the justice dispensation system efficient and reduce the seemingly never-ending suffering of litigants. The proposal of the then CJI was only to stagger the vacations for judges and their staff to ensure continued working of the courts. In addition to vacation, the reduction in holidays for the judges which are far in excess of the acceptable numbers should also be considered. In fact, it is the judges who on their own should be giving themselves targets in reduction of pendency and increasing the number of working days and hours should be the first move in the direction. Judges are expected to decide between right and wrong and are, in the least, expected to have the sensitivity and concern about the people who are waiting for years and decades for the verdict and take a call if they are right in taking these long vacations and holidays. Judges are not just umpires; they have a societal role to play. When the famous British judge, Lord Denning, said “A judge is not a servant of the government; he is a servant of justice, a servant of the people”, he clearly was indicating the responsibility of judges towards people. Also, people look upon judiciary as the last hope in the event other institutions are not able to protect their rights. The institution that is supposed to be the last hope of people cannot be itself in a ‘hopeless’ plight
According to a report published by Dushyant Mahadik of the Administrative Staff College of India, most cases listed on daily cause list, in the lower courts, do not get heard on the given date. A cursory look at the case status and history of case hearings, show a high percentage of the court time being wasted due to absenteeism or lack of preparedness on the part of parties involved. Studies of a sample of cases with the help of roznama (register of cases) show meaningful court business was conducted only for 21 percent of the cases on the given date. In other words, if a case is listed for hearing, there is only one in five chance that the case proceeding will actually rake place on the given date. Why should the courts list 100 cases for hearing when it knows fully well that only 20 to 25 cases will actually be heard. This is another annoying practice which leads to unproductive use of judges’ time on allocating alternative dates for 75% cases that are not heard. This practice also causes over-crowding of court premises and inconveniences visitors as there are limited common facilities such as toilets, canteen, sitting areas, etc being available. People who have experienced visiting the district courts recall their experience as highly demanding – in fact, tormenting. Some have also voiced their disgust in the discriminatory treatment meted out to the counsel of the accused vis-a-vis the prosecutors. If the accused is absent on a given date, the possibility of a non-bailable warrant being issued is very high. Whereas, there is very little sternness shown in the event of prosecutor remains absent or if he comes unprepared. People view this as discriminatory and it sends a message out that the judge has already pronounced the accused as guilty. Discrimination is also evident in granting adjournments. Cases are adjourned on the flimsiest grounds if requested by the prosecutors. The same does not hold good when defendants’ request for adjournment. This differential treatment, on the part of judges, severely undermines the cause of justice.
For the system to work efficiently, adjournments should be allowed only in force majeure situations. Every time a court hears the adjourned case, the court loses so much more time in recapitulation of the previous hearing(s). Routine adjournments have become a norm. These are initiated by the prosecutors or the defendants but, ironically, are facilitated by judges. Thus, the courts are one of the contributors to adjournments and the resultant pendency. Adjournments not only delay the justice seeking process but also substantially increase the cost of justice for the justice-seekers. The problem of adjournments has not gone unnoticed and many commissions have suggested that the cases must be heard in continuity till closure.
It’s time we adopt the practices followed by other countries that have a better record of disposal of cases. Most countries have the system wherein in the first hearing the prosecutor reads out the charges against the accused along with documents and submits the names of the witnesses for establishing the charge. The case is adjourned only to give time for the defendant to prepare the case. Number of days allowed to the case is decided by the presiding judge. Date for hearing the case is fixed that is agreeable to both the counsels representing the parties. Parties must come fully prepared to facilitate the proceedings on the given date. Case is heard in continuity till the verdict is pronounced.
By introducing the practice of hearing the cases till disposal on a continuous basis, as has been recommended by many Judicial Commissions, we should be able to reduce the time spent on hearing of each case to less than half. If lawyers are aware that they will get only one chance once hearing starts, they will be obliged to come fully prepared with their briefs. Infusion of discipline in the working of our courts and the counsels is an imperative requirement. This will also help in summoning of only those people who are involved in the case that is to be heard. The judges will also develop the responsibility of not being absent – which happens quite often.
Clearly, if: a) courts work 6 days a week and round the year; b) holidays for judges are limited to be in line with other professionals; c) judges take holidays on rotational basis to ensure courts do not close down; d) continuous process of hearing till the final disposal is adopted; e) only those cases that will actually be heard on the day are listed; and f) discipline and order is brought about in the working of all courts one would see monumental transformation in the judicial system of the country. Needless to mention that in addition to a substantial reduction in the cost of litigation, the litigants would not face the harassment and the trauma that they face because of the sloppy judicial systems and processes that have been inherited and which have only worsened over time.
It’s time our Supreme Court takes up the challenge of improving their highly tarnished image. According to a report of Supreme Court of India titled “Subordinate Judiciary – Access to Justice”, capacity constraints were the main cause for high level of pendency. While that may be so, the report does not talk about the gross inefficiency in dealing with cases in lower courts. This is because inefficiency rests on their own shoulders while the problem of insufficient judges and iinfrastructure can be easily passed on to the state governments. How convenient!
The author is a Pune based industrialist
B R Taneja
