Justice delayed is justice denied
Justice is one of civilisation’s foundational goals. It is therefore imperative for the judiciary to perform its duty properly for any society to continue its pursuit of peace, harmony and progress. Unfortunately, the Indian judiciary, despite its many successes, suffers from severe structural problems that prevent it from functioning properly. The judiciary’s travails, specifically those relating to delays and backlog are well documented and don’t need repetition. However, it is only in the last few years that these structural problems have been better understood empirically thanks to the availability of better data.
It is now possible to assess, in a fairly detailed manner, the judiciary on parameters such as budgets, human resources, workload, diversity, infrastructure, and trends over the years. We can also accurately diagnose the pendency and backlog problem not only at district and taluka level but also at court complex levels.
We know, for example, that while pendency is a nationwide problem, it varies vastly from state to state, with the average pendency being anywhere in the range of two years to nine years in the district judiciary, as the India Justice Report 2019 reveals. We need to work on the problems that lead to delay on a daily basis, by increasing certainty of outcome in each hearing and avoiding burdening a judge in a manner that encourages adjournments. On an average, a district judge has about 50-60 cases listed before him each day. It is impossible to meaningfully hear such a high number of matters, and therefore at least 40 of these cases will be adjourned by the judge without any significant movement. This happens every day in each court across the country throughout the year. Naturally, there will be delay and backlogs at the end of the year. It is these daily problems that magnify over time and transform into structural problems crippling the functioning of the institution.
Today, it can take nearly 20 years if a case goes all the way from the subordinate court to the high court and then the Supreme Court. Twenty years means multiple generations of litigants, enormous cost and frustration — a case taking this long to be resolved is symptomatic of an inefficient and ineffective judicial system; any ‘justice’ delivered after a span of 20 years would be bereft of its true meaning. There are many problems that this process creates. First, judges, particularly those in the superior courts are dealing with cases from the previous decade and not today’s pressing issues. Second, the judiciary and the legal system at large, is inherently favouring the illegal actions of one party at the cost of violating the rights of the other. Further, a prolonged legal battle will have the effect of encouraging such illegal actions not only by the parties involved but across society, which in the long term lead to an erosion in the faith of people to get timely justice.
From a larger perspective, judicial delays also lead to uncertainty regarding laws and their application — the ongoing case in the Supreme Court regarding the application of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 and the determination of compensation thereunder has practically halted land acquisition litigation in the country. Cases related to land acquisition in the subordinate courts remain pending for six years on average and are a category of cases that take the most time to be resolved in court.
How then must the judiciary proceed to ameliorate the effects of delay? Foremost would be to efficiently manage judicial time. Listing an optimal number of cases to be heard on a daily basis is vital to ensuring that judicial time is not spent on unnecessary adjournments and that lawyers are prepared for their cases knowing that they will be heard with certainty. Courts must work towards better case management frameworks to ensure that cases are scientifically listed taking into consideration the stage of the cases and the amount of time they would require to be heard. The Delhi high court recently took the lead on this through a pilot project in the district judiciary; the results of the project show that it is possible to decide cases in a short time frame with better case and judicial time management.
A critical reform required is the need to appoint a full-time judicial administration cadre. Internationally, judicial administration is seen as being ancillary to the work of judges and is carried out by dedicated and specialised personnel to help judges efficiently perform their judicial duties. The establishment of a dedicated and trained cadre to provide support to the judiciary through case management, assistance with budgeting, handling administrative tasks, and ensuring maintenance of court infrastructure will go a long way in enabling the judiciary to focus on the administration of justice. Currently, judicial administration is essentially managed by judges themselves. This is not only unsustainable, but also unfair to judges whose primary skill and responsibility is to decide cases.
The most critical mantra is to embrace technology with vigour. Many of our court rules and processes were conceived of in the 19th century and need a thorough overhaul as they have become a hindrance to the delivery of justice. We should change these processes to meet today’s societal realities, particularly to harness technology in the better delivery of justice.
To implement these reforms requires dedicated and full-time leadership both at the Supreme Court and at each of the high courts.
Harish Narasappa is a lawyer and partner at law firm Samvad Partners. He is also the co-founder of DAKSH, a civil society organisation that was involved in the making of the IJR 2019