JUDICIAL PENDENCY - POLITY
News: Doubling
court strength won’t end pendency: Supreme Court
What's in the news?
● Judiciary
is overburdened because of the system, says Chief Justice of India Chandrachud;
he points out that it is already difficult to find good lawyers to fill
judicial vacancies in High Courts.
Key takeaways:
● The
Supreme Court on November 29, 2022 said that increasing the number of judges will not demolish the
perennial problem of pendency, noting that it is already difficult finding
good lawyers to accept the call to the Bench in High Courts.
● The
court said that a Public Interest Litigation (PIL) seeking to “double” the
number of judges in the High Courts and the district judiciary was a rather
“simplistic” solution to arrears.
● The
Chief Justice said that the judiciary was “overburdened because of the system”.
He added, “If we apply the brakes, we will be absolutely clear of arrears.”
Pendency of cases:
● Over
59 lakh cases were pending in the
High Courts until July 22.
● Allahabad
High Court has the highest number of pending cases at over 10 lakh.
● Next are the High Courts of Rajasthan (just over 6 lakh) and Bombay (just under 6 lakh).
Causes for Pendency of cases:
1. Increase in the number of cases:
● An
improvement in literacy levels, population growth and formulation of
citizen-friendly tools like PIL have
resulted in a huge influx of cases in courts.
● The
number of judges is very low given the size of our demography. This causes
overload on judges and hence the delay.
2. Increase in crime rate.
3. Rising Vacancies:
● The
courts are working below their sanctioned strength. As of 2017, High Courts
have 403 vacancies out of the sanctioned strength of 1,079 judges. But still,
there is no filling of vacancies.
● Similarly,
subordinate courts have 5,676 vacancies against a sanctioned strength of 22,704
judges. The delay in appointments is
increasing vacancies.
4. Rigid Procedural Requirements:
● A
lot of paperwork needs to be done on every case which sometimes creates
unnecessary delays.
● Complexity in the Indian
law.
● For
instance, Vishnu Tiwari was recently acquitted of a false rape charge by
Allahabad high court. His appeal was pending before the Allahabad High Court
for 16 years. The reasons behind this were missing documents or documents in
the wrong format for listing the case.
5. Poor Conduct of Lawyers:
● They
are sometimes found indulging in collusive
corruption especially at subordinate levels in order to drag the case.
● Moreover,
the lawyers also demand frequent adjournments for not valid reasons.
● The
rich and powerful hire lawyers who stall court proceedings by taking advantage
of archaic regulations and loopholes in law.
6. Inefficiencies by Police Personnel:
● They
are sometimes seen complacent in filing charge sheets and conducting speedy
investigation which creates a delay in delivering timely judgement.
7. Law school:
● It
should focus on developing lawyers, not on building future members of the
Judiciary.
Impacts of Pendency of cases:
1. Burden on Judges:
● Rising
pendency creates an excess burden on judges.
● Judges have sometimes seen hearing more than 100 cases in a day. This reduces the average time devoted to a case on a particular day.
2. Overcrowding of Prisons:
● Pendency
enhances the number of undertrials
in the prisons which eventually leads to overcrowding.
● According
to the NCRB data, In 2019 there were 4.78 lakh prisoners. Out of which 69.05 %
were undertrials.
3. Undermines Right to life:
● In
Hussainara Khatoon v. Home Secretary,
State of Bihar case, 1979 the SC held that the “right to a speedy trial” is a fundamental right implicit under
Article 21.
● But
pendency of cases is a clear violation of the judgement itself.
4. Harassment of people:
● The
pendency causes harassment of the accused and victim.
● As
they need to go through significant financial,
physical and mental stress for years due to the pendency.
● For
instance, in the recent example of the Vishnu Tiwari acquittal case, He spent
20 years in prison before this acquittal.
5. Undermines Judicial Credibility:
● The
faith and trust of the common man in
the judicial setup are also lost if he/she didn’t receive timely justice.
● It
is perceived that judges are indulged in some kind of favoritism towards one of
the parties and are deliberately delaying the process.
6. Unsatisfactory Disposal rate:
● The
disposal rate (number of cases disposed of) has stayed between 55 -59% in the
Supreme Court, 28% in the High Courts, and 40% in the subordinate courts.
WAY FORWARD:
1. Timely appointment:
● Rise
in vacancies can be duly addressed with timely appointments.
● This
would require developing a consensus over a memorandum of procedure between the executive and judiciary.
● The
memorandum of procedure should be based on four criteria.
○ Transparency
in the Judicial appointments
○ Eligibility criteria
for judicial appointments
○ A
permanent secretariat to assist the
collegium
○ A
mechanism for complaints against
candidates.
2. Use of expertise retired judges:
● The
Supreme court has recommended that retired high court judges having domain
expertise should be placed back as Ad
Hoc judges. This will fast track the disposal of cases.
3. Responsible from government:
● Government is the biggest
litigant in India.
● It
should take steps at setting up institutional measures for arbitration and
dispute resolution.
● It
should move towards a more responsible-regime while filing cases.
4. Fast track courts:
● Establishing
fast track courts for cases on sensitive issues like rape, corruption and high
profile cases so that justice is seen to be delivered and people maintain faith
in the system.
● Setting
up of special courts like property
courts, commercial courts and e-courts for speedy disposal of cases.
5. All India Judicial Services:
● The
slow disposal rate can be improved by augmenting the quality of judges. For
this, the government can set up All India Judicial Services (AIJS).
● It
is a proposed cadre of judicial officers at the lower levels (below High
Courts).
● They
would be recruited through an open
competitive national level exam conducted on the lines of the Civil
Services Exam.
6. Digitization:
● An
integrated digital system is
required in the judiciary to streamline the process.
● This
digital system will allow smooth interaction between various institutions
through a digital platform.
● It
will normalize the format and content of data across all the systems.
7. Accountability of judges:
● The
media as the 4th pillar of democracy
should do periodic and constructive reporting on the pendency of cases. This
will have a dual benefit.
● Placing
better accountability on judges.
● Bringing
the pendency to the public domain.
8. Alternate dispute resolution:
● Alternative
Dispute Resolution mechanisms like Arbitration, Conciliation, Lok Adalats etc.
should be promoted by judges.
● Further,
legal services authorities, such as, NALSA, SALSA, DALSA and TALSA, can
generate awareness.
Recommendation of Law Commission:
Law Commission of India in its 230th report has also offered a long
list of measures to deal with the pendency of cases. These include:
● Providing
strict guidelines for the grant of adjournments.
● Curtailing vacation time
in the higher judiciary.
● Reducing
the time for oral arguments unless the case involves a complicated question of
law.
● Framing
clear and decisive judgements to avoid further litigation.
● The
courts should also seriously consider incorporating technology into the system
- digitizing courts records.
Justice
Delayed is Justice Denied. The right to
fair and speedy trial must be upheld in all circumstances as it is an
important component of dignified life
under Article 21 of the Indian Constitution.