NOT JUDICIARY BUT BUREACRACY
IS RESPONSIBLE FOR JUDICIAL DELAYS
While hearing a PIL by an NGO, The Hon. Chief Justice of India - Justice Thakur, in an emotional outburst, said
I shed tears of blood seeing plight of this country... ... Even though billions of rupees are spent on the salaries of the police and other officials but they do nothing”.
When CJI surrenders to the might of the Bureaucracy then one can only imagine the plight of an ordinary people. In 2009 a blue print for judicial reform was developed with the consent of the Bar, the Chief Justice of India, the Hon. Union Minister of Law & Justice & the Prime Minister & his Cabinet. The project started in 2011 and failed because the bureaucracy did not want it to succeed. All that the CJI could do was to shed a few more tears. This time the saline type.
Read related ArticlesFounder's Views
We must support Judges on the benches rather than think of appointing more to reduce delays in our courts. Delay is not caused by shortage of Judges but by poor court & case management practices. Backlog & Delay are two different things.
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We must support Judges on the benches rather than think of appointing more to reduce delays in our courts. Delay is not caused by shortage of Judges but by poor court & case management practices. Backlog & Delay are two different things.
Considerable amount of Judicial time is wasted in calling out cases to find out whether notices are served, whether defects are cured, whether affidavits, reply or rejoinder affidavits are filed, etc. This kind of work should not be done by Judges. It should be done by clerks.
Surgeons do not prepare a patient for surgery & then conduct surgery on the patient. But our judges do. They prepare a case for final arguments & then pass the judgment. Like the hospital management why can’t Court management prepare a case for final arguments.
On an average 25,000 cases are disposed off annually in the Delhi High court compared to 30,000 that are registered. About 5,000 cases add each year to the backlog. In 2009 the disposal rate exceeded the registration rate. It is very encouraging to see that the number of cases admitted by the Delhi High Court have not changed greatly in the past 10 years. But disposal rate has more than doubled in 10 years from nearly 10,000 cases disposed off in 2001 to nearly 25,000 cases disposed off in 2010” . There are many who argue that if Delhi High Court had the sanctioned number of Judges then there would be no backlog.
That is correct. But the problem with Indian Judiciary is not only of backlog. The main problem is that of Delay. Why should it take an average of 4 Years to dispose of a case of Civil Writ Petition when such cases are disposed of only after 2 hearings. The tragedy is that these 2 hearings happen after 3 years after the first hearing.
The only solution to delay is re engineering of procedures & proper court & case Management. At the end of 2010, fourteen Lakh cases were active in 5 district courts of Delhi. It is double the numbers that were active 6 years earlier. At the current disposal rate it will take 5000 Judges for a year to clear the back log of Delhi District Courts and 1200 Judges per year to maintain it. The figures convey a clear message that the solution can not emerge from increasing the number of Judges. It lies in minimizing wastage of a Judge’s valuable time.
We have reduced our Judges to the position of debt collectors for the rich & the influential. Our police force is assisting them. In Delhi a victim of serious crime ( Rape, Murder, Theft etc.) has to compete for Judicial time against somebody whose cheque has bounced .
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We have reduced our Judges to the position of debt collectors for the rich & the influential. Our police force is assisting them. In Delhi a victim of serious crime ( Rape, Murder, Theft etc.) has to compete for Judicial time against somebody whose cheque has bounced .
Roughly 5o % of all cases registered in Delhi District Courts ( or 66 % of cases registered in the Criminal Jurisdiction) , are those of Negotiable Instruments Act (NIA) , commonly known as Cheque Bouncing Cases. These cases have choked the Criminal Justice System for years but nothing is being done about it. Roughly 7 Lakh cases of NIA were pending, out of a total of roughly 14 Lakh cases, at the end of Dec. 2010 in Delhi District Courts.
An amendment to the NIA was passed in 2002 to facilitate quick disposal but it has failed in its purpose because the cause of delay was misunderstood while framing the amendment. In a case of NIA, which uses Criminal Procedure, trial can not start unless all the accused appear personally before a magistrate. This process takes a very long time. Summons and warrants are issued and the valuable time of police is wasted in chasing people who have no money to repay their small debts. The situation can be corrected with a fresh amendment but that has not happened so far.
Debt Collection is a civil matter in the West. Police never gets involved in Debt Collection.
Low number of Judges per million population in India compared to the West is an excuse for the Bureaucracy. Half of India’s population has nothing to eat & courts in India do not give away food. They snatch it.
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Low number of Judges per million population in India compared to the West is an excuse for the Bureaucracy. Half of India’s population has nothing to eat & courts in India do not give away food. They snatch it.
It is true that we have lesser number of Judges per million population compared to the West ( USA, UK, Australia etc.) but it is also true that millions of people who live on less than 50 Rupees per day in India judiciary has no meaning. They do not go to the courts to resolve their issues. Therefore comparison with the West on Judges per million is not valid. The correct criteria for comparison is the number of cases disposed by a Judge in India compared to the cases disposed by a Judge in the West. Cases instituted India are much lower in numbers compared to the West. There is a significant variations between states in India too. These data are not available to us but we have no doubt that India will score very poorly on this criteria. And by the way Judges in the west do not collect debts neither do they work as traffic inspectors. 50 % cases instituted in Delhi are those of Cheque Bouncing & an equally big number is that of Motor Vehicle Challans.
Let us face it. Courts in India follow the management system that they inherited in 1947.
Analysis of 7 years of data of district Courts of Delhi has revealed that 5 Judges dealt with 67 Cases a day where as 50 Judges deal with only 6 Cases a day. In between these two extremes 75 Judges dealt with 40 Cases a day, 120 Judges dealt with 24 Cases a day and 108 Judges dealt with 14 Cases a day. Of course, there are different categories of Judges and certain type of cases can only be handled by certain Judges etc. but the extent of unevenness in the load distribution clearly indicates that there is scope for massive improvement. It is a management issue.
UK has roughly 1800 Judges ( My source is Internet. Hence it is not confirmed ). Delhi has 360 Judges excluding the high court judges. Therefore, the number of Judges per million population between UK & Delhi are comparable. The infrastructure in Delhi Districts is not bad. It is comparable to the UK. UK’s entire population is potential litigant compared to a fraction in Delhi but Delhi’s pendency situation is not any better than the rest of India. Clearly the problem is not that of shortage of Judges or shortage of infrastructure.
Lawyers use adjournment as a strategy of defense. Judges oblige. Criminals exploit it. Supreme Court sheds tears of helplessness. “Tarikh per Tarikh” continues - more than ever before. Adjournment is the cause of pendency in India.
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Lawyers use adjournment as a strategy of defense. Judges oblige. Criminals exploit it. Supreme Court sheds tears of helplessness. “Tarikh per Tarikh” continues - more than ever before. Adjournment is the cause of pendency in India.
Analysis of 2 yrs and 9 months of data of Delhi High Court, from 2008 to 2010, shows that 1.4 Lakh cases were dealt in 7.4 Lakh hearings. Of these hearings 40% were simply adjourned. 35% dealt with procedural matters of preparing a case for final hearing. Only in 25% hearings judges heard arguments and passed interim orders & not necessarily Judgments. The adjournment is an accepted phenomenon in Courts in India. It is used as a strategic tool by lawyers in India. It is unheard of in the West with whom we compare, all the time, on Judges per million of population.
Let me put it in perspective :
482 is a special power given to a High Court to quash the proceedings of prosecution in a trial court. If the High Court quashes the proceeding of a trial court it implies that either the trial court judge is biased, corrupt, unnecessarily bent on harassing the petitioner or simply he/she has not applied his/her mind at in this case. Naturally this power has to be exercised by a High Court Judge very carefully.
I am respondent in a case of 482 Cr. Pc in Delhi High Court. This case has been adjourned 10 times in 3 years. After lodging the Petition where the Petitioner claims that the trial Court Judge has not applied his/her mind in summoning him he has virtually disappeared. Every time he or his junior lawyer is making an excuse & the case is adjourned.
The impact of this is that the original case in the trial court is also stopped for the past 3 years. The High Court has become the cause of delay in the trial Court. At least 20% of cases in the Delhi High court belong to this or similar category of cases called – Criminal Miscellaneous. I have been given to understand that there are specialized lawyers with specialized fees for such cases to get admitted.
Only re - engineering of procedures, combined with a proper management system, will reduce delays. Why wait to amend every piece of legislation & re engineer all procedures in all types of cases? Why not start those that are easy & non controversial. It is easy to change the Procedure for Civil Writ Petition. It will reduce delay in this category of cases & hence reduce overall pendency in high courts.
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Only re - engineering of procedures, combined with a proper management system, will reduce delays. Why wait to amend every piece of legislation & re engineer all procedures in all types of cases? Why not start those that are easy & non controversial. It is easy to change the Procedure for Civil Writ Petition. It will reduce delay in this category of cases & hence reduce overall pendency in high courts.
Quarter of all cases admitted to the Delhi High Court are Civil Writ Petitions. It takes roughly 25% of courts time. It makes perfect sense to start by modifying the procedure of handling a Civil Writ Petition. It is the simplest category to modify.
The cause of delay in a Civil Writ Petition is that when a Respondent is given a month to produce his defense it automatically becomes 6 months because the next hearing is after 6 months. The Petitioner gets another 6 months to produce a rejoinder and in between if there are a couple of adjournments then the case is already two years in the process of preparation for final hearing. Then the Respondent seeks a couple of adjournments etc. & the case is already in its 3rd year and the frustration mounts. This is how it takes so long for a case to get disposed off.
The solution clearly lies in ensuring that lawyers do to appear before a Judge for every step of routine processing. On the first hearing the Judge should decide whether the case should be admitted or rejected and if the case is to be admitted then the court Management should take over the process of preparing the case for final arguments. Lawyers of both parties should certify that their paper work is complete. Only then a date should be given to them for hearing before a Judge. The date should be given by the Court Management and not by a Judge. This procedure is used, successfully, in most countries of the world. It does not interfere with the discretion of a Judge or diminish his authority but simply makes better use of a Judge’s valuable time.
Often we are told that Computerisation will solve the problem of pendency. But that is not true. Delhi Courts are all Computerized & there is no lack of infrastructure. Then one wonders why Delhi Pendency doubled in 6 years between 2005 to 2010. The issue is that of management & not that of computerization.
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Often we are told that Computerisation will solve the problem of pendency. But that is not true. Delhi Courts are all Computerized & there is no lack of infrastructure. Then one wonders why Delhi Pendency doubled in 6 years between 2005 to 2010. The issue is that of management & not that of computerization.
Computerisation is necessary for proper case & court management. But to assume that by converting ordinary courts into E courts one can reduce pendency is rather naïve. Like wise, having a national database of arrears is a good idea but it can not be presented as a solution to the problem of delays. The pendency grid is a diagnostic tool, like an Xray or an MRI, that tells us the extent and the magnitude of spread of disease but it does not cure the disease. The cure lies in surgery. In the case of Judiciary the cure lies in providing sufficient time to Judges to listen to arguments and to write Judgments. This is possible only when Judges, like every where else in the world, do not get involved in case preparatory work. Let the management with the help of clever computerisation do it.
The Current Computerisation of Courts is in a very poor state of affairs. It is not because of lack of infrastructure or man power but because of poor design and poor software architecture.
Court Management can not be an old fashioned procedure of shifting files from one desk to another, issuing circulars and issuing guidelines etc. The decisions of management must be based on analysis of data in real time.
Court Management is an interlinked process of the following components
a. Real Time Data Collection system;
b. Decision Support System;
c. Monitoring and Compliance system.Such systems are simple to develop. It will not take substantial investment in development or in terms of additional manpower or hardware to operate it.
Delays in Judiciary
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