Changes must to reduce backlog in courts

Mounting arrears of cases in the courts have been a matter of concern in India for as long as one can remember.

This writer has recollection of a news report of the 1950s about the settlement of a land dispute which had dragged on in a British Indian court in Bengal for years and was fought by five generations of a family.

Bengal was where the British had first established authority in the subcontinent and they introduced there a new legal system based on what they were familiar with. The people who used to get quick settlements, of whatever quality, were confounded by the alien system which trapped them in prolonged hearings.

What’s more, it was frightfully expensive.

A British historian has recorded that when the East India Company’s forces marched into Oudh to annex it, peasants fled, fearing not the army but the judiciary which they knew was sure to follow.

The judiciary was able to live down its dubious early reputation and gain recognition as one that is fairer, even if more cumbersome, than what went before it.

India’s Judiciary is arguably the most powerful institution of its kind in the world today.

It has the power to test all laws passed by Parliament and all orders issued by the Executive in the light of the provisions of the Constitution. One of its articles allows it to pass any order considered necessary to render complete justice in a matter brought before it.

Besides, during the past seven decades, the Judiciary, in exercise of its exclusive right to interpret the provisions of the Constitution, assumed powers, which the statute did not grant it. Limitation of Parliament’s right to amend the Constitution, imposed through two judgments a long time ago, and introduction of a judges- appoint-judges system, created through three judgments later, fall in this category.

With all the powers at its disposal, things do not always work out the way they should. Petitions challenging some controversial enactments of the Modi government are lying unattended.

Speaking at a public event last week, India’s Chief Justice, NV Ramana, said the country’s judiciary was overburdened. Access to justice would be possible only when a sufficient number of courts as well as sufficient infrastructure were in place, he added. Justice Ramana was referring to the problem of backlog of cases.

At present there are 5.8 million cases pending in the high courts. Annual disposals average 1.8 million, which is lower than average filings.

Justice Ramana said he did not want any vacancy in the Supreme Court, the high courts and the district courts to remain unfilled as he wants to give priority to clearing the backlog of cases. He did not link the vacancies to the slowing down of the appointment process after the apex court defeated a Modi bid to restore the Executive’s primacy in judicial appointments. However, the possibility of a connection between the two cannot be ruled out.

There can be no two opinions on the need to speed up the process of filling vacancies. But it is wrong to assume that shortage of judges is the main problem. Cumbersome procedures make the most contribution to delays in courts. One party or another seeks an adjournment and more often than not the court grants it. Sometimes an aggrieved party moves the higher courts against an interim order of the trial court and the proceedings are held up until that matter is resolved. The burden on the court system can be lightened considerably by making mediation a necessary process before court hearing in certain types of crimes.

Already there are provisions to make use of the services of retired judges on ad hoc basis. They are rarely invoked.

Requiring lawyers to present their final arguments in writing may also help save time.

Delays in courts are not a matter that can be resolved through the efforts of judicial personnel alone. The state is the largest litigant. A large number of its agents such as the police, the prosecutors and defence lawyers are involved in the justice delivery process in one way or another.

The wise old saying “Justice delayed is justice denied” needs to be driven home into all of them to ensure that the system works smoothly.