Rising case pendency must be matched by greater promptness and efficiency in adjudication.
PROFLIGACY IN APPROACHING THE COURTS
A major reason for the huge backlog of civil proceedings is the wide range of matters in India that are justiciable. Besides the Constitution, all laws of the Centre, State and Union Territories, as well as the rules and regulations made under them, are enforceable by law. The compatibility of conventions, practices and traditions followed in each area of human activity—whether codified or not—also comes under review by the courts of law; particularly while considering regional and provincial matters. Similarly, despite having subject-related fast track tribunals and regulatory bodies that require a degree of domain knowledge and technical expertise, appeals and reviews of their verdicts usually end up in the higher courts rather than their prescribed appellate tribunals viz. for company matters, competition laws, electricity, and telecom issues.
Additionally, to enforce the fundamental rights of citizens, writ petitions are maintainable in all high courts and the Supreme Court. Public Interest Litigations (PILs) on all kinds of matter are also addressed to such courts and lead to hordes of petitions getting considered. The filing of Special Leave Petitions (SLPs) is another way of moving the higher courts. As a reminder, these modes are in addition to matters of original jurisdiction and the normal appeals against district and sessions courts’ decisions. While the power to admit such petitions lies with the relevant Court, a good number do end up with court notices getting issued to the respondents, and the courts hearing the pleas at least once. The process blocks up the already limited court time for taking up the duly admitted cases, particularly as the admissibility of such petitions is accorded greater importance and these get heard before the listed items for the day. The original intent to allow for such petitions was predicated on the assumption that only matters of importance and of general applicability, would be reviewed judicially; in practice, several turn out to be individual matters with limited relevance. Quite a few could even be termed frivolous and are filed by vested interests more to get media publicity than settle an issue of wider public concern.
Amongst the commonly followed alternate modes of adjudication is mediation suggested by courts, and the resorting to arbitration, if provided for in the original business-papers. Expectation of the lawmakers who had formulated the procedures for these options, was to “lighten the burden” on the conventional adjudication processes, besides hastening the dispensing of justice. However, the ground reality, is that these options of settlement have added to the exercisable judicial options without becoming effective alternatives. Even after going through mediation or arbitration, a significant number invariably comes back to the courts, with original suits pursued again by the aggrieved side. This is particularly true of the awards going against the government bodies.
It has been noticed that in regions where the quantum of pending criminal cases is high, and the judicial process cluttered up by grant of long and frequent adjournments. the backlog in lower courts has increased, e.g., in states such as UP, Maharashtra and Bihar over the preceding decade, and more particularly during the Covid-19 pandemic. Not surprisingly, whenever criminal cases get prolonged, the parties in dispute simultaneously resort to filing civil cases against one another. The high valuation of land, both urban and agricultural, induces greater litigation; as does the cavalier attitude of the executive authorities vested with quasi-judicial powers in cases of tenancy, occupation and eviction from real estate.
RISING CASES WITHOUT A COMMENSURATE INCREASE IN THE NUMBER OF COURTS OR JUDGES
With an aggregate national pendency of over 47 mn cases—of which 41 mn are in subordinate courts—the need of the hour is to significantly hasten the pace of disposal and drastically review the basic judicial processes, especially at the first stage of litigation. For a country of 1.35 bn, a number that has grown by almost 400% in the last 75 years, the expansion of the number of judicial courts along with the judges and magistrates, has been correspondingly slow. At the end of 2021, the subordinate courts had a sanctioned strength of 24,018 judges, of which 5,146 lay vacant: 25 high courts had 380 vacancies out of 1,108, while the apex court had 1 out of 34. The overall increase in courts and judges, in part, has occurred because of the creation of new states, districts and tehsils (talukas).
Instead of linking the quantum of judicial courts only with revenue divisions or some other administrative consideration, a more direct connection with the potential workload is called for. At a modest rate of 1 sessions court for every 1 mn population, 1,350 subordinate courts are needed compared to the existing 670, along with the requisite additional, joint and assistant judges etc. Doubling their number to about 50,000 besides correspondingly increasing the requisite court masters, readers, and ministerial staff is warranted. While setting the new courts, rather than focus on the construction of court-buildings, the emphasis be placed on equipping courts with the modern wherewithal of video-hearings, computers and other digital means to conduct proceedings efficiently.
The exercise of setting up new courts can, in fact, be made modular with all the required sequential steps spelt out in advance, along with the updated annual costs involved so as to streamline the procurement-process. The funding required from the State Governments would consequentially be known more precisely and provided in time.
Besides the physical infrastructure, a greater challenge will be finding the requisite number of judicial officers. The present criterion for their selection is restrictive and demands definitive career decisions for the new entrants to the legal profession. Rather than insisting upon a qualified person being appointed for his entire working life, appointments could be made for a fixed tenure of 10 years (which could be renewed only upon mutual consent, for another similar term). This would help cast a wider net for those interested in being a judge; a job with limited pecuniary benefits but serving a larger public interest. Recruitments and promotions on the Bench, including for those on fixed time contracts, must be made more merit based, and not merely according to the seniority of service. It would be useful to simultaneously consider extending the service of all judicial officers in the subordinate courts to 65 years of age from the current 60 years. Longevity in service would help in dealing with the huge pendency. In fact, in view of the huge current backlog, state governments and high courts could consider a one-time exception to continue with experienced judges even beyond 65 years on a contractual basis, subject to an annual medical fitness test.
IMPROVING THE CITIZEN’S ACCESS TO JUDICIARY
The current stock of practising advocates is fairly adequate and with a significant number graduating annually from various law colleges, the overall number of lawyers is not deficient. However, spatially there is skewness, with most legal practitioners gravitating towards the courts in cities and larger towns. Furthermore, their unwillingness to lower their fees and other charges, makes them unaffordable to the average Indian citizen, whose per capita income remains low. Legal aid schemes of various types have yet to bridge the gap on this account. The fairly recently activated District Legal Services Authorities (DLSAs) under the chairmanship of the District and Sessions Judge has highlighted the need to galvanize these bodies to vastly improve the poor man’s access to justice. Making greater use of the Gram Nayalayas (village panchayats) for dealing with petty crimes and disputes, as already envisaged in the extant scheme of things, especially by the police in filing their charge sheets, could help improving the judiciary’s accessibility.
A creative potential way to make progress on the front of lawyers assisting the poor would be to make a certain period of apprenticeship (perhaps two years) compulsory before a law-graduate can be registered in a Bar Council, and starts practising on his own. The salary or scholarship payable to them should come from the State, with the relevant DLSAs being the focal point of attachment to the senior lawyers. The mentorship of new entrants by the experienced in the profession, including systematically monitoring their performance and reporting it to the relevant Bar Council and DLSAs, would need to be elaborately prescribed. Entry to the Bar, a much-prized recognition in the days gone by, would be dependent upon the successful completion of such an internship. The import of the term “entered the bar” would then become more meaningful and evolved away from the mere registration process it has become today in many ways. Upon completion of their “attachment” the public minded ones amongst the young law graduates might even prefer to continue defending poor citizens on their own rather than become “private lawyers”. They could form the nucleus of the teams of the dedicated lawyers defending marginalized people in each district and who, as per the incoming Chief Justice of India (CJI) U.U. Lalit, could do “great wonders”.
Yet another potential area of wider application would be to place greater reliance upon Lok Adalats (People’s Courts) to amicably settle civil disputes. Of late, the experience with resorting to these fora, instead of the traditional courts of law, has been positive. Given the huge pendency of cases, and the dawning of the realization that disputes could take decades to be settled, litigants on both sides are exhibiting an increasing readiness to go by the binding compromises made in a Lok Adalat. Rather than relying on the convention mode of proceedings, ad hoc alternative solutions are instead jointly discussed with the Presiding Officer who issues a decree for the bilaterally agreed upon option. In the third countrywide national Lok Adalats of the current calendar year, convened last Saturday, 13 August, an astonishing number of 8.1 mn (or one-fifth of the pending cases in subordinate courts), were disposed. The national legal services authority (NALSA) and the state legal services authorities (SALSAs) were pro-actively involved in explaining to litigants the benefits of settlement through the inexpensive and prompt resolution process of Lok Adalats. Several cases were also taken up through digital Lok Adalats.
SCREENING OF PETITIONS T0 HIGHER COURTS
At the end of the day, even with the expansion of all judicial organs and the deployment of modern technology to help dispense justice, the fact remains, at present, far too much in terms of workload ends up in the lap of the judiciary. To some extent, this is an indication of the extent of dissatisfaction the average citizen may have with other organs of governance.
To moderate the inflow of new cases to the higher levels of courts, the admission of petitions of various kinds, be it SLPs or PILs, needs to be filtered more strictly. High courts would do well to be selective in according the special permissions (extraordinary leave to appeal) to both their own larger benches, as well as the apex court. Only when the question is truly one of law and its interpretation, and not of facts of an individual case, should permission normally be accorded. The Supreme Court could effectively check the urge to seek the associated publicity in the filing of PILs by appointing amicus curie (lawyers acting as friends of the court) who would plead the petitions rather than letting the filing-advocate do it. Repetitive reconsideration of even legal interpretations needs to be eschewed; unless of course, the relevant circumstances have undergone a significant transformation. Greater self-restraint, both by the Supreme Court and the high courts, would need to be demonstrated on a consistent basis, in admitting various types of petitions dealing with issues of limited applicability.
At the end of the day, the onus as well as the capability to effectively reduce the pendency and ensure that the judiciary delivers comprehensively and on time, rests with the judiciary itself, and largely upon the apex court of the country. The latter’s writ runs through the length and the breadth of the entire judicial system. Given its range of legal powers, the persuasive position and the faith of the citizens at large, it is in a position of advantage to influence the functioning of the other two organs of governance, viz. the legislature as well as the executive. The Court can facilitate these two wings to become active players in facilitating the changeover and become the much needed partners in the charge of transformation. Otherwise, the calls for legislatively prescribing time limits for disposal of different types of cases by courts could become more pronounced.
The part to be played by the Executive wing, in fact, in promoting a robust judiciary is critical. As was somewhat exaggeratedly observed by Union Law Minister Kiren Rijiju, while addressing the Supreme Bar Association in the presence of the CJI Ramanna on the last Independence Day, “without government’s proactive and supportive role, it would be difficult for judiciary to perform its duties in isolation”. In more mundane terms, the governments being the biggest litigants accounting for almost one half of the pending cases, they would do well to become more circumspect in filing of new cases. Also the pendency in criminal cases would appreciably reduce if, as pointed out by the Supreme Court while recently dealing with a matter concerning the undertrials, “the first time offenders involved in petty offences could be let off and criminal proceedings can be dropped if they agree to file a bond or observe the other conditions for good behaviour in society…and the convicts who been in jail for around 10 years but have not had their appeals heard in high courts due to pendency of cases can be granted bail.” Certainly, these are suggestions to carefully ponder over.
Dr Ajay Dua, a public policy commentator, is a former Union Secretary.