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The legal course of no action

For 25 years, Amar Kaur fought to get justice for her son, son-in-law and driver, who were not seen after allegedly being kidnapped by former Punjab Director General of Police SS Saini. In December 2017, she died at 100.

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Satya Prakash in New Delhi

For 25 years, Amar Kaur fought to get justice for her son, son-in-law and driver, who were not seen after allegedly being kidnapped by former Punjab Director General of Police SS Saini. In December 2017, she died at 100. Justice had eluded her. Some say, justice died with her. Kaur’s son Vinod Kumar, an automobile businessman, son-in-law Ashok Kumar and their driver Mukhtiyar Singh never returned home after being picked up by the police on March 15, 1994.

A criminal case was registered against Saini and others by the CBI on the orders of the Punjab and Haryana High Court on March 24, 1994. The case was transferred to Delhi by the Supreme Court in 2004 after Kaur expressed apprehension that Saini being a senior IPS officer might influence witnesses. But a year after her death, the case is still hanging fire.

Her other son, Ashish Kumar, who is now pursuing the case, says, “It’s quite frustrating. There have been times when I have felt like quitting. But when I think about it, I feel as if my brother and brother-in-law are asking me not to quit. I want justice for my family. Until then, my mother’s soul won’t rest in peace.”

Unfortunately, Amar Kaur’s is not the only such case. There are millions of other litigants whose cases are stuck at some level or the other in the Indian judiciary, notorious for working at snail’s pace.

Magnitude of problem

The Indian courts have a backlog of more than three crore cases at various levels. Of these, more than 2.76 crore cases are awaiting adjudication in the subordinate courts while 43 lakh remain pending in the 25 high courts spread across the country. The Supreme Court has its own share of the burden — 57,346 plus cases. These figures relate to the mainstream court system. If the cases pending in various tribunals and consumer courts are included, the figures would shoot further up.

“The judiciary has never been on the priority list of the political establishment. Successive governments have ignored it. Now it appears that the government is focusing on judicial reforms of various kinds, but the task has been ignored for far too long,” says KC Mittal, chairman, Bar Council of Delhi.

Judicial vacancies in SC and HCs

Against the sanctioned strength of 1,079 judges, the high courts are functioning with only 695 judges, while 384 posts are vacant. Similarly, there are five vacancies in the SC, which is functioning with only 26 judges as against the sanctioned strength of 31 judges. The situation is likely to get worse in the top court as three more judges, including CJI Ranjan Gogoi, are due to retire this year.

Subordinate courts fare no better

The vacancy situation in subordinate courts is the worst. On the eve of Independence Day last year, Union Law Minister Ravi Shankar Prasad wrote to the chief justices of all high courts requesting them to expedite the process for recruitment of judicial officers for subordinate courts where 5,223 of the sanctioned posts of 22,444 were lying vacant. “One of the underlying reasons behind the high pendency is sometimes the inordinate delay in filling up the vacancies of judicial officers,” Prasad wrote. Chief Justice of India-designate Ranjan Gogoi has blamed high courts for delaying the process of appointment of subordinate court judges.

The government and the judiciary have been trying to tackle it. A mechanism was created in the form of ‘Conference of Chief Ministers and Chief Justices’ to discuss important issues confronting the judiciary. However, it has not been able to deliver.

India spends less than 1 per cent of its national budget on the judiciary. It needs to increase that. Besides this, there are several reasons behind the huge pendency of cases. Issues of manpower, infrastructure, lengthy procedures, frequent adjournments, delayed introduction of use of information technology, absence of professional court managers and judicial impact assessment — all contribute to the mess.

Poor judge-population ratio

The problem of pendency can’t be tackled without sufficient judicial manpower. Unfortunately, as judicial appointments are primarily in the hands of the judiciary, it can’t blame the government for huge number of vacancies as appointments remain in their own hands, notwithstanding some occasional face-offs on certain appointments in the top courts.

In 1987, the Law Commission in its 120th report recommended that India should have 50 judges per million (population) as against 10.50 judges back then. The figure has now barely reached 17 judges per million but it’s nothing compared to the US or the UK where it stands at 107 and 51 judges per million people respectively.

Indian judges are overburdened. An average Indian judge decides 2,600 cases a year — many more than a judge in any advanced country.

Mittal feels filling up vacancies should be the top priority to deal with the huge pendency of cases. “Without the requisite number of judges, no other measure would work. I am glad that the Chief Justice of India is focusing on filling up judicial vacancies at all levels.”

“Docket management has been a problem. Even the existing judicial manpower can be used in a better manner if the judicial time is utilised for disposal of cases rather than devoting disproportionately higher time on procedural issues,” Mittal adds.

Alternative dispute mechanisms

To ease the burden of cases on the mainstream court system, several alternative dispute mechanisms have been created in the last few decades, including mediation, conciliation and arbitration. One such experiment is Lok Adalats where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably. 

Lok Adalats were given statutory status under the Legal Services Authorities Act 1987. Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law. If the parties are not satisfied with the award of the Lok Adalat, though there is no provision for an appeal against such an award, they are free to initiate litigation by approaching the court of appropriate jurisdiction. As on September 30, 2015, over 15.14 lakh Lok Adalats had been organised across India and more than 8.25 crore cases had been settled by use of this mechanism. However, it is just a drop in the ocean.

Problem multiplying

The problem is likely to get worse in the coming years. A 2012 report of National Court Management Systems has projected that the number of cases being filed would reach 15 crore in 30 years, requiring 75,000 judges. (See graphics)

With the income and educational profile of Indians improving very fast, the number of people knocking at the doors of the judiciary is expected to go up significantly, multiplying the problem.

Way forward

Time demands that the government and the judiciary work in tandem. The ‘Conference of Chief Ministers and Chief Justices’ should be put to better use and its decisions be implemented in a time-bound manner. Any further delay could completely derail all calculations of case management and the struggle to clear the backlog could become a never-ending exercise.

The backlog 

  • More than 2.76 crore cases await adjudication in subordinate courts
  • Almost 43 lakh cases pending in 25 high courts
  • 57,346 cases pending in the Supreme Court

Judicial vacancies 

  • Out of total 22,444 posts of judges in subordinate courts, 5,223 are Lying vacant
  • Against the sanctioned strength of 1,079 HC judges, 384 posts remain vacant
  • Five vacancies in SC; it is functioning with only 26 judges against a sanctioned strength of 31 judges

Burgeoning problem

  • As India’s literacy rate and per capita income rise, it is estimated that in the next 30 years, the number of new cases filed per 1,000 population will increase from the current rate of about 15 (up from roughly around 3 cases per 1,000 population 30 years ago) to about 75 cases.
  • Global and national experience shows that the number of new cases filed into a judicial system increases with literacy and economic wealth.
  • With a literacy rate of over 90 per cent, Kerala has some 28 new cases per 1,000 persons as against some 4 cases per 1,000 in Jharkhand, which has a literacy rate of 53 per cent.
  • According to 2012 National Court Management Systems (NCMS) report, although the number of judges increased six-fold in the last three decades, the number of cases shot up 12 times.
  • The judicial system is set to expand significantly over the next three decades, rising by the most conservative estimate to at least about 15 crore cases requiring at least 75,000 courts/judges, says the report.
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