By: Sunanda Singh Bisht
Judiciary is one of the most powerful institutions in our country as it is a body responsible for deciding the collective destiny of over one billion people who are diverse in many respects, yet united under a democratic constitution. By all accounts, the judiciary, compared to the other two wings of government (the legislature and the executive) has performed well, retaining the trust of the people in its independence, fairness and of course courage in checking the excesses of the executive government through ‘activism’ In spite of this, during the six decades of its functioning it has received more brickbats than bouquets.
The recent speech delivered by Chief Justice of India, T.S. Thakur at the Annual Chief Ministers and Chief Justices Conference, once again brought the problem of an overburdened judicial system into the public glare. Dwelling on the poor judge to population ratio, Justice Thakur mentioned that, while the Law Commission of India in 1987 had suggested having 44,000 judges to effectively tackle the then number of pending cases, the country today has only 18,000 judges!
Shortage of judges is one of the formidable challenges which the judiciary is facing for a long time now. “Thirty years down the line we continue to work with depleted strength. If you go by the number of people who have been added to the population, we may now require more than 70,000 judges to clear the pending cases. Therefore, it is not only in name of the poor litigant but also in the name of development of this country, its progress, that I beseech you to rise to the occasion”, Justice Thakur said in an emotional speech.
This problem appears to have gotten so dire that there aren’t easy policy prescriptions to fix it. The reforms required to fix the problem, ranging from modest (increasing working days or the length of court sittings) to more complex (increasing overall efficiency and transparency).
The Ministry of Law and Justice, GoI has in fact listed the reasons for pendency and overburdening of judiciary, few of them being the increasing number of state and central legislations, vacancies of judges, number of revisions/appeals, frequent adjournments, indiscriminate use of writ jurisdiction and lack of adequate arrangement to monitor, track and bunch cases for hearing. As per the calculation of an expert, in case no new case is filed at the court, then also it would take 324 years to decide all the piled up cases!
To cover a backlog of over a million cases, pending in the High Courts and Subordinate Courts, the Indian judicial system inducted 1,734 Fast Track Courts, via Eleventh Finance Commission. However, in spite of the introduction of Fast Track Courts, there was no apparent speeding up of judicial setup. One of the reasons for this was staff crunch, which prevented the courts from functioning in a time-bound manner. Also, it led to an excessive burden on public prosecutors. There are instances when a prosecutor had two or more cases being listed at the same time but in different courts!
The legal proceedings are too complicated and ill-defined, causing the rate of clearing of cases to be abysmally slow. In a case of 50 hearings, on an average, there are 10 to 15 adjournments on inconsequential grounds, and many times due to the absence of judges! Thus, the number of effective hearings in a case is quite low. Also, the gap between the dates of hearing extends to several years, thereby increasing the pendency of cases. Moreover, an increase in the reporting of certain crimes such as crime against women has led to a rise in the workload of the judiciary.
That said, inadequate strength of the police force has also played its part in the piling up of cases before the courts. The Law Commission report said that speedy investigation by the police has not been achieved due to reasons ranging from corruption within the system to the apathetic attitude of the officers. In cases involving public figures or powerful personalities, trials and investigations are especially slow.
With all of this, the wheels of the judiciary may have slowed down, but they are certainly not rusted. It’s only time for solutions.
There is an inevitable need for strengthening the lower judiciary so as to substantially reduce the burden of higher courts acting as a mere corrector of errors. Other suggestive measures include appointing more judges, including retired judges as ad hoc judicial officers, increasing the retirement age, and deploying judicial resources efficiently. Warren E. Burger, Former Chief Justice of US Supreme Court rightly observed, “The notion that most people want black-robed judges, well-dressed lawyers and fine panelled courtrooms as the setting to resolve their dispute is not correct. People with the problem, want relief and they want it as quickly and inexpensively as possible’.
Therefore the solution lies in a method which quickly disposes of the cases. Information and communication technology (ICT) can play a significant role in this regard as it can prevent unnecessary cases from entering the judicial system and club cases on similar points, thereby avoiding wastage of essential state resources and making the overall justice dispensation system more productive and efficient.
Online Legal Dispute Resolution (ODR) is another method through which a dispute can be resolved online without approaching any judicial forum. The concept of ICT and ODR must be made an essential part of the Digital India and Internet.
Such reforms iron out only a few issues. A holistic and meaningful reform cannot be achieved without efforts to improve legal literacy. If people are more aware of laws and procedures, not only would they be less prone to being misled, but they will also commit less process-related mistakes.
To improve our legal system, we must be guided by what Lord Macaulay who says, “Our principle is simply this – Uniformity when you can have it, Diversity when you must have it, in all cases, Certainty.”
(Sunanda is Blog Chair at the RMLNLU Law Review Blog and is also currently serving as the Editor-in-Chief of the RMLNLU Law Review.)