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(Major Issues for G.S. Advance Batch)

(7) Judicial Backlog

THE PROBLEM OF JUDICIAL BACKLOG

It is a well known saying that Justice delayed is Justice denied. The most vivid manifestation is the pendency of
over 31 million cases in Indian courts. It is said that strength of judiciary, the guardian of the country's
democracy, depends on two pillars of justice delivery system - quality and speed. Of these two pillars, the Indian
judicial system is weak in speedily dispending justice. Such delay has been creating a double distortion; while the
rich and powerful subvert the system and use the legal safeguards to delay the judicial process, on the other
hand a large number of poor under-trials are languishing in our jails (70% of prisoner population consists of
under-trials). Also, the pursuit of justice, ordinarily a costly endeavor, has only been made more expensive by
chronic delays.
Delay in context of justice denotes the time consumed in the disposal of case in excess of the time within which
a case can be reasonably expected to be decided by the court. An expected life span of a case is an inherent part
of the system. No one expects a case to be decided overnight. However, difficulty arises when the actual time
taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in
dispensation of justice. Delay in disposal of cases not only creates disillusionment amongst the litigants, but also
undermines the very capability of the system to impart justice in an efficient and effective manner. The problem
of delays is not a new one it is as old as the law itself. Presently the problem has assumed such a
gigantic proportion that unless it is solved speedily and effectively, it can, in the near future, completely crush
the whole edifice of our judicial system. In the following pages, the reasons and the relevant remedies to
improve the current state of affairs shall be discussed.

Reasons for such a High Backlog

The predominant cause of judicial delay is understaffing. Other reasons include inadequate physical
infrastructure, the failure or inability to streamline procedures in the Civil and Criminal Procedure Codes, the
tardiness in computerizing courtrooms, and the inadequate effort that has gone into developing alternative
dispute resolution mechanisms such as the Lok Adalats, arbitration and mediation. Let us discuss these in a bit
more detail.
1) Inadequate Judge to Population ratio: Currently the Judge to population ratio of India is about 15 per million
which is grossly inadequate as compared to most of the developed countries which have a ratio of
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approximately 50 per million. Some examples can be quoted like Australia (41), Canada (75), England (51) and US
(117).

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Such a poor ratio is infact based on sanctioned strength rather than the ground availability. The data in the
below mentioned table speaks for itself that the number of judges is even much less than sanctioned strength.
The blame for such a state of affairs largely lies with judiciary and executive as it is their responsibility to ensure
that the courts function at full strength.

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At the subordinate level appointments are done by State Public Service Commission (at lowest level) and
promotion is done by Governor on the recommendation of High court. Direct recruitment of district judges is
also done on the recommendation of the High court. At this level also, vacancy is to the tune of 20%. All
stakeholders viz. the High court, SPSC, state government, Governor need to bring their act together so as to
reduce the vacancy at this critical level of jurisprudence.

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2) Poor infrastructure in courts and absence of computerization of records: The Indian Judiciary has lacks in
technology and has hardly been provided with technical assistance of faxes, dicto-phones and other such
devices. Almost all the courts have heaps of rotten files in the basement. In District Courts one can see courts
working without electricity. Thus, though we are living in the age of computers, yet our methodologies are
outdated and urgently need a re-look.
3) Improper case management: Petty cases, like traffic challans etc., keep clogging the courts while they could
have been successfully dealt by outside institutions. There are similar procedural laws and proceedings even for
the trifling and lesser cause of action cases. No consideration is given to the expertise and specialization of
judges while assigning them the cases. Normally the same judge has been assigned civil as well as criminal cases
that resulting in inefficiency.
4) Provision of Adjournments: The main problem that results in pending cases is the adjournments granted by
the court on flimsy grounds. Section 309 of Code of Criminal Procedure and Rule 1, Order XVII of Code of Civil
Procedure deals with the adjournments and power of the court to postpone the hearing. These adjournments
are granted only when the courts deems it necessary or advisable for reason to be recorded. It also gives
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discretion to the court to grant adjournment subject to payment of costs. However these conditions are not
strictly followed and the bad practice continues not only by litigants but also by sitting judges. It thwarts the
right to speedy trial of the concerned litigants.
5) Vacations for the Courts: The most debated question relating to the causes for pendency of cases is the
vacations for courts. It is argued as to why the courts should have such long vacations when there is such a huge
pendency of cases in all the courts waiting for decades for disposal. In most of the countries like France & USA
there is no provision for vacations for the courts. The judges in these countries can take leave according to their
own convenience without affecting smooth functioning of courts. In India only Sub-ordinate Criminal Court runs
whole a year but the Supreme Court, High Courts and the other Sub-ordinate Civil Courts are closed during the
vacation period.

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Vacations for the High Courts are fixed by each High Court according to their own convenience, bearing in mind
the order of the President issued under Section 23(a) of the High Court Judges Conditions of Service Act, which
requires each High Court to work for 210 days a year. The total period of vacation of each High Court varies from
48 to 63 days. However, during vacations some Judges sit on the vacation benches only to transact urgent work.
High Court Judges do not sit on Saturdays and Sundays. Though the High Court is expected to work for 210 days,
the Judges would be working for a much lesser number of days when they avail of different kinds of leave.
Supreme Court should work for 185 days a year. In summer, Supreme Court goes for 8 weeks summer vacation.
These vacations ultimately affect the functioning of courts. The Arrear Committee suggested that these
vacations have been given in order to provide time to the judges for updating their knowledge by reading,
attending seminars, conducting research work etc. So the vacations should be reduced and not abolished
completely. These recommendations are not yet implemented and the minimum working days of the courts
have not been followed.

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6) Role of Judges

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(i) Lack of punctuality, laxity and lack of control over case-files and court-proceedings, attending social and other
functions during working hours contribute in no small measure in causing delays in the disposal of cases.

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(ii) Some judges are very liberal in granting adjournments.

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(iii) Some judges come to courts without reading case-files, therefore, the lawyers have to spend a lot of time
just to explain the facts of the case and legal point (s) involved therein. Therefore, they argue at length and all
this leads to wastage of precious Courts Time. There is a great need for self improvement by Judges.

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7) Role of Lawyers

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The role of lawyers is very important in justice delivery system. The commitment of these professionals can
change the whole scenario. Unfortunately, they are also responsible for delay due to varied reasons.
(i) Lawyers are not precise; they indulge in lengthy oral arguments just to impress their clients.
(ii) Lawyers are known to take adjournments on frivolous grounds. The reason ranges from death of the distant
relative to family celebrations. With every adjournment the process becomes costly for the court and for the
litigants; but the Lawyers get paid for their time and appearance. More often than not, lawyers are busy in
another court. They have taken up more cases than they can handle, hence, adjournments are frequently
sought.
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(iii) It is also true that lawyers do not prepare their cases. A better preparation of the brief is bound to increase
the efficiency of the system.
(iv) Frequent strike by lawyers
8) Complexity and Rigidity of Procedural laws: There are two types of laws - substantive laws and the
procedural laws. Substantive laws define the rights and liabilities. However the procedural laws provide a
mechanism to enforce these rights and liabilities. Most of these laws are around hundred years old and are not
well drafted. Since it is not possible to dispense with them, the only possibility is to reshape them because they
have become the biggest stumbling blocks in the way of speedy disposal of cases. The Law Commission of India
through its various reports has highlighted these issues. So much time is wasted on the arguments of
jurisdiction, cause of action, sufficiency of notice, amendments of plaint and other procedural matters.
Moreover, the words or terms used in the Bare Acts are highly technical and difficult (like the words notwithstanding, nevertheless, proviso, provided subject to the Provision herein after Provided) and hence
beyond the comprehensions of a common man. The procedural laws need to be simplified because howsoever
good the substantive law may be, it can be effective only if procedural rules are simple, effective and
expeditious.

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9) Rotation of benches: There is another peculiar practice. In this, judges handling a particular case get shifted to
hear other cases. This affects continuity and leads to further delays and costs.

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10) Lack of Judicial accountability: In India, judiciary is a separate and independent system. Considering the
judicial system independent and unaccountable by the courts, generally it gives leisure and comfort to the
judges that ultimately lead to delay in deciding the matters. High Courts have the power of control over
Subordinate Courts under Article 235 of Constitution of India. Supreme Court has no such power over High
Courts. Also there is absence of any performance metric which focuses on the time bound delivery of justice by
judges.

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11) Excessive filing of Public Interest Litigation cases - The genuine causes and cases of public interest have in
fact receded to the background and irresponsible PIL activists all over the country have started to play a major
but not a constructive role in the arena of litigation. Of late, many of the PIL activists in the country have found
the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees
as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained
in the so-called PILs. This eats up on the available time thus delaying the pending cases.

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Costs associated with such Huge Backlog

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Such delay in justice delivery has social, economic and political implications. Lack of confidence in Judiciary has
at times led to non-adherence to the rule of law from large sections of population. Large delays have scuttled
the legal efforts to enforce contracts and thus have hampered the business environment. Presence of large
number of poor under-trials on one hand and non-conviction of many rich criminals has led to the public
perception that justice is only for rich in India. Taking advantage of such delays, criminal elements are entering
into politics to further delay the process by using their influence. Delay also enhances the cost of justice and thus
it has become almost impossible for a large section of vulnerable people to seek justice due to paucity of time
and resources both.

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Suggestions to clear the backlog

1) Hiring more judges: As shown earlier judge population ratio is abysmally low in India. It is necessary for all the
stakeholders to put their act together and double the Judge to Population ratio within 5 years. Union
government on its part must take steps to increase judge to population ratio to 50 as suggested by 120th report
of Law Commission. Increasing sanctioned strength at all levels and providing financial and technical support to
states is necessary so that they can strengthen the judicial infrastructure at lower levels.
2) Increasing the age of retirement of judges: To deal with increasing number of cases, the age of retirement of
subordinate court judges should be increased to 62 years and that of High court to 65 years.
3) Shift system of courts can be promoted to ensure complete utilization of resources. If the existing court could
be made to function in two shifts with the same infrastructure, utilizing the services of retired judges and judicial
officers reputed for their integrity and ability, which are physically and mentally fit, it would ease the situation
considerably and provide immense relief to the litigants. The accumulated arrears could be reduced quickly and
smoothly.
4) Use of ICT in courts: Computerization of all district and subordinate courts, digitalization of records,
installation of video conferencing facilities in courts and establishment of electronic linkages with local police
station and jails etc.

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5) Increasing the number of working days: CJI has suggested that courts should work 365 days a year to reduce
the backlog. This suggestion has been opposed by the Bar council of India.

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6) Urgent need to fix rational, non mandatory time frames for different types of cases, and use such time frames
as a basis for setting judge performance standards, litigant expectations, and making more robust policy
recommendations for the judiciary.

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7) Encouraging Alternate Dispute Resolution methods: For relaxing of arrears of cases it is necessary to bring
down the rate of newly registered cases in the court. It doesnt mean that to bar or abstain the people to go for
court but to take alternative way to solve the disputes. Arbitration, Mediation and Conciliation are ADR
methods. They are fairly popular in developed countries like USA.

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8) Need for improvement in the working of Lok Adalats so that the large number of people, currently not
accessing the judicial system are enabled to access justice.

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9) Identification of bottlenecks and constitution of Fast track courts to deal with bottle necks: Cases under

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some laws have been identified as a bottleneck due to their large numbers. Some of the identified examples are
Matrimonial cases, Cases under Motor Accident claims, Traffic and police challans, Cases under section 498A of
IPC etc. It is important for the fast track courts to effectively and efficiently tackle these cases. Such step will
ensure speedy justice delivery and special focus can be made of cases by marginalized sections, old age etc.
10) Improved case management to ensure effective use of human resource. Many cases are filed on similar
points and one judgment can decide a large number of cases. Such cases should be clubbed with the help of
technology and used to dispose other such cases on a priority basis; this will substantially reduce the arrears.
11) Restriction on Adjournment and provision for adjournment only in exceptional cases. SC and High courts
have also passed directions in this regard.
12) Make judges accountable for any undue delay by developing a matrix for their performance measurement.
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13) Judgments must be clear and decisive and free from ambiguity and should not generate further litigation.
14) Government needs to be transformed from a compulsive litigant to responsible and cautious litigant. Large
numbers of cases are filed by various departments or PSUs against each other. For this government has been
framing the National Litigation Policy.

Recent steps taken to reduce the pendency of cases

1) National Mission for Justice Delivery and Legal Reforms: The Government has in principle approved setting
up of National Mission for Justice Delivery and Legal Reforms. The National Mission would help implementing
the two major goals of:
a) Increasing access by reducing delays and arrears in the system
b) Enhancing accountability at all levels through structural changes and setting performance standards and
facilitating enhancement of capacities for achieving such performance standards.
2) Judicial Standards and Accountability Bill, 2012: To bring about greater transparency and accountability in
the higher judiciary.

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3) 13th Finance Commission grant: With the objective of improving justice delivery, the Thirteenth Finance
Commission (TFC) has recommended a grant of Rs. 5000 crore to be utilized over a period of five years up to
2010-2015. An amount of Rs.1000 crore has been released to State Governments in the year 2010-11. This grant
is aimed at providing support to improve judicial outcomes. Many States have already formulated State
Litigation Policies as per the requirement for further release of TFC grant.

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4) National Litigation Policy: The Government has already announced a National Litigation Policy effective from
1st July, 2010 to reduce government litigation in Courts so that valuable court time would be spent in resolving
other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time
from 15 years to 3 years.

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5) ICT enablement of Courts: The Government has implemented a central sector scheme for computerization of
the District and Subordinate Courts (e-Courts project) in the country and for upgradation of the ICT
infrastructure of the Supreme Court and the High Courts, at a cost of Rs. 935 crore for the first phase which will
connect 14,249 courts in the country including video conferencing facilities.

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6) Gram Nyayalayas: The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram
Nyayalayas, a new tier of courts, at the grass-root level for the purpose of providing access to justice to the
citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen.

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7) Family Courts: The Government has pursued with the States the matter of setting up of Family Courts,
providing 50% of the cost of construction and Rs 5 lakh annually. 211 such courts have been set up in 23 states.
8) Increase in the age of retirement of Judges of High Courts: The Government has introduced the Constitution
(One Hundred and Fourteenth) Amendment Bill, 2010 in the Lok Sabha on 25th August, 2010 for increasing the
age of retirement of Judges of the High Courts from 62 to 65 years. Bill has lapsed with the dissolution of 15th Lok
Sabha.

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Performance of Fast Track Courts

Background
Fast track courts have been suggested as one of the solutions to clear the huge backlog of cases. The 11th
Finance Commission had recommended a scheme for the establishment of 1734 FTCs for the expeditious
disposal of cases pending in the lower courts. FTCs were initially established for a period of five years (20002005). However, in 2005, the Supreme Court directed the central government to continue with the FTC scheme,
which was extended until 2010-2011. The government discontinued the FTC scheme in March 2011. Though the
central government stopped giving financial assistance to the states for establishing FTCs, the state governments
could establish FTCs from their own funds. The decision of the central government not to finance the FTCs
beyond 2011 was challenged in the Supreme Court. In 2012, the Court upheld the decision of the central
government. It held that the state governments have the liberty to decide whether they want to continue with
the scheme or not. However, if they decide to continue then the FTCs have to be made a permanent feature.

Performance

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Fast track courts have certainly helped in reducing the burden of cases and providing swift justice. However,
people who have worked in the fast-track courts are generally very upset by the declining standards of these
courts and have defined it as 'fast-track injustice.' These courts are given unrealistic targets of cases to finish.
They have been told that they ought not get involved in too much technicality, and that broadly if they get a
feeling that a person is guilty, then declare him guilty and if he is innocent, then declare him innocent.

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But that's not how the criminal justice system works. It requires care and attention. Decisions are not made on
the basis of hunches and guess work, which is what the fast-track courts turned out to be. Judges (were) cutting
down on evidence, not allowing full cross-examinations, proceeding in the absence of lawyers in many cases. It
was in many respects not a very satisfactory system for delivering justice.

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SC has also recently expressed concern over the declining standards and directed all the states to file affidavits
within one month indicating the manner in which they were filing up the posts of judges for the FTCs and the
steps taken to create the sanctioned number of FTCs in their states.

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Going forward it is important to ensure quality as well as speed. So only wasteful practices should be done away
with and proper use of ICT will help in the task of reducing the burden.

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