Law may or may not be an a**; but in India it is a snail – it moves at a pace which would be regarded as unduly slow in a community of snails.”
-Nani Palkhivala
The Indian legal system is infamous for its backlog of cases, high pendency levels and delayed justice. As of November 2019, there were 59,867 cases pending in the Supreme Court, and 44.75 lakh cases in various high courts. At the district and subordinate court levels, the number of pending cases stand at a shocking 3.14 crore as reported by The Wire.
Inadequate judge-to-population ratio, piling up of decisions reserved and not delivered, granting of frequent adjournments, showcases the languorous nature of the judicial system in the country. It is also pertinent to note that the pandemic is not helping this cause either. With social distancing norms and virtual courts in place, only urgent matters were taken up by courts in the initial period of the lockdown to the prejudice of the general public.
In 2018, the Law Ministry had revealed that there are 19 judges per 10 lakh people on an average and that this statistic had gone up marginally if compared to past years, reported by The Economic Times. The issue of judge-population ratio was raised in April 2016, when then Chief Justice of India T S Thakur lamented the Executive’s inaction in increasing the number of judges to handle the “avalanche” of litigations, prompting Prime Minister Narendra Modi to assure him of the government’s resolve in finding a solution with the Judiciary.
In the inaugural session of a joint conference of Chief Ministers and Chief Justices of High Courts, Chief Justice Thakur had said that, “It is not only in the name of a litigant or people languishing in jails but also in the name of development of the country, its progress that I beseech you to rise to the occasion and realise that it is not enough to criticise. You cannot shift the entire burden on the judiciary.”
With inadequate judicial strength, what makes matters worse is when judgements are not delivered on time. In 2018, the Supreme Court in Asian Resurfacing of Road Agency vs Central Bureau of Investigation (Crl App. No. 1375/1376 of 2013), had laid down the principle that stay granted for trials in civil or criminal proceeding would stand vacated in “six months” from the date of that judgment (or six months if such stay were to be granted after the date of that judgment) unless extraordinary reasons are shown and the stay is extended by way of a speaking order. The court had noted that “in order to give effect to the legislative policy and mandate of Article 21 for speedy justice in criminal cases, if stay is granted, the matter should be taken on day-to-day basis and concluded within two-three months. If the matter remains pending for a longer period of time, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court.” Such a timeline was fixed by the court to expeditiously dispose of cases.
However, in 2019 a bench comprising Justice Sanjay Kishan Kaul and Justice KM Joseph in Fazalullah Khan v M. Akbar Contractor D (I.A No. 27524 of 2019) excused itself from staying with the ‘No Stay Rule’ and said that this 6-month cap on interim stay orders would not be applicable to orders of the top court. It observed that, “if the interim order granted by this Court is not vacated and continues beyond a period of 6 months by reason of pendency of the appeal, it cannot be said that the interim order would automatically stand vacated.”
The Law Commission of India’s 77th Report has revealed how adjournments granted by courts, slows down the justice delivery system even though the Order 17 Rule 1 of the Code of Civil Procedure lays down that court needs to mandatorily record the reasons for adjournments of the hearing since this rule restricts the number of adjournments to ‘three’ only.
Anil Rai v State of Bihar (Crl. App No. 389 of 1998) is a landmark judgment dealing with the culture of inordinate delay in pronouncing judgments. A division bench of Justices K.T Thomas and R.P Sethi strictly observed that the Magistrate took nine months to pronounce a judgment whereas a few judges of the Patna High Court took 2 years for the same. The Sessions Judge in this case had convicted nine persons on different counts including murder. All the convicted person filed appeals before the High Court of Patna. While remaining in jail, the convicted persons waited for their turn to reach the High Court to get time to hear their appeals. Days and weeks and months and even years passed without anything happening at the Court. In the meanwhile, one of the convicted persons died in jail.
“…What happens when the High Court Judges do not pronounce judgments after lapse of several months, and perhaps even years since completion of arguments? The Constitution did not provide anything in that area presumably because the architects of the Constitution believed that no High Court Judge would cause such long and distressing delays. But unfortunately, the later years have shown slackness on the part of a few Judges of the superior Courts in India with the result that once arguments in it is concluded before them, the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the Judges forget even the fact that such a case is pending with them expecting judicial verdict”, noted the court.
As part of remedial measures, the court in this case, issued a few instructions:
- The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned.”
- That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.
- On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter.
- Where a judgment is not pronounced within three months from the date of reserving judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.
- If the judgment, for any reason, is not pronounced within a period of six months any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments.
Has the Supreme Court followed its own guidelines?
The trend of reserving judgments and sitting on these for months for purposes of research, examine all the arguments advanced and writing the judgment continues in alarmingly high numbers. In Indian Young Lawyers Association v State of Kerala 2018 SCC Online SC 1690, or popularly known as the Sabarimala Temple case, the judgment was reserved in February, 2019 but not delivered up until November of the same year. The Naz Foundation case’s judgement that dealt with the legality of section 377 of the Indian Penal Code criminalizing |unnatural sex between consenting adults| was delivered around 20 months after being reserved.
The Mint had reported in 2016, that the design of the Supreme Court website makes it difficult to decipher with accuracy, on how many judgments have been reserved and for how long. This almost absentee system of keeping track of reserved judgments reveals the inefficient management of the justice system which is apparently constructed for the benefit of ‘We the People.’
Although the Code of Civil Procedure, states that judgements should be delivered within 30 days of arguments being closed under Order XX, this is only applicable to civil courts and places no restrictions in delivering judgements by the high courts and the Supreme Court.
The Central Information Commission (CIC) had directed the Supreme Court to maintain its record in such a manner that RTI applicants could be informed of the number of its reserved judgments. “We are of the view that the total number of such cases in which orders are reserved should be duly intimated to the public. Now that the benefit of computerisation is available, placing such data in the public domain should not be particularly difficult”, said the CIC to The Hindu. But despite this CIC direction, a division bench of Justices P.C. Ghose and Amitava Roy decided to dismiss RTI applicant Lokesh Batra’s appeal to maintain the data on its pending judgments and make the information public under the Right to Information (RTI) Act.
In the 2G Spectrum scam, the verdict on the grant of sanction for prosecuting former telecom minister A Raja and cancelling 122 licenses was reserved on November 24, 2010 and was finally delivered on January 31, 2012, 3 days before the retirement of Justice A.K Ganguly. However, Justice Ganguly who was part of this bench failed to take the blame and said that the delay was not intentional and that the judgments were reserved by his senior colleague Justice GS Singhvi. By pointing out that the top court should follow the measures provided by it in Anil Rai and not reserve any judgment for more than 3 months, Justice Ganguly told Times of India that, “litigants develop a grudge against the justice delivery system because of the delay in pronouncement of judgments. Their plight worsens when the judge, who heard the plea and reserved the judgment, retires without giving the judgment, entailing fresh hearings and resultant hardships.”
Ironically, the Supreme Court even after having laid down measures to be adopted by lower courts to ensure timely delivery of judgment has itself been plagued with massive backlogs and is slipping in ensuring the same.
Recent reminders
To cut excessive delay in pronouncing delay, the then Chief Justice of the Madras High Court, Sanjay Kishan Kaul had made it mandatory to mention on the first page of every judgment the date on which it was reserved followed by the date on which it was pronounced by creating a separate column in the judgments, immediately after the cause title (containing the names of petitioners and respondents), to mention the two crucial dates. This 2014 circular was issued in the light of the 2001 judgment of the Supreme Court (Anil Rai v State of Bihar). A similar reminder was sent to judges by the then Chief Justice Vijaya Tahilramanini in 2019 which said that E-Courts website and National Judicial Data Grid are most accessed websites and as the proceedings of the cases are being uploaded in the website, the parties concerned are watching the progress of the cases. She indicated that parties were sending petitions/letters over the delay in pronouncement of orders, after reserving the cases, as reported by Bar and Bench.
On October 29, 2020 a Supreme Court division bench comprising the undeterred Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy have noted that Judicial discipline requires in promptness in delivery of justice. They were considering an appeal filed against an order passed by Aurangabad bench of the Bombay High Court. The order, the court noted, was pronounced on January 21, 2020 being only the operative portion, and the reasons were published about 9 months later on October 9 in the matter Balaji Baliram Mupade v State of Maharashtra (Civ. App. No. 3560 of 2020).
“We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored, more importantly where oral orders are pronounced. In case of such orders, it is expected that they are either dictated in the Court or at least must follow immediately thereafter, to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rai’s case and as stated aforesaid, the problem gets aggravated when the operative portion is made available early and the reasons follow much later. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation”, observed Justice Kaul.
Delivery of justice in lower courts
As reported by the Times of India, a study was done by Indian Institute of Management, Calcutta in October 2019 revealing that absence of judges, repeated adjournments and failure of courts to simplify process has been adding on to the burden of massive accumulation of cases. It revealed that on an average, a litigant’s 2 and a half years of life was consumed in getting a judgment. Only 36 weeks out of these 2 and a half years were spent in court functioning and the remaining period was spent on the time waiting for orders or instructions from the High Court or adjournments for absence of judges due to leave, transfer or a busy schedule.
In State of Punjab v Jagdev Singh Talwandi 1984 AIR 444, the Supreme Court had pointed out the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts- that of pronouncing the final orders without a reasoned judgment. The court said that, “Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention.”
“If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment”, concluded the former Chief Justice of India Y.V. Chandrachud.
The ‘explosion’ in litigation numbers and overworked judges among other things have been contributing to inefficient and inadequate legal mechanisms. The life cycle of a case in India with seeking several dates, applications, its review application, appeals takes a few months or even years before the final disposal of the case. As reported by The Wire, in lower courts adjournments on sought on unreasonable grounds like being stuck on another case, weddings, travel or, on occasion ‘not being duly prepared’ to go on with the matter.
Case management via court managers should be aimed at for some resolve. Perhaps the India courts can imbibe something from the Kenyan Supreme Court that declared the country’s national elections invalid and called for fresh polls within 4 days of listening to arguments by both parties on September 1, 2017. A detailed judgment followed on September 20, 2020 where Justice Philomena Mwilu said that the election was neither transparent nor verifiable, as per the New York Times report. In order to ameliorate the judicial system, Indian litigants must start asking for timely pronouncements in their pleas to check judge’s discretion and keep the wheels of justice turning.
The Supreme Court judgment dated October 29, 2020 may be read here: