V.K Sharma
Justice Surya Kant, judge of the Supreme Court, speaking at an event at the Punjab and Haryana High Court, has rightly described the ever rising pendency of cases as a ‘big challenge for bar and bench both” with the arrear phenomenally rising to over four lakh cases in the High Court in 2023, from over 3 lakh cases in 2018. He, however, added that unless “quality assistance” is provided by the bar, the bench will not be able to deliver and overcome the challenge. Similarly, the Chief Justice of India, D.Y.Chandrachud, during a hearing in the Supreme Court recently, has also lamented at the practice of unnecessary adjournments, and called upon the lawyers not to reduce the apex court to a tarikh pe tarikh court “by sending requests at the drop of a hat for adjournment of cases listed for hearing”.
Both these observations made by the two judges of the top court, in one way or the other, have elicited active support from the lawyers community in timely disposal of cases, while pointing towards the grave problem of ever increasing pendency of cases at all the three levels of judiciary; the federal court, high courts and, most importantly, the subordinate courts-wherein more than 85% cases of the total pendency are languishing, taking the total number to over 4.4 crore as of now, as per the information released by the National Judicial Data Grid (NJDS). In other words, the subordinate courts are the real clogging centres for the huge arrear, which needs to be cleared in a time-bound manner to ensure speedy and timely justice to the litigants.
The latest available official data released by the Government in July this year during Question Hour in the upper house Rajya Sabha, the pendency of cases have crossed the whopping mark of 5 crore. As Law Minister Arjun Ram Meghwal has put it, over 5.2 crore cases are pending in Indian courts, namely the Supreme Court, 25 high courts across the country and the subordinate courts. A break-up of the pending cases reveal that 69,766 cases are pending in the apex court as on Ist July, 2023, 60,62,953 matters in all high courts and the huge pendency of 4,41,35,357 cases is clogged with the district courts, which is the first pedestal of seeking justice in the hierarchy of the administration of justice in India. Ironically, this is the largest pendency of cases in the world, with the district courts grabbing a gigantic share of over 85% pending cases. Unfortunately, government is the biggest litigant of the country, having 50% of the pending cases sponsored by the State.
If we recall a 2018 Niti Aayog Strategy Paper highlighting the prevailing rate of disposal of cases in our courts, it would take more than 324 years (more than three centuries) to clear the backlog. In 2018, the pending cases stood at 29 millions, which unexpectedly and alarmingly rose to the present 50 million- only a bit short of being double-in previous 5 years, which implies that the cases are rising exponentially whereas rate of disposal is decreasing dismally.
It is a million dollar question as how the Indian courts will make up the yawning gulf between the pendency and the disposal at the prevailing speed?, Shockingly, out of 5.2 cr pending cases, 1,69,000 cases are those which are long-drawn clogs pending for over 30 years at the district and high courts level. Another important question arises: If a citizen is not able to get justice in 30 years-or say during his life span, what is the reliability and efficacy of the justice delivery system? English philosopher and jurist Sir Edward Coke was right in coining the popular phrases that, “justice delayed is justice denied” and “injustice anywhere is a threat to the justice everywhere” as early as in the early 1600s. In present times too, there is no denying the fact that if we don’t get timely justice in our courts, it shakes the societal faith towards the judicial system, and Indian judicial system is no exception to it.
Furthermore, the huge pendency of cases is not only detrimental to the speedy justice delivery system and prejudicial to the rights of the justice-seekers, but it also cost 1.5% to 2% revenue to our GDP, which is a colossal loss for a developing country like India.
Analytically, the causes and reasons offered and cited for this huge pendency by various stakeholders, including the government, have remained always hackneyed, identical and mostly theoretical-which don’t give any insight or a concrete formula on how to deal with this national problem.
Law Minister Arjun Ram Meghwal says, “We have no direct role in disposal of cases”, It implies that the government has no active role in the pendency of cases. Rather, it is the judicial system, which needs to devise a fool-proof plan to clear the backlog. However, Meghwal cites some oft-repeated reasons, saying, “criminal cases function on assistance of various agencies such as police, prosecution, forensic labs, handwriting experts and medico-legal experts and complexity of facts and evidence” etc. However, this may be partially true in the context of pending criminal cases, but what about those matters of civil nature which are languishing in Indian courts for years and years together, where final disposal still appears to be distant cry. One of the most prevalent and potent reasons often cited for the pendency of cases is: Low strength of judges and judicial officers against their sanctioned strength. This reason may be justified to some extent. To illustrate, in the year 2018, there were 21.3 judges to deliver justice to one million populations, with the total strength of judges in the Supreme Court as 34, in High Courts as 1108 and in district courts as 24631. To make up the shortfall, the Law Commission and Justice V.S.Malimath Committee, in the past,had recommended to raise the strength of judges and judicial officers to 50 per million or 1 judge on 20,000 population. However, these recommendations could never see the light of the day, which could have given some relief to the over-burdened judicial system. On the contrary, in 2022, the working strength of judges drastically decreased to 14.4 per million, far below the recommended number of 50 judges. In sharp contrast to other countries, the strength of judges in India is 210 per million in Europe and 150 judges per million in America, where speedy dispensation of justice is the order of the day.
Admittedly, appointment of judges is a long-drawn process in India. Lack of coordination and cooperation is a major cause for the vacancy in higher judiciary. In the event of any disagreement between the Collegium recommendations and the appointing authority, the Union of India, the appointments are delayed for years together with names pending with the government for approval, to the loss and determent of the justice delivery system. Retirement, resignations, removal and voluntary retirements of judges further tend to aggravate the shortfall since no immediate substitutes are in place to fill the vacuum.
Undoubtedly, shortage of judges against the sanctioned strength, shortage of court staff, especially at the subordinate level, lack of infrastructure, inadequate funding and archaic Code of Criminal Procedure (CrPC) and Civil Procedure Code (CPC) making sufficient room for using adjournments as a tool to delay proceedings and abuse of the process of law are other prominent reasons for the overwhelming pendency of cases in our courts.
Adding fuel to the fire, the ever rising cases of the cheque dishonour under Section 138 of the Negotiable Instruments Act have immensely contributed towards accumulation of the clog. As per a report released in April, 2022, more than 33.44 lakh cases are pending in the courts-which registered a growth of close to 30% in only five months. This is an extremely embarrassingly high figure for a problem that is a civil liability in most of the developed world. Ironically, the dishonour of cheques was criminalised in India only in 1988 without conducting any judicial impact assessments beforehand, which backfired soon and the courts were inundated with criminal complaints, which further started having an adverse effect in disposal of other criminal cases. In most parts of the country, there are special and designated courts to deal with cheque bounce cases; still the backlog continues to swell with each passing day-primarily because of faulty provisions of NI Act. In most of the cases, sometimes, it takes many years to secure the presence of an accused before Magistrate in a cheque bounce case. Prior to that, preliminary evidence of complainant, generally, eats many dates of long durations which cause major inconvenience to the aggrieved party, besides adding to the pendency. In other words, securing presence of an accused is a very tedious and lethargic process, and the case will continue to linger on with date after date till an accused appears before the court to face trial, if at all.
To deal with the menace, a five-judge Constitution Bench of the Supreme Court had noted, in March 2021, that, “there is no doubt or dispute about the fact that matters under the Negotiable Instruments Act has posed what by now has become an intractable problem accounting for close to 30 to 40% of the pendency in the trial courts and a very high percentage in the high courts”. The cheque bounce cases, alone, constitute 8.81% of total criminal cases pending in the country, thus a major contributor to the pendency.
A close look at the functioning of the subordinate courts would reveal that despite sufficient strength of judges and judicial officers, the demon of pendency continues to rule with impunity. The most practical and ostensible reasons leading to accumulation of the pendency at the subordinate level include undue and unwarranted adjournments most due to lingering-attitude of lawyers, non-availability of clerical staff to record testimony of witnesses on the date fixed, non-supply of all case documents by the litigants to their counsels in a time-bound manner, unwanted deferment of proceedings due to leave of concerned judge/judicial officer, excessive court holidays including all Saturdays of a month, undue delay in delivering verdicts and judgments despite completion of all pleadings, non-availability of bench sometimes even during working hours, re-employment of retired judges in various commissions and tribunals who mostly tend to work at their own convenience rather than strictly adhering to the court hours, long delay in listening final arguments by concerned presiding officers thus delaying disposal of the case, long wait in filing written statement by defendant in a civil suit to unnecessary delay completion of pleadings, and, among others, lack of adequate punitive measures available to penalise the party adopting delaying tactics to cause delay in the case. Minor costs do not fit the bill to deter a party from adopting dilatory attitude.
To recapitulate, a victim or an aggrieved litigant has to wait endlessly till he gets justice, if at all, during his life. This is the major cause of pendency at the subordinate level.
Needless to say that it is high time for the justice delivery system and the government to work out a concerted and pragmatic plan to ensure speedy and timely disposal of cases. All the stakeholders, involved in the process, need to contribute jointly in evolving such a mechanism so as to dispose of cases in a time-bound manner. Judges and judicial officers must also ensure to not allow adjournments till a sufficient and cogent reason is forthcoming and complete all proceedings of the case on the date fixed for the purpose. A comprehensive pendency-clearance plan needs to be framed implemented in letter and spirit across the country to ensure that cases are disposed within the period earmarked for the same. Otherwise, with the present speed and style of functioning of the judicial system at the subordinate level, the pendency of cases will continue to rise enormously to erode legal and fundamental rights of the litigants-citizens, earnestly yearning to get timely justice through the independent judiciary of our democratic country.
(The author is an advocate practising law in Haryana).
