Indian Judiciary Lacks Will to Settle Pending Litigations

by Col LK Anand Retd

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The right to speedy deliverance of justice is a “Constitutional reality” and has to be honoured mandatorily by the Judiciary. Delay in administration of justice is a cruel form of social injustice and an inhuman act not only to the accused but any citizen seeking justice in any form. No court can compensate any accused for mental torture, social ex-communication or loss of self respect and self esteem, caused due to inordinate delay in delivery of justice.

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There is no denying the fact that Indian judicial system leaves much to be desired, in truly fulfilling the aspirations of Indian population. It specialises not only in delaying every case, much beyond the expectations of the victims, defeating the very basic tenet of “justice delayed is justice denied”, but also is a boon to the culprits who continue to prosper and roam around freely, due to gross lethargy and inefficiency of our enforcement agencies as also due to their own standings and support they enjoy from their corrupt political leadership and their virtual bosses the bureaucracy. No wonder over 150 of such criminals have found their way into the Indian parliament, busy enacting legislature to suite the criminality of their own thought and action.

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Interestingly enough, the political leadership which constitutes the executive organ of the Government, instead of asserting itself in any way to solve this perennial problem, moulds itself to be guided, at the whims and fancies of the highly tainted, unaccountable and irresponsible bureaucracy, which works only for its clan’s and its own personal safety, security, welfare and benefits. The proof lies in the fact that no bureaucrats ever get penalised or punished even for the greatest of blunders committed by them in any field of activity as also for the largest acts of corruption involving them.

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Unfortunately, our law enforcing agencies too, though, may claim to be autonomous, yet, work mostly under the scheming government functionaries including the ministers and their faithful babus ie bureaucrats. As a result, all their actions and activities are often directed and carried out at their behest and their overall performance has hardly ever risen above the ground zero level, to instil any confidence amongst the Indian population. Even the Supreme Court has become highly sensitive to the public opinion and rants that the judiciary also has lost the image of being clean, is no more without taint and has become deeply prone to corrupt practices at all levels. Shanti Bhushan’s declaration that out of 16 CJIs, at least 8 have been corrupt, has never been denied or challenged. So the people have started losing faith in the country’s judiciary and lost hopes of getting timely and proper justice. So, the law taking its own course in India, amounts only to the law taking no course at all. The result is that all the big fish reap the fruits of their positions and the lesser children of India, experience the drudgery of the legal process.

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There are many steps in our legal system right from the lower most courts to the highest Supreme Court, which involve heavy finances for hiring the expertise of our advocates. Unfortunately, the number of people administering judgements, are far too few and never kept pace with the disproportionate rate at which Indian population has been multiplying. There have been gigantic expansions in all Indian cities and hundreds of villages have been sold out to real estate establishments, to make way for accommodating urban population. The court rooms, where all hearings take place and judgements delivered, have continued to exist in the same dilapidated hutments and complexes where they existed even during the pre independence periods.

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Similarly, there have been hardly any additions in the higher denomination courts such as district level, High Courts and the Supreme Court, which could help in settlement of long pending litigations. Increasing the judicatory authorities in tens or even hundreds is no solution to the problem of millions or billions of pending legal cases at all levels. Under such unplanned and miserly distribution of adjudicatory authorities, how can a nation like India expect to ensure justice to be properly administered to its needy population. At times you get a feeling that the Judges at various levels, take a pride in having large and larger number of pending cases under their belt.

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Without doubting the capability and the talent of our advocates who assist the public to take a plunge into the legal system, it can be assumed that they also are seriously responsible for adding to the delays of nearly every case for their own or their clients’ convenience, the fact which is universally well known. Another fact, or irony of it all, in the Indian judicial system is, that a person who is an accused or a convict, on conviction, is awarded a sentence of death or life imprisonment or for that matter any punishment, is compelled to shell out handsome amounts to all the court staff usually through his advocate, under the nose of the judge. To presume that existence of such a system is not known to the judges, is beyond comprehension. It is doubtful thus that legislation of Lok Pal Bill would be able to curb corruption at these levels. If such a state is not controlled or rectified on war footings, our judicial system can be said to be doomed and would never be able to extricate itself from the deep malaise it has landed itself. There is thus a dire need for some tough decisions to achieve tangible results.

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Some suggestions to refurbish our sick and ailing Judicial System are :-

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( a ) Irrespective, of any difficulty in laying down time limits, the Apex Court in consultation with the Law Ministry and experts not necessarily only legal minds, must carry out a thorough introspection of the issue and lay down guidelines for settlement of various types of criminal and civil cases within a practicable time frame. Sufficient pressure must be brought to bear upon the judicatory authorities, to finalise cases within the specified guidelines. A number of attempts have been made in the past to bring in judicial and many other reforms pertaining to enforcement systems, but nothing seems to have been put in proper place, to be of any benefit to the Indian population.

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( b ) All Cases must be monitored at all levels to ascertain whether the delays are really justified or not. In case of unjustified delays, there should be provision of punitive action like fines, reprimands, deprivation of promotions or even termination of service. If such conditions are imposed, it can be hoped that the results would certainly be visible.

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( c ) The decisions of High Courts and Supreme Court must be implemented in letter and in spirit within a specified period of say three to six months. Filing of frivolous review or recall petitions back into the High courts or Supreme Court, at all levels including by government functionaries must be drastically curbed and viewed seriously. The defaulters in this regard must be taken to task and booked by the concerned court, so that, they refrain from resorting to such unscrupulous tactics, just for the heck of it.

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( d ) Increase the number of lower courts and review courts, on the basis of population of a district and distribute the court complexes in all parts of the district/city or within any rural area, if felt necessary. Appoint well qualified judges and empower them suitably for expeditious settlement of all types of cases. There should be no objection to having 100 courts at widespread locations for a district, having population of say 25 lakhs, with one court @ 25000 population. It is learnt that USA has 107 judges per million of population, Canada 75.2 per million, U.K 50.9 per million. and Australia 41.6 per million. against India having only about 10 to 12 judges per million population, which on the face of it looks highly inadequate. Under the circumstances it may be ideal for us to have at least one judges for every 10,000 population. It would also solve unemployment problems besides speeding up deliverance of justice. If Indians can afford to transfer $70 billion or more into foreign banks and create scams to the tune of many lacs of crores, on day to day basis, who would agree that India is short of funds for this purpose or for that matter for any other purpose.

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( e ) Jurisdiction of the courts to handle various types of cases like criminal, civil, marriage, labour, constitutional etc may be specified so that there is no messing up and accumulation of cases unduly with any particular court.

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( f ) Compel courts to function round the clock in shifts if required, as well as to allot dates, so that the cases can be completed within the specified time frames fixed for each type of case. The lawyers adopting delaying tactics and resorting to seeking fresh dates for frivolous reasons must be warned or penalised or fined or debarred from practice or face the liability and consequences of exparte judgements.

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( g ) Every district must have sufficient benches of the respective State High court, which could settle reviews appeals etc within a district, and cut out delays.

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( h ) Similarly, every state capital should have one or more benches of the Supreme Court, functioning directly under the command, guidance and advice of the Chief Justice of India. Some of the past Reports of Law commission especially the 120th Report, have suggested setting up of four additional benches of the Supreme Court in the Northern (Delhi), Southern (Chennai/Hyderabad), Western (Mumbai) and Eastern (Kolkata) regions of India. This report does not seem to have so far, found favours with the Supreme Court. Under the prevailing circumstances it seems unavoidable to set up additional benches of High Courts and Supreme Courts as suggested above. It has also often been represented that no serious attempts have been made by the judiciary to make use of the provisions in the Constitution, for engaging the services of retired judges, both at the Supreme Court or at the High Court levels to facilitate speedy settlement of pending cases.

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( j ) The Supreme Court benches located in Delhi, could perform the review functions of the State level Supreme Court benches, or handle cases pertaining to the central government or interstate cases. Enhancement of strength of judges in High Courts and Supreme Court should be at a scale, so that no less than one judge is available for every 100 cases, admitted therein.

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( k ) There is also an urgent need to computerise or automate the complete legal system, so that all the information of the pending cases category wise, performance of adjudicatory authorities, performance of lawyers/advocates may be viewed and monitored at various levels on periodical basis, and remedial/punitive actions taken where ever necessary.

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If there is a strong willingness amongst the highest judiciary of the country and their administrative machinery, for reforming the judicial system to improve, to be made transparent and effective as also to persevere in reducing the millions of pending cases, we can hope to see a complete transformation of Indian Judiciary, to become totally autonomous, more vibrant and responsive to meet people’s aspirations. There is also a dire need to pay handsomely to all levels of Judicial staff (from Chief Justice of the Supreme Court down to the lowest peon in the lower most court), to cut out taint in all forms, amongst all its constituents, so that under all circumstances it maintains a clean and corruption free image, and deliver correct judgements without any fear or favour.

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By Col LK Anand Retd

elkayanand@rediffmail.com