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117 Maximising Judicial Time: Measures to Combat Delay and Pendency in Subordinate Courts
Abstract
In this chapter, the author identifies and recommends essential steps that need to be taken to address the problem of delay and pendency in the subordinate judiciary, which are based both on analysis of data collected by DAKSH as well as interactions with members of the higher judiciary. The author says that appointing dedicated administrative personnel, managing cause lists, and using technology are crucial to reduce uncertainty of hearings and maximise judicial time, and must be put in place at the earliest.
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Over the last few years, DAKSH has closely studied delay in the disposal of cases and the enormous backlog faced by the judiciary. Apart from gathering and analysing data relating to cases, we have interacted with several judges — both from the higher judiciary and the subordinate judiciary, registrars, court clerks, and other officers working in the registry and discussed this problem with them. In this brief chapter, I identify certain essential steps that I believe need to be taken to address the problem of delay and pendency in the subordinate judiciary.
CREATING A CADRE OF DEDICATED SENIOR ADMINISTRATIVE PERSONNEL
A fact that is obvious to any serious student of the judicial system is the cottage-industry approach to administering the system. The Constitution vests the power and responsibility to administer the judiciary in each state in the office of the Chief Justice 118 of the High Court of that state. The Chief Justice is also a full-time judge, generally from out of the state, appointed on the basis of his seniority in the higher judiciary and his skills as a judge. Other senior judges in the High Court (who are also full-time judges) assist the Chief Justice by sitting in various committees that are constituted by the Chief Justice in his discretion.1 There are no published rules for either the constitution or functioning of such committees. The registry at each High Court is headed by a Registrar General and other Registrars, Joint Registrars, and Assistant Registrars who are responsible for the day-to-day functioning of the High Court and sometimes, the subordinate judiciary. Each of these senior officers is also a judge from the subordinate judiciary, who has been posted to the High Court registry for a period of time. Some of them go on to become High Court judges, while others return to serve as subordinate judges. The primary skill set of each these officers is that of a judge. None of them has any administrative skills, except those that they learn on the job and through ad hoc short-term training programmes at various judicial academies. This is shocking, as the judicial system is now a complex one with many intricate processes that need constant monitoring. There is an urgent need to create a cadre of senior administrative personnel to take charge of the administrative functions of the judiciary.
There are three kinds of problems — time, skill, and process implementation. Not enough time is spent on administration of the judiciary. All decisions pertaining to the subordinate judiciary have to be taken by the Chief Justice, assisted by one of the committees. The Chief Justice and the other High Court judges, being full-time judges, focus on administrative issues only when time permits. Consequently, administrative matters do not get the attention they deserve.
Neither the High Court judges nor the senior registrars, who are subordinate court judges, have the necessary skills to administer a complex judicial system. Administering the judicial system requires knowledge of and ability in information technology processes, human resource management, qualitative and quantitative analytical tools, infrastructure management, and customer service skills. These skills need to be learnt, both in classrooms and by practice over time. A system filled with part-timers whose attention is focused on another job has very little chance of excelling, or even achieving competence, in these aspects.
This lack of time and skill affects the implementation of every good idea proposed to reform the judiciary. Over the last two decades, several policy decisions have been taken by the higher judiciary and the government to improve the efficiency of the subordinate judiciary and reduce the severe backlog. However, on the ground, nothing much appears changed, since lack of, or poor, implementation has plagued all these efforts. Let us take two examples. The Supreme Court in Salem Advocate Bar Assn. (2) v. Union of India2 mandated the framing and implementation of case flow management rules. This order was passed in 2005, and 12 years later, only 14 High Courts have notified the subordinate court case flow management rules.3 Such of those High Courts which have drafted and gazetted the rules have not implemented the rules in practice. A good policy, which was the outcome of a judicial proceeding, has in effect been ignored due to the inability of the High Courts and the subordinate judiciary in implementing it.
Similarly, directions given by the Supreme Court on the judicial side have also not been implemented due to the lack of support on the administrative side. For instance, in March 2017, the Supreme Court passed an order in Hussain v. Union of India4 prescribing guidelines for High Courts and subordinate courts on disposing criminal cases speedily, including bail petitions and treatment of cases involving undertrial prisoners. The order directed 119 High Courts to frame rules for subordinate courts to enable implementation of the principles declared by the Supreme Court. The Court itself noted that most of the guidelines that it had prescribed in the case had already been set out in earlier cases5 repeatedly, but no difference was being seen in the daily functioning of the subordinate judiciary.
Implementing the Supreme Court’s orders requires efficient day-to-day functioning of the subordinate courts, and in particular, maximising a judge’s time on a daily basis for making decisions. Currently, the institutional mechanism that supports the judge is not geared to assist her in managing her time in court better. It is this reality that has resulted in the inability of High Courts to effectively implement the case flow management rules and the guidelines mentioned above. Capacity has to be developed to enable judges and administrative staff to use technology and management processes to make their day more efficient. Unfortunately, at the moment, neither the subordinate courts nor the High Courts have such capacity. Creation of a full-time senior administrative cadre for the judiciary is inevitable and needs to be done at the earliest.
Appointment of full-time administrators is a decision that can be taken by the Chief Justice of each High Court. It does not require elaborate approvals by different institutions. In other countries, significantly the United Kingdom, on whose courts our courts are modelled, there exists a full-time administrative body to administer the judiciary. After the enactment of the Constitutional Reform Act, 2005, the administration of the Supreme Court is supervised by the chief executive, a non-ministerial statutory office. The administration of all other courts and tribunals in the United Kingdom is carried out by an organisation named Her Majesty’s Courts and Tribunals Service in the Ministry of Justice.6
The judicial system has to empower subordinate judges to deliver timely justice. Steps need to be taken to maximise judicial time in order to give judges enough time to get through their day’s work. In a time and motion study carried out by DAKSH,7 it was found that between 45 and 55 per cent of court time is spent on non-substantive issues, such as re-issuing summons, fixing dates for future hearings, and similar case administration decisions.8 Delegating these functions to an administrative officer will give every judge nearly double the time each day for dealing with substantive matters and can significantly improve day-to-day efficiency.
The case flow management rules notified by most High Courts already provide for such delegation. However, this has not been implemented successfully because the registry in the subordinate courts does not have suitable officers who can deal with these issues authoritatively. An immediate step that can be taken is to appoint retired district judges for a period of two years to deal with the procedural matters in the registry. This will ensure that proper procedure is followed during the initial period of implementing the case flow management rules and also help the subordinate courts to evolve an efficient longer-term process to deal with administrative matters. With all subordinate courts now linked through the e-courts website, it is possible to leverage the technology to deal with most of the procedural hearings outside court time. Until the stakeholders in the system get comfortable with using technology, and suitable officers in the registry are appointed to deal with procedural issues, retired judges can help usher in the new system.
120 BRINGING CERTAINTY TO EACH HEARING
Any regular visitor to the courts is aware that uncertainty is the name of the game each day. Although a case may be listed on a particular day for a certain stage (and sometimes only after great effort by the lawyer/party), there is no assurance that a case will make progress on that date. There are many reasons why this happens: the judge may have too many matters listed that day, a witness who has to be cross-examined may not be available, the lawyer who needs to conduct the cross-examination may not turn up, the judge may not turn up or may not want to hear the case that day even if sufficient time is available, the files of the case may not come to the court hall from the registry … the list goes on. Practising lawyers have an endless list of the reasons they encounter in court which results in the case not proceeding. This uncertainty extends even to stages where only lawyers and judges are involved, for example, during written or oral arguments in the case, and not just stages where other people such as doctors, police officers, or witnesses are involved. Unless this uncertainty is removed from the equation and hearings are effective on each date, there is no hope for reducing delays or pendency.
In a comparative study conducted by DAKSH to analyse reasons for delay in High Courts and subordinate courts, a total of 91,797 hearings for 6,167 cases were examined across 12 courts. It was found that for 40 per cent of the 91,797 hearings, other than the date of hearing, absolutely no additional information on proceedings during the hearing had been provided. Of the hearings for which information was available, 47 per cent were adjournments. The reasons for adjournment were varied and attributable to all the actors in the system, including the judge, parties to the case, advocates, witnesses, and court administrators. This enormous uncertainty needs to be eliminated.
MANAGING CAUSE LISTS
As per data from the DAKSH database, the average number of cases listed each day before a subordinate court judge in India is 87. This is far too many, given that a judge sits in open court for only about five-and-a-half hours. This means that, on average, judges have a little more than three-and-a-half minutes to spend on each case. The long list and the pressure to hear each listed case affects the fundamental concept of a fair hearing. Listing a large number of matters daily puts judges under severe stress, thus not allowing them to perform optimally. If judges are given lesser time to hear matters and write orders or judgments, the quality of such orders or judgments will naturally be affected adversely. While considering the number of cases to be listed daily, the courts should also consider the daily workload of judges and the amount of time a judge needs for each hearing. Further, listing a large number of cases means that uncertainty increases, as everyone knows that the judge has to adjourn at least 50 per cent of them, as she simply cannot proceed with all of them.
While some judges manage their cause list well by ensuring that they do not list too many matters, the majority of the judges do not list matters in a scientific manner. As every date of hearing is arrived at after a round of negotiations between the judge and the lawyers, without much consultation of the calendar of all parties involved, most hearings are scheduled in an ad hoc manner, adding to the uncertainty of proceedings. A uniform method of fixing dates for hearings in compliance with 121 the case flow management rules is a good place to start to bring certainty to the proceedings and as a means to manage cause lists.
USING TECHNOLOGY
There has been considerable effort by the government and the judiciary to use technology in the functioning of the judiciary. The e-courts project has ensured that case information and data, although limited, from nearly all of India’s courts are available online. However, currently, technology is being used as a reporting mechanism only and not as a tool to bring efficiency into the court process.9 Merely moving processes from paper mode to digital mode is not going to help improve efficiency. Steps must be taken to integrate the digital mode into the legal process, and vice versa, to ensure that technology benefits the legal process. A simple example is to integrate the allotment of dates and cause list management into the e-courts system based on all the cases that each judge deals with, the time available, the stage at which a case is being heard, and so on. Currently, judicial data is available as standalone pieces of information, and not in a collated form that will help in improving systemic efficiency.
Some recent initiatives suggest that there is a movement towards achieving this integration. The Karnataka Appellate Tribunal (KAT) is working on digitising its case records and adopting a new technological model to enable the effective tracking of case progress and allocation of workload between benches of the KAT.
Another initiative, which aims to use technology to improve efficiency, is the National and Policy Action Plan to implement and improve information and communication technology (ICT) infrastructure.10 In 2016, Justice Naveen Rao’s court hall in the High Court of Judicature at Hyderabad was the first court in the country to be chosen under the plan to go paperless and use the integrated knowledge management information system. The system is designed to integrate various stakeholders, such as police stations, with courts, jails, prosecution, and forensic science laboratories.11
INTERNALISING LEGAL PROCESS IN DAY-TO-DAY HEARINGS
Judges in the subordinate judiciary have to internalise the legal process, not only the Civil and Criminal Procedure Codes, but also the several directions, rules, and regulations issued by the Supreme Court and High Courts. This may appear a strange point to be making, since judges are presumed to be well-versed with the legal process, given that the conduct of a judge and the cases she hears are both governed by minute and intricate procedures enshrined in statutes. However, there is a difference between being well-versed in procedure and internalising the purpose and spirit of such procedure. I will illustrate this problem with an example.
Judges fail to record complete details of proceedings properly in the order sheet. As mentioned previously, DAKSH conducted a project to analyse reasons for delay in High Courts and subordinate courts. It was found that of the 91,797 hearings analysed, 37,043 (40 per cent) were unrecorded hearings, where no information about proceedings during the hearing were provided. Further, in an additional 7.25 per cent of the hearings, which were recorded as adjournments, no reason was given for the grant of adjournment. This shows that judges are operating in contravention of the Code of Civil 122 Procedure, 1908, which expressly states in Order 17 Rule 1 that reasons for adjournment must be recorded in writing by the judge. Unless judges operate the process in accordance with procedure, there is no chance of improving efficiency and addressing delay and backlog.
Judicial delay and the resulting pendency and backlog is a multifaceted problem and cannot be tackled by isolated efforts. It requires institutional will and commitment, something that the judiciary has only shown in rhetoric rather than action. For the rhetoric to translate into meaningful action, all of the above steps, in addition to others, need to be taken fairly quickly. They have to be carefully calibrated and can be tried out in pilot projects in various parts of the country before being implemented across all states.
Notes
1. Arun Sri Kumar. 2016. ‘Accountability in Judicial Administration’, in Harish Narasappa and Shruti Vidyasagar (eds.), State of the Indian Judiciary: A Report by DAKSH, pp. 55–63. Bengaluru: DAKSH and EBC. Available online at http://dakshindia.org/state-of-the-indian-judiciary/16_chapter_05.html#_idTextAnchor088 (accessed on 11 October 2017).
2. (2005) 6 SCC 344.
3. Seven High Courts have also enacted case flow management rules for High Courts.
4. (2017) 5 SCC 702.
5. Hussainara Khatoon (3) v. State of Bihar, (1980) 1 SCC 93; Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225; Akhtari Bi v. State of M.P., (2001) 4 SCC 355; Bhim Singh v. Union of India, (2010) 5 SCC 538; Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688; Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590.
6. Sandeep Suresh. 2016. ‘International Experiences in Judicial Administration’, in Harish Narasappa and Shruti Vidyasagar (eds.), State of the Indian Judiciary: A Report by DAKSH, pp. 83–91. Bengaluru: DAKSH and EBC. Available online at http://dakshindia.org/state-of-the-indian-judiciary/19_chapter_08.html#_idTextAnchor167 (accessed on 11 October 2017).
7. DAKSH. 2016. ‘Time-and-Motion Study of Four District and Sessions Courts in Bangalore, Karnataka’, DAKSH, available online at http://dakshindia.org/wp-content/uploads/2016/11/DAKSH-TIME-AND-MOTION-STUDY-OF-FOUR-DISTRICT-AND-SESSIONS-COURTS-3.pdf (accessed on 11 October 2017).
8. Prashant Narang and Surya Prakash B.S. 2016. ‘How to Maximise Judicial Time’, Livemint, 19 November, available online at http://www.livemint.com/Sundayapp/kaOOjQmldoouVxJ098RAIL/How-to-maximize-judicial-time.html (accessed on 11 October 2017).
9. Kishore Mandyam. 2016. ‘Reaping the Benefits of the e-Courts System’, in Harish Narasappa and Shruti Vidyasagar (eds.), State of the Indian Judiciary: A Report by DAKSH, pp. 41–45. Bengaluru: DAKSH and EBC. Available online at http://dakshindia.org/state-of-the-indian-judiciary/13_chapter_03.html#_idTextAnchor067 (accessed on 11 October 2017).
10. The National and Policy Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary is available online at http://hcraj.nic.in/action-plan-ecourt.pdf (accessed on 11 October 2017).
11. Hindustan Times. 2016. ‘Country’s First e-Court Opened at Hyderabad High Court’, Hindustan Times, 18 July, available online at http://www.hindustantimes.com/tech/country-s-first-e-court-opened-at/story-mj9EyVgHThqgD4z6jpQqkM.html (accessed on 11 October 2017).
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