Virag Gupta practices at the Supreme Court of India. He is a former IRS officer and has worked with Ernst & Young
The quest for justice initiated our struggle for independence which culminated in 1947. Right to avail justice became a fundamental right in the Indian republic but is yet to be effected in the true sense, even after seventy years of independence.
Like in the British Raj, lakhs continue to be put in jail, without any guilt to their name. With more than 3 crore cases pending that will be taking generations to get resolved, justice, if and when it comes in India, is seriously delayed. The natural consequence is rising costs of litigation and loss of faith in the judicial system.
India’s third pillar of democracy has to emerge stronger to share the workload of 130 crore Indians, and many more in this globalised world. Justice RP Sethi in the Anil Rai case observed, “In a country like ours where people consider judges second only to God, efforts should be made to strengthen that belief of the common man.” He observed, “For the fault of few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly.” Denial of justice is a ticket to anarchy, and the largest democracy in the world needs to identify as to where we are going wrong.
“Delay not only defeats justice and robs it of its immediate relevance to the parties but it shakes the very confidence of the people in the desire and ability of law to assist them when they need that assistance most,” stated Chief Justice Chandrachud in his famous Shankar Das judgment. But what if a party itself stands to benefit from litigation? Frivolous litigation is an important element of the total burden on the judicial system. There are cases wherein the system has spent more than that value of the total case. The reluctance in imposing costs has only encouraged frivolous complainants and petitioners, who seek the intervention of court on one pretext or other.
Some suggest that it will take more than 400 years to clear the backlog, while Justice VV Rao of Karnataka HC had suggested in 2010 that it will take 320 years. The number of litigants is only going to grow as people in general become more aware about their rights.
Data shows that states like Delhi and Kerala, which are better places on a socio-economic front, have more cases. Any which way, it is the litigants, i.e. ‘We The People’ who are the biggest stakeholder in justice delivery and immediate steps are required to stop the frivolous individual and corporate litigation.
Litigation by the State and Central government departments and PSUs constitutes 48 per cent of total cases pending in the Indian judicial system. The National Litigation Policy formed by the Union Law Ministry is rarely followed, with several government departments fighting each other in Court. Acting Chief Justice Gita Mittal of the Delhi High Court recently observed in an order, “Public money is being expended in prosecution and defence of the cases... we have no information of the litigation expenses already incurred by both sides, which includes lawyers’ fees and expenses. Such litigation which is almost between two limbs of one “body” (government) is a gross wastage of public money.”
Similarly, the message needs to be conveyed down the line so that every public prosecutor makes use of the law in an objective manner, and not just oppose for the sake of opposing. The Law Commission on its part has suggested a merit-based selection of government counsels, which will reduce nepotism, as well be a major step in controlling government litigation.
It is the system of government litigation that will improve the rankings of ease of doing business, as well as reduce the burgeoning burden on the judiciary.
Half the Judges
The number of judges increased six folds and number of cases increased twelve times in last three decades, yet there is no consensus on how many judges India really needs. The then Chief Justice TS Thakur had emotionally voiced the burden on the judiciary and said that we need 70,000 judges. However, in the Chief Justices Conference held in April 2016, it was decided that 50 judges per million population should be the benchmark, which gives us the figure of about 60,000 judges. But a research by Vidhi puts the real requirement at 24,839 only. On the other hand, France has 124 judges per million population, while US has 108 and England just 22. Even as per the sanctioned strength of 25,000 in the lower judiciary, there are almost 5,000 vacancies. It is the High Courts which are in charge of the administrative affairs of the lower courts, and hence the blame of vacancies lies squarely with them.
The Supreme Court recently took up the issue of centralised selections for lower judiciary by initiating a suo motu petition. Interestingly, three High Courts have put reservations on the idea of National Judicial Service, stating that it may infringe on their administrative rights.
Moreover, the judiciary has its own battle on appointments as the Memorandum of Procedure (MOP) is yet to be finalised, even after about two years of the NJAC judgement. There seems to be an unfortunate surrender by both sides as the Collegium System continues to function, sans any accountability.
A third of lawyers in India are fake as per statement made by Chairman of the Bar Council of India . Although the statement was made without putting any data on record, it does expose the malaise of fake lawyers in the judicial system. Professional etiquette and ethics are being remembered as hallmarks of a bygone era, and that really is the sorry state of our Bar.
The Law Commission and several government reports identify the taking of adjournments by lawyers as the main cause of judicial delays. A Vidhi Report notes “91% of the delayed cases involved at least one adjournment and 70% involved more than three. In total, inefficiencies attributable to the counsel made up for 80% of all inefficient behaviour”.
Such adjournments are routine also because of the procedural law, which needs a fresh look in light of technological advances made in the 21st century.
“Delay in disposal of cases, not only creates disillusionment amongst the litigants, but also undermines the capability of the system to impart justice in an efficient and effective manner,” said former Supreme Court Justice BN Agrawal. The procedural law in India is designed to be fair, complete and comprehensive.
However, there are different traditions that need to go in order to achieve high efficiency. The E-filing in Supreme Court is a welcome step in this regard. At the same time, instead of barging ahead with Digital India, the Supreme Court could have first trained the lawyers with the system so that it could have been used from day one itself.
Other miscellaneous features like functioning websites, timely cause lists, reception counters at courts. E-service of the summons are some of the steps that may ensure justice delivery process tad easier to get justice.
Before the implementation of the Finance Act, 2016, we had a total of 36 tribunals. The specialised quasi-judicial bodies were meant to share the heavy workload of the Indian judiciary, but have miserably failed in performing their own functions.
Much of the blame lies at the doorstep of governments, which often have many vacancies in tribunals, with many of them being headless. Importantly, the data given by National Judicial Data Grid does not portray the complete picture, as it does not include the pendency at tribunals. More than one lakh cases are pending before Debt Recovery Tribunals and Income Tax Appellate Tribunal each. The land tribunals by themselves have around 2.5 lakh pending cases, with thousands pending in the Armed Forces Tribunal, Central Administrative Tribunal etc. Through the Finance Act, 2016 the government had reduced the total number of tribunals to 18, but unfortunately, this is also a mere eyewash. It has tried to merge several tribunals even as their area of expertise being niche, is different.
Corruption in the judiciary is a precarious subject. The powers of contempt with court deter many from speaking out and exposing the rot in the system. Paying a bribe is the most common avenue to get work done in court as the system is designed to be inaccessible, slow with rampant misuse of power.
Many say that what has been seen through the media as a rogue judge, Calcutta High Court’s Justice Karnan may have paid the price for speaking out on corruption in the judiciary. Justice Katju, who once was quite vocal about alleged corruption by two former Chief Justices is now keeping a low profile. The instances of judges being removed due to corruption are rare and it also said that a good lawyer knows the law whereas a great lawyer knows the judge!
The Law Commission of India in its 245th Report released in 2014 identified different approaches to identify judicial delay. Practice Assessment Approach involved a data based pattern study process whereas Normative Approach advocated for a fixed time standards for disposal of cases. 1n 1988, the Law Commission had released its 124th Report titled taking a fresh look on arrears in High Courts.
Significantly, the 77th and the 79th Reports of the Law Commission were also on arrears in lower courts and appellate courts respectively. As luck would have it, each report differed on the method for calculation of arrears. Recently, the National Judicial Data Grid (NGDJ) is an important step in this regard.
The NJDG on a macro scale puts the total number of pending cases in Indian Judicial System around 2.5 crores, our which more than 25% have been pending for 5 years or more. There are numerous laws such as Consumer Protection Act, 1986 which state that the matters should be finished within three months but practically they are never implemented and the cases linger on for years. Majority of pending cases are criminal cases, for which no compensation can ever be quantified for the lakhs of under trials in jails. The Supreme Court in Hussainara Khatoon had said, “It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.”
A relic of the British Legal System, the Indian Judicial System is yet to gain independence. In the past 70 years, it has found itself bound in chains, with more being wrapped around. A globalised, economic and military powerhouse nation will require a robust and fair justice delivery mechanism. Lawmaking in India is abysmal, and hence more the litigation.
Our Income Tax Act itself has been amended more than 6000 times in less than 60 years of its existence. Speedy trial has been held to be a sacrosanct aim that is rarely achieved. Justice Krishna Iyer in his Babu Singh judgment had said, “Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.” Former Supreme Court Judge, Justice Chauhan in 2013 had wondered why we need to work with a judicial system that has a 178-year-old pending case in Kolkata. As the Law Commission’s Chairman, it is expected that now he will suggest effective steps to save the flailing justice delivery mechanism. Several steps like weeding out unnecessary laws, making changes in complicated procedures, easier access and publication of laws, live streaming from courts, proceedings through video conferencing, and a transparent procedure for selection of judges are now a necessity to keep the judicial system alive, as it is the truth that should triumph, timely.
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