Judicial Delays - (Indolink.Com)

-- By Dasu Krishnamoorty

Two hundred thousand prisoners are languishing in jails all over the country awaiting trial for several years now, according the Ministry of Law. Reason: Delays in administering justice. Keeping them in jails cost the treasury four billion rupees every year. The latest data on cases pending in courts are 3.1 million in 21 high courts and 20 million in subordinate courts. One of the reasons for judicial delays is shortage of judges. Yet, there are scores of posts of high court judges sanctioned but waiting to be filled up.

Former Chief Justice of India Dr. A.S. Anand says that despite the advice of several law commissions and other committees to increase the number of judicial officers, government had done nothing. However, according to a report on ´Laws´ Delays´ submitted to Parliament by a standing committee headed by Pranab Mukherjee in its winter session, the ball is in the court of the judiciary. "The judiciary in whom the power and responsibility now vest has failed to fill up vacancies in judicial posts promptly and punctually and those vacancies of judges in all courts contribute to the huge pendency in a big way." After the judgement in the Advocates-on-Record Vs. Union of India case in 1993, the initiative to appoint new judges and fill up vacancies is now the responsibility of the judiciary. The judiciary really cannot blame the government.

Supreme Court chief justice S.P. Bharucha puts the ball back in the court of the government, blaming it for cases remaining unheard because, according to him, it had failed to provide funds to set up more courts. He says less than one per cent of the gross national product was spent on the judiciary and the state would not be meeting its obligation of making justice available to the people if it failed to spend more on the judiciary on the grounds of financial stringency.

Another explanation could be that for a population of 1.2 billion, the country has only 13,000 judges, including the Chief Justice of India. This works out to only 10-12 judicial officers for a million of population. In the United States, the number is 137 for every million and in the United Kingdom it is 107. While there are 680 judges in high courts, 182 vacancies are still to be filled up. Plans to appoint at least 5,000 judges are waiting for government approval. The result is an unmanageable dump of judicial work.

Here is a classic case of judicial delay. The highest court in the country, the Supreme Court, took 11 years to acquit the headmaster of a school of the charge of taking a bribe for signing the salary arrears bill of his school. In another case of judicial delay, the victim was former Union Law Minister Dr. B.R. Ambedkar. The judgement came in his lifetime but it took 47 years for the Maharashtra government to execute the decree passed in his favour against illegal encroachment of his land by Pakistani refugees. By then he was dead.

Early this year a Doordarshan telecast showed an undertrial prisoner in Tihar jail complaining he had not been taken to a court for three years now and that he might die before a hearing took place. In fact, people have died waiting for a court verdict. Just before the Tihar episode, the Times of India reported how eight workers had died waiting for the court to deliver judgement on their petition for reinstatement. The court battle began in 1970 and ended 30 years later in the death of eight out of 37 petitioners for justice.

The Mukherjee report showed that a staggering 24.5 million cases needed to be heard in various courts in the country just six months ago and 2,000 of them in the Supreme Court itself. All this is a mockery of what the apex court had reiterated as obiter dicta in a case in March this year. "To have speedy justice is a fundamental right which flows from Article 21 of the Constitution (right to life)," the Supreme Court observed. Judges R.P. Sethi and K.T. Thomas said, "if an appeal (in a criminal case) is not disposed of within the aforesaid period of five years, for no fault of the convicts, they may be released on bail on such conditions as may be considered fit and proper by the court."

What is happening and who is guilty of these delays? Legal administration in India is lethargic and slow. Service of summonses takes an unduly long time. The recording of evidence takes the longest period in a civil trial. In several high courts civil suits have been pending for 20 years. In cases under the Land Acquisition Act, where the lands of the farmers are acquired and their livelihood taken away, compensation is paid never before ten years.

The antiquity of our laws could be another reason for the accumulation of cases. The courts are supposed to pay homage to the Evidence Act of the nineteenth century and the Code of Criminal Procedure of 1905. When Parliament was considering a bill to improve judicial procedures, a countrywide stir by lawyers blocked it. There are 1,500 obsolete laws that need to be taken off the statute book.

"We are still in the bullock cart age as far as court procedures are concerned. Information technology, which wiped off distances, has bypassed our judiciary. Why cannot we accept testimony on video? Why should witnesses be made to go round the courts, travelling long distances," asks Supreme Court judge B.N. Kirpal. He says, "all over the world pleadings are filed on e-mail through alternative dispute resolution route. The ball now is in the court of the legislatures." The Supreme Court succeeded to bring down the arrears of cases recently by introducing computerisation and better management techniques.

To reduce the massive pile of millions of pending cases, the 11th Finance Commission suggested that 1734 fast track courts should be set up. The first of the 869 such courts already set up opened in Hyderabad April last year. They were asked to first deal with criminal cases pending for two or more years and those of undertrials in jails. Of the 163 thousand cases transferred to them, these courts, with a life of five years, have so far disposed of 63 thousand cases. The federal government sanctioned Rs 5.3 billion special problems and upgradation grant for judicial administration.

The government is spending Rs 55 every day on each undertrial. The government wants to reduce the expenditure in jails and to urgently address serious human rights problems. But the work on launching fast track courts itself is slow. The Supreme Court said it was disappointing that the scheme by which fast tract courts were set up appeared to be a non-starter and that it did not seem to be all that attractive. Judges A.S. Anand, R.C. Lahoti and Doraiswami Raju said that the chief justices of the high courts were not aware of such a crucial scheme concerning the judiciary before the government announced the scheme.

Another reason is the wall between public opinion and the judiciary in the form of the Contempt of Courts Act. Informed critics balk from evaluating the performance of the judiciary for fear of attracting the provisions of the Act. Somehow it is difficult to reconcile the interest of a court in a contempt case with its role as the arbiter in the case. The judiciary denies itself the benefit of the wisdom of the public by keeping it at bay by flaunting the Act.

Writing in the Indian Express, its senior editor Coomi Kapoor says Indian judges tend to be notoriously thin-skinned about criticism and the most common remedy they choose to administer for any implied aspersion on their integrity lies in initiating contempt of court proceedings against the supposed offender. She says, "small wonder that the media is uncharacteristically faint-hearted when focussing on delicate issues like judicial reform, judicial accountability, judicial corruption and increasing judicial delays."