LIBERATING INDIA FROM THE SHADOW OF DELAYED JUSTICE: IMPERATIVE THEMES FOR CONSIDERATION

Abstract

Article 21 of the Constitution of India confers upon every individual a fundamental right not to be deprived of his life or liberty except in accordance with due procedure prescribed under laws that is reasonable, fair and just. Speedy trial is the essence of criminal trial and there can be no doubt that a delay in trial by itself constitutes denial of justice. ‘Right to Litigate’ and ‘Access to Justice’ are the two important ingredients of our Constitutional guarantees. But due to efflux of litigation the conventional litigation machinery is not able to bear this pressure. It still functions under the outmoded mechanisms. Adversarial legal system introduced by the Britishers is accused of being expensive, time consuming and had diminished people’s faith. After independence it was realized that there is a need for reforming this system and thereby to reduce costs and delays. The Law Commission at various stages has pointed towards the need of making suitable reforms in the litigation system. Litigation system, especially the way it is practiced today, presents a number of challenges including:

  • Difficulty in accessing Courts.
  • Cumbersome procedures eg: delay in supply of certified copies of judgments/orders.
  • Judge made delays
  • Understaffing/ vacancies.
  • Proliferation of Appeals.
  • Delaying tactics of Advocates like adjournments, concentration of work, pass over, non-compliance with time schedule, frivolous suits, absence of preparedness, strikes and indiscriminate closure of Courts.
  • Writ jurisdiction of high Court is invoked frequently.
  • Excessive burden posed on the Courts due to influx of litigation
  • Lack of effective case law management.
  • Poor and corrupt police investigation, unsatisfactory selection of government counsels.
  • Meagre allocation of expenditure for the judiciary.
  • Lack of priority for disposal of old cases.
  • Imperfect legislations.

All these challenges lead to reducing the credibility of the litigation system.

The present research paper is an attempt to analytically analyse the current scenario of the way litigations are conducted in India and the problems inherent in it. It will also give some pertinent observations for bringing about reforms in the way litigation is practised in India. This acquaintance assumes importance especially in the context that we are a nation that has high population but low Judge ratio and because it is imperative to make the litigation system more effective.

 RIGHT TO SPEEDY JUSTICE AND ACCESS TO JUSTICE

“Timely justice is the right of every litigant and speedy justice is the obligation of every functionary of the judicial system[1].

The ‘right to litigate’ or the ‘right to get access to justice’ has been amply provided in our Constitution as well as in international instruments. The Supreme Court has specifically recognized them as a human right and a key to defending other rights[2]. The Constitution of India under its Preamble has defined and declared the common goal for all i.e.: ‘to secure to all the citizens in India Justice Social, Economic and Political Liberty Equality and Fraternity’. The Indian Constitution by and large seeks to promote Rule of Law through many of its provisions like Article 14 of the Constitution that guarantees right to equality before law and the equal protection of the laws.  Article 21 of the Constitution of India states that ‘no person shall be deprived of his life or his personal liberty except according to procedure established by law.’ The Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by the Supreme Court of India as manifestation of fair, just and reasonable procedure enshrined in Article 21[3].  Right to speedy trial encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision, re trial and is applicable not only to proceedings before a court but also to police investigation preceding it[4].

Under Article 39-A of the Constitution, it is one of the most important duties of a welfare state to provide dispute-resolution mechanisms that is accessible to all the citizens for resolution of their legal disputes and enforcement of their fundamental and legal rights[5]. It mandates the State to ensure that the legal system promotes justice on the basis of equal opportunity without any economic or other disabilities. The Law Commission of India, in its 14th fourteenth report observed that unless some provision is made for assisting the poor man for the payment of court fees and lawyer’s fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justice[6]. Long pendency of cases in Supreme Court, High Court and Sub-ordinate Courts has become a matter of serious concern. 73% of our total jail population comprises of under-trials.  In such a scenario, justice that comes too late has no meaning. The prolonged and unending trial changes the priorities of an accused person towards life. He can lose everything on account of the pending proceedings. Therefore, speedy trial should be recognized as an urgent need of the present judicial system in order to decide the fate of lakhs of litigants[7].

Judicial Decision on Speedy Justice

One of the greatest challenges of the 21st century is the failure of judiciary to deliver justice expeditiously, which has brought about a sense of frustration among the litigants[8]. Access to justice to protect their fundamental rights is almost illusory for the weaker sections of our country due to their poverty, ignorance and illiteracy. The judiciary regarded it as its duty to come to the rescue of the underprivileged[9]. In East India Hotels Ltd. v. Syndicate Bank[10]  it was held that long delay in disposal of cases due to docket explosion became a ploy to scrupulous litigant to abuse the due course of law to protract litigation and remain in unjust or wrongful possession of the property. In K.K. Baskaran v. State Rep By Its Secretary, Tamil Nadu & Ors; decided on 4 March, 2011, the Hon’ble Supreme Court held that the conventional legal proceedings incurring huge expenses of court fees, advocate’s fees, apart from other inconveniences involved and the long delay in disposal of cases in Courts, would not have made it possible for the depositors to recover their money, leave alone the interest thereon.’’

In case of Hussainara Khatoon v. Home Secretary, State of Bihar[11], the right to legal aid has been specifically recognized as being a part of the fundamental right to life and liberty enshrined under Article 21 of the Constitution of India. It was observed that “legal aid is really nothing else but equal justice in action intended to reach justice to the common man. The Hon’ble Supreme Court lamented that it is a travesty of justice that certain people end up spending time in custody not because they are guilty but because the courts are too busy to try them, and they, as the accused, are too poor to afford bail. In case of Raghubir Singh v. State of Bihar[12], it was held that the right to speedy trial is one of the dimensions of fundamental right to life and liberty under Article 21 and to act fairly is one of the essences of the principles of natural justice.

In Bihar Legal Support Society v. Chief Justice of India[13], court observed that the weaker sections of society have been deprived of justice for long due to poverty, ignorance and illiteracy. The rights and benefits conferred by the Constitution have no meaning for them. Due to their socially and economically disadvantaged position, they lack the capacity to assert their rights. In case of Mihir Kumar v. State of West Bengal[14], it was held that where a criminal proceeding has been pending for fifteen years from the date of the offence it amounted to violation of the constitutional right to speedy trial of a fair, just and reasonable procedure and hence the accused was entitled to be set free. In the Common Cause” A Registered Society through its Director v. Union of India and Ors[15], the Supreme Court issued another set of guidelines to enable the release on bail of persons in custody whose trials had dragged on for inordinately long periods.

In Khatri v. State of Bihar[16], the Supreme Court reiterated that the court has recognized the right to legal aid as a Fundamental Right of an accused person by a process of judicial construction of Article 21. It further observed that the State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of being indigent. In A.R. Antulay v. R. S. Nayak[17], it was observed that fair, just and reasonable under Article 21 creates a right for the accused and the guilt or innocence of the accused should be determined as quickly as possible. Again in J.P. Unni Krishnan v. State of Andhra Pradesh[18], it was again held that right to speedy trial is covered under Article 21. In case of Anil Rai v. State of Bihar[19], it was held that justice should not only be done but should appear to have been done. Whereas justice delayed is justice denied, justice withheld is even worse than that. In Chajju Ram v. Radhey Sham[20], the court refused to direct a retrial after a period of 10 years having regard to the facts and circumstances of the case. In case of T.V. Vatheeswaran v. State of Tamil Nadu[21], court reiterated the significance of the right to speedy trial and extended it even to post conviction stage. It was held that undue delay in carrying out the death sentence entitles the accused to ask for lesser sentence of life imprisonment. In case of D.K Basu v. State of West Bengal[22], the Supreme Court issued guidelines in cases relating to detention arrest by police. It was held that failure of compliance with these requirements shall render the concerned police personnel liable for contempt of court.

In case of All India Judges’ Association v. Union of India[23], it was observed that independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges were not appointed, justice would not be available to the people, thereby undermining the basic structure. In P. Ramachandra Rao v. State of Karnataka[24], it was held that the constitutional philosophy propounded as right to speedy trial has though grown in the last two and a half decades but the goal sought to be achieved remains pending. Again in P.U.C.L. v. Union of India[25], it was observed that fair, open and speedy trial is the essence of Article 21 of the Constitution.

  1. PROBLEMS IN THE JUSTICE DELIVERY SYSTEM

Litigation’ ie: a controversy before a Court, does not always lead to satisfactory results. A case won or lost in a court of law does not change the attitude of the litigants who continues to be adversaries and go on fighting in appeals after appeals[26]. In spite of numerous rights and obligations provided to people under legislation, justice still remains a distant dream for the lay person. A common man may sometimes find himself entrapped in litigation for as long as a life time, and sometimes litigation carries on even on to the next generation. In the process, the litigant may dry up his resources, apart from suffering harassment. Those who are economically and socially disadvantaged see the entire legal system as irrelevant to them[27].

Litigants have identified the following six shortcomings with reference to adjudication by courts[28]: (a) delay in resolution of the dispute, (b) uncertainty of outcome, (c) inflexibility in the result/solution, (d) high cost, (e) difficulties in enforcement, (f) hostile atmosphere, (g) parties have no control over the result of their dispute, (h) complex and indeterminable procedures, (i) it harms relationships and causes emotional stress, (j) Legal case often fail to identify or address the real issues involved in a dispute, (k) Legal practitioners  are more concerned with winning than finding the truth or solutions, (l) legal process actually increases conflict between the parties who come to have their differences resolved  and (m) parties acquires a certain mindset and take extreme positions get polarized and will therefore express their  views in the most forceful way[29] ie: It is slow, expensive, and destroys relationships[30].

Statistics on Pendency: Courts overburdened-

Delays are common due to which credibility of the system can be best explained by the famous saying “Justice Delayed is Justice Denied” (William E. Gladstone). Justice still remains a distant dream for the lay person and the justice delivery system is on the verge of collapse. Litigants are only interested in getting their dispute resolved as early as possible within a reasonable time, through a process which is cheap, flexible and not based on rigid legal principles or technicalities[31]. Apart from delayed justice, there are two more issues of: (1) ‘docket exclusion’ i.e.: the injustice suffered by those who lack the means to access justice and (2) ‘succumbing en route’ i.e.: those who come to court, after waiting for few years, and despite being in the right, give up/abandon as they are unable to bear the cost and delay[32]. The 2013 World Bank Doing Business Report ranked India 186th out of the 189 surveyed countries on the ease of enforcing contracts, an indicator measuring the effectiveness of national judicial systems. The following table clearly shows the high level of pendency under which the formal legal system is unable to cope with the insurmountable challenge of arrears.

Statistics on Pendency in various Courts (as on 01/07/2013)[33]

S.No. IN THE COURT OF TOTAL
1. COURT OF ADDL. SESSIONS JUDGES 18564
2. ADDL. DISTRICT JUDGES 60829
3. MAGISTERIAL COURTS 276279
4. METROPOLITAN MAGISTRATES 59900
5. MOTOR ACCIDENT CLAIMS TRIBUNAL 16012
6. CIVIL JUDGES 54665
7. ADDL. RENT CONTROLLERS / RENT CONTROLLERS 10486

 

  1. REASONS FOR DELAY AND INACCESSIBILITY OF COURTS

Despite the above decisions it is a known fact that the Indian Judicial System suffers from the problem of delays and docket explosion in disposal of cases. Justice turned into injustice where:

“Law grinds the poor and the rich men rule the law”[34].

There are numerous direct and indirect costs of traditional litigation. As pointed by Fali S. Nariman, “the ‘judgment factory’ has become over-commercialized”, and quite a large number of cases are pending in various courts in India that can be attributed to this peculiar malady: ‘case law diarrhea’[35]. With respect to the current state of legal system, the Supreme Court in Guru Nanak Foundation v. Rattan Singh & Son observed[36]:

Interminable, time consuming, complex and expensive court procedure impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this lead them to Arbitration Act, 1940. However, the way in which the proceedings under the act are conducted and without exception challenged in courts, has made lawyers laugh and legal philosophers weep.

Millions are unable to access the system of administration of justice due to various circumstances including social or economically disadvantaged position, lack of awareness, cumbersome procedures etc. Some of the major reasons for spurt in litigation and problems in accessing justice in India can be categorized under the following heads.

  1. Influx of litigation: The population growth and awareness of rights in the people, has led to a flood of people approaching the courts of law, for the realization of their rights and to settle their conflict of interests. However the judicial system is not able to withstand the huge pressure of the awareness and resultant case load. Arrears are multiplying in leaps and bounds over the top of which our system is fraught with problems such as ‘low judge to population ratio’[37].
  2. Inordinate Delays and Expenses Involved: As stated above, litigation often involves huge expenses that defeat the purpose of justice. Law hardly reaches the vulnerable sections of the society where majority of the people are illiterate, rustic rural and ignorant about the existence of their legal rights and remedies
  3. State fighting the citizen: The government is the biggest litigant in the country. Around 70% of all cases are either agitated by the state, or appealed by it. The state fights cases against citizens at the cost of citizens[38].
  4. Difficulty in accessing courts: It has been noted that people face problems in physically accessing courts. Geographical distance of the courts is yet another reason behind people not able to approach the courts. Certain matters can be filed only in the higher courts, people may be required to travel long distances that may again deter them from pursuing the remedy available.
  5. Cumbersome procedures: The procedures prescribed by law are often cumbersome, difficult to comprehend and not litigant friendly that deter people from approaching courts[39].The rules and practice with regard to pleadings offer an incentive for mis-statements, misrepresentations, concealments and confusion. There is absence of preparatory and pre-trial procedures that can reduce the width of the controversy going to trial[40].
  6. Understaffing/ vacancies: The functioning of the legal system has changes due to the cropping up of new and diverse areas of litigation leading to immense increase in the quantum of litigation and no solution for early resolution of dispute has been found out.

 Judges Strength at various levels as on 01. 01. 2006[41]

S.No   No. of Sanctioned Posts of Judges No. of Posts Filled No. of Posts Vacant
1. India 14305 11650 2655
2. Supreme Court 26 22 4
3. High Courts 686 615 71
4. Delhi 392 266 126

 

Our population and litigation has increased, but there has not been corresponding increase in the number of judges[42].  The Law Commission in its 120th report, on ‘Man Power Planning in Judiciary:  A Blue Print’, submitted in July 1987 recommended optimum figure of 107 judges per million by 2000 (the ratio achieved by USA in the year 1981). It also recommended a ratio of 50 judges per million of population, within a period of 5 years (it is 12 – 13 judges per million). With this ratio the arrears are mounting[43].

  1. Judge made delays: Lack of punctuality and laxity contribute to the delay in disposal of cases. The grant of unnecessary adjournments adds on to the problem of delays[44].
  2. Advocates made delays: It is often seen that the Lawyers contribute to delayed litigations resulting in backlog. Reluctance of advocates to settle cases, stemming from their fear that they may lose the fee, if the case is settled[45]. Lawyers instead of reaching out to litigants exploit and prey upon them. Lots of cases are stimulated by the lawyers who are either nor required or could have been solved amicably. There is a lot of lawyer’s stimulated litigation. Cases which would have been solved amicably linger on for years. Delaying tactics of Advocates like adjournments, concentration of work, pass over, non-compliance with time schedule, frivolous suits, absence of preparedness, lack of punctuality in appearance all must be viewed seriously.
  3. Proliferation of Appeals: According to Nani A. Palkhiwala, “the court is no longer looked upon as a cathedral but as a casino: if you are dissatisfied with the trial court’s judgment, you double the stakes and go to the Division Bench; if you are dissatisfied with the Division Bench judgment, you treble the stakes and go to the Supreme Court”. Litigation involves lot of delay given the appeal/ revision/ review making the entire process expensive[46]. There is an unending list of several cases where judgments were delivered by courts after a long time. In some of the High Courts, final hearing is becoming a rare event[47].
  4. Adjournments and concentration of work: An unnecessary adjournment on frivolous grounds also extends the life of litigation[48]. To bring accountability to the judicial system it is a good step that now the judges Annual Confidential Reports (ACRs) that was based on weight age system will evaluated on the quality of judgments, number of cases disposed of etc. with negative marking for giving unnecessary adjournments[49]. Further, concentration of work with a few senior advocates is yet another reason for increase in delays[50]. Strikes and boycott from work by advocates and other staff adds to pendency. Sky rocketing and mounting arrears issue is one of the areas where very effective and strong urgent actions are warranted[51].. To make rule of law a reality, assurance of speedy justice should be extended to citizens..
  5. Other reasons for delays and pendency: The other reasons that contribute to delays and pendencies are;
  • Writ jurisdiction of high court is invoked frequently
  • Strikes and indiscriminate closure of courts
  • Imperfect legislations
  • Delaying tactics of litigants like not filling documents in time, seeking adjournments
  • Lack of priority for disposal of old cases
  • Lack of effective case law management.
  • Poor and corrupt police investigation
  • Unsatisfactory selection of government counsels.
  • Meagre allocation of expenditure for the judiciary.
  1. NEED FOR SPEEDY RESOLUTION- AREAS OF REFORM

There are certain policy interventions that need to be urgently initiated for curbing the court delays.

  1. ADR- The Missing Link: Due to globalization and liberalization, the need for speedy resolution of disputes in business is increasing[52]. The emergence of alternative dispute resolution has been one of the most significant movements as a part of conflict management and judicial reform, and it has become a global necessity[53]. The focus is generally not on the forum, but on the nature of the process and on the possible outcome[54]. The concept of ADR originated in the United States. Inspired by USA, several other countries including Australia, Canada, Germany, Holland, Hong Kong, New Zealand, South Africa, Switzerland and the United Kingdom have initiated their own ADR mechanism regimes[55]. Alternate Dispute Resolution is a less adversarial alternative to traditional litigation system. ADR mechanisms play an important role in doing away with delays and congestion in courts. ADR has been successful in many countries to that extent that over 90 % of the cases are settled out of the court. Thus there is a need to promote the Alternative Disputes Resolution Methods and publicized for easing Courts burden. Wide publicity and promotion should be given to the ADR.
  2. Role of Judiciary: Law enforcement should be done by the co-ordinated efforts of police administration and judiciary. Lack of punctuality in appearance by parties and their Advocates must be viewed seriously. Delaying action by the rival parties should be checked. It is required that the strength of judges should be increased along with improving the infrastructure. The judges should be trained about the techniques of Court management and case management for better administration of cases.  Increasing Court’s working days or hours, giving stays and adjournments in exceptional circumstance, curbing the creative expansion of writ jurisdiction and tendency on the part of some of the judges to leniently admit ordinary disputes and grievances and another areas of concern. There is a need to streamline the  judicial appointments by ensuring transparency in the process and appointments.
  3. Role of Advocates: It is also required that the Lawyers should change their mindset of exploiting litigants. They should be obliged to inform and encourage their clients to consider the possibility of reconciliation. Clients should be informed of the nature and purpose of Counselling and Mediation and other that Alternative Dispute Resolution. Special qualifications to be a lawyer at Mediation/ Family Courts/Counselling Centre should be prescribed. Lawyers’ lobby organise protests against interventions aimed at improving the judicial system. Judicial backlog and delays allows them to extract fees so they show non-cooperation. Lawyers representing disputes have an obligation and social responsibility of helping the ignorant and the underprivileged to attain justice.
  4. Change the Crime Investigation and Police investigation process: It is also expected that the Crime Investigation by the police forces should be made more scientific. Errors in police investigation or unnecessary time delays must be checked. Police should be trained to be respectful and courteous towards women in distress. They should inspire greater confidence in women. Capacity building, for handling delicate issues, among police personnel should be undertaken. If possible, only women police officials should be allowed to handle cases involving women. Networking among police stations should be increased and above all the police reforms should be undertaken.
  5. Effective Tribunal system: The Tribunal system was evolved in our country to provide an alternative to the regular Courts. It is cost effective and expeditious in comparison to the regular Courts. Unlike the Courts, the Tribunals may have a mixed composition consisting of persons with judicial experience and those without such experience.[56]Some of the important Tribunals in India include the Income-tax Appellate Tribunal, Central Excise and Gold Appellate Tribunal (now known as Central Excise and Service Tax Appellate Tribunal), the Debt Recovery Tribunals, Industrial Tribunal or Labour Court and others. There is a need to make the Tribunal system more effective.
  6. Reduce government litigation: Section 80 of Civil Procedure Code, 1908 states that no suit will be instituted against Government or public officer unless a notice of two months has been delivered at the Government office stating the cause of action and other particulars before enforcing the claim in the Courts. The reason is to avoid recourse to the Courts and to settle claims amicably without litigation[57], and that if it so wished can settle the claim without litigation[58] after considering its legal [59] Thus there should be a strict legal compliance with this provision aimed at amicably resolving the disputes.
  7. Case Management: A concept which has been developed in recent times. It implies that the Judge or an officer of the court sets a time-table and monitors the case from its initiation to its disposal. The importance to case management was raised by the Supreme Court and it suggested it should include effective litigation management and cost-and delay-reduction[60]. It should involve sorting of cases, scheduling of the cases, setting of time table and its follow ups and promotion for amicable settlement at an early stage.
  8. Legislative Changes: For expeditious disposal of cases, procedural delays should be curbed by suitable amendments should be introduced. Laws should be simplified and made victim-friendly. Judicial procedures should be revised and time limit should be prescribed for dispute adjudication. The Judicial Appointments Commission Bill, 2013, and The Judicial Statistics Bill, 2004 must be passed.
  9. Research and Evaluation: Continued evaluation of Judicial system through systematic study and research should be undertaken so that the Court mechanism can be made more effective.

CONCLUSION

Right to litigate and access to justice are the two important ingredients of our Constitutional guarantees. Article 21 of the Constitution of India confers upon every individual a fundamental right not to be deprived of his life or liberty except in accordance with due procedure prescribed under laws. The procedure prescribed under law has to necessarily be reasonable, fair and just.  Speedy trial is hence the essence of criminal trial and there can be no doubt that a delay in trial by itself constitutes denial of justice. But due to efflux of litigation the conventional litigation machinery is not able to bear this pressure. The judicial system is expensive and time consuming diminishing people’s faith in the legal system. It still functions under the outmoded mechanisms. There is a growing need to find out the other modes that are speedy and less costly. Therefore, it is essential that urgent reform should be undertaken to regain the faith of the common man in the judiciary. If such reforms are introduced it will surely make the litigation system more accountable, accessible and sensitive to the poor. These innovations and interventions will also release the Court from the long shadow of backlog that leads to denial of justice which plagues the current court system in India.


This Article is Written by Dr. Gaurav working as an Assistant Professor at the Centre For Post Graduate Legal Studies, TERI University New Delhi.


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[53] Justice Jitendra N. Bhatt, ‘A round table justice through Lok-Adalat (People’s Court)-A vibrant ADR in India’,  (2002) 1 SCC (J), p-10

[54] J.C.Goldsmith, Arnold Ingen-Housz, et. al., ADR in Buisness: Practice and Issues across Countries and Cultures, Kluwer Law International,  Netherlands, 2006, p-7

[55] Justice S. B. Sinha, “Mediation: Constituents, Process and Merit”, Nyaya Deep, oct 2006, Vol VII issue 4, p-31

[56] Sathe S. P., The Tribunal System in India, N. M. Tripathi Private Limited, Bombay, 1996, p.10.

[57] Amar Nath v. Union of India, AIR 1963 SC 424.

[58]  Ghanshyam Dass v. Domination of India, 1984 AIR 1004, 1984 SCR (3).

[59]  Raghunath Das v. UOI, AIR 1969 SC 674.

[60] Salem Advocates Bar Association v. Union of India,  2005 (6)SCC

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