Introduction

‘I often think about how litigation or the threat of litigation affects people. It takes over one’s whole life. The fear of the lawyers and the courts, the delay, the tension when you have to appear…. It is time-consuming, expensive and nerve-racking.’

Judicial delay’, ‘backlog’, ‘pendency’—these are terms that have now become commonplace in discussions about litigation, courts, and the judiciary in India. The enormity of the access to justice problem, caused by an overburdened judiciary, is also well known. DAKSH’s two publications, titled State of the Indian Judiciary (2016) and Approaches to Justice in India (2017), have shed light on the problem of judicial delay through an empirical approach to understanding not only the effect of delay on citizens’ access to justice but also to examining the performance of the judiciary.

The dominant discourse in understanding judicial delays on a large scale involves studying the judiciary’s functioning through the lens of either procedural irregularities that preclude a speedy and effective trial or through the perceived lack of an adequate number of judges. Doing so means viewing the problem as internal to one institution—the judiciary—and overlooking the ripple effects of its inefficiencies on other institutions and individuals. In analysing the impact of judicial delay, it is imperative to go beyond calculating the costs and time spent on attending court hearings to a more nuanced understanding of the cascading effects of judicial delay.

Thus, in conceptualising this volume, we sought to go beyond dissecting the problem of judicial delay (and its causes and manifestations) and gain insight into the effects of delay—to understand the practical repercussions of judicial delay on the lives of people, organisations, institutions, and society itself. To this end, the chapters in this volume address the effects of judicial delay on society, bring to light the socio-economic impact of judicial delay on various categories of litigants as well as on different types of cases, and shed light on some lesser discussed ways to understand the problem of judicial delay.

CONSTITUTION, RULE OF LAW, AND SOCIETY

Is there a universal understanding of what constitutes ‘delay’? What are the effects of judicial delay on the idea of justice? Do different people or stakeholders experience the effects of delay differently? Contributors to the first section of this volume ruminate on these questions in search of an answer.

The first in the volume, Justice Jayasankaran Nambiar’s chapter, is a lament on how judicial delay has shaken the faith of the public in the judiciary. While noting his disquiet on this, Justice Nambiar describes how the legal fraternity—both lawyers and judges—suffer on account of delays. He reminds us that citizens’ trust in the justice delivery system stems from their respect for the judiciary as an institution, which was willed into existence by the same people when we gave to ourselves the Constitution, the fount of our legal system. He mentions the constitutional promise of access to justice, which means not merely having an adjudicatory mechanism to settle disputes but having one that is both adequate and effective. With this in mind, he reiterates the vision of the Constitution and exhorts all stakeholders in the justice system to take ownership of ensuring the steady and speedy progress of cases in court. He calls upon the government to provide adequate budgets for the judiciary to function effectively as a modern institution with all the necessary infrastructure, including technological infrastructure. Justice Nambiar calls upon citizens too, asking them to consider alternative means of dispute resolution, and tasks the government with the responsibility of increasing awareness about these pathways.

In their analysis of delays in the Indian legal system—causes and effects—S.S. Naganand and Sharada Naganand point out that one of the most unfortunate consequences of failure to obtain speedy disposal of cases in the judicial system is the resort to extra-legal remedies through the informal sector, some of which border on being illegal. Further, delays also lead to increased corruption and nepotism in governmental functioning. The authors urge the government, whom they cite as the biggest litigant in the country, to resolve disputes through mediation or conciliation to reduce the ever-growing burden on the judiciary and also advocate improvements to justice delivery through institutions, such as Gram Nyayalayas and Lok Adalats. To improve the judiciary’s functioning, they call for appropriate standards to be framed to make the government a responsible litigant and to provide the judiciary time frames within which cases must be decided, failing which penalties must be levied.

In his chapter, Harish Narasappa eloquently demonstrates why it is difficult to ascribe a numerical value in terms of time as to what constitutes ‘judicial delay’. He likens the plight of litigants to Trishanku, a king in Hindu mythology, who lives in a world that is neither heaven nor earth but somewhere in between, highlighting the ambiguity and uncertainty that always accompanies judicial delay. Illustrating this through four different cases decided by the Supreme Court, Narasappa points out how the concept of delay and its effects on litigants and society differ vastly from case to case and from litigant to litigant. He argues that a lengthy judicial process has the effect of rewarding illegal behaviour, with legality and illegality converging; eroding the socio-economic well-being of people, even across generations; and most significantly, increasing lawlessness and disincentivising respect for the rule of law.

In order to understand the reasons for lengthy judicial processes and its effect on access to justice, Amulya Ashwathappa reviews Arun Shourie’s book, Anita Gets Bail, as a starting point to provide context to the nature of hurdles faced by litigants in the judicial process. Ashwathappa uses Arun Shourie’s experience as the backdrop to her survey of litigants and cases in the Faridabad courts to examine how inefficient listing practices, the culture of adjournments, and lack of court infrastructure can affect the timely delivery of justice. She concludes that while procedural irregularities in a specific case can be seen as an isolated example and detrimental to that case alone, institutional inefficiencies affect all cases before the court and have a wide-scale, negative impact on society.

LITIGANTS AND JUDICIAL DELAY

The socio-economic impact of judicial delay on litigants varies considerably, depending on a person’s gender, their socio-economic status, and whether they are victims or accused of a crime. Judicial delay also affects legal entities and shapes their business decisions, and even affects the economy. In the second section of this volume, we focus on how various kinds of litigants experience the impact of judicial delay.

One section of the society that is most affected by delays in the criminal justice system is undertrial prisoners. In his chapter, Vijay Raghavan draws on his experience of working with undertrial prisoners to describe in bleak detail the various difficulties felt by such prisoners and their families, especially children. Undertrial prisoners and their families have to deal with the loss of their jobs and the economic drain on their (often) meagre resources, mental health problems, social stigmatisation and exclusion, and isolation. The women prisoners face even more acute troubles. In emphasising the hardships faced by undertrial prisoners on account of judicial delay, particularly the lack of agency with how their trials progress, Raghavan demonstrates a correlation between prisoners belonging to marginalised or socioeconomically disadvantaged groups and their increased distress.

The impact of a lax justice system on persons belonging to socioeconomically disadvantaged communities is even more evident when the plight of victims of human trafficking is studied. In their chapter, John Richard Ebenezer, Tina Kuriakose, and Ruth Thomas present the struggles faced by victims of human trafficking in their search for justice. Their account underscores how an inactive or lethargic justice system not only leads to socio-economic hardship for victims of human trafficking, especially sex trafficking, but also to deep mistrust of the justice system, resulting in very few people willing to stand up and fight against the atrocities they face. Acknowledging how various factions of the justice system fail the victims of human trafficking, the authors go on to recommend measures to be taken by the government, police, legal aid authorities, and the judiciary to alleviate the suffering of such victims on account of a systemic failure in guaranteeing their rights.

The social stigma and exclusion faced by those involved in a criminal case is well known. However, for a member of a marginalised community, the stigma is only accentuated. The chapter by Arpita Biswas explores the impact of litigation on members of the transgender and intersex community. Biswas explains how transgender and intersex persons are affected by the insensitive response of the justice system and society, not only when they are accused of crimes, but even as victims of crimes perpetrated against them. Apply ascribing the problems they face due to ‘invisibilisation’, Biswas notes that detailed studies regarding the effects of judicial delay on members of this community are limited, owing to lack of information collected by official sources on the crimes that involve them—whether as victims or accused.

While it could be argued that companies do not experience the trauma of delay with the same intensity as individuals do, prolonged litigation and judicial delay on corporate entities have a significant economic impact that needs to be measured and studied. Manaswini Rao does so by using judicial data and data from a private database. Rao meticulously analyses the impact of judicial delay on economic outcomes for companies—sales revenue, wage bills, profits, and legal charges. Specifically, Rao looks to understand variances in correlation between court performance and economic outcomes in different districts and states, and finds, among other things, that the effect of judicial delay on companies varies depending on their geographical location.

Almost every litigant that goes through the judicial process in India is inevitably affected by delays in the system. However, some are capable of anticipating the repercussions of litigation and planning their future course of action. One such litigant is a corporation. The chapter by Neha Munjral and Shelly Saluja explains how corporate entities handle the impact of judicial delays on business operations. It is said that companies often adopt a policy of proactive dispute prevention due to the time, costs, and efforts involved—of not only just legal teams but also key business executives. Companies often weigh the expense of running a legal dispute against its possible benefits and choose to assess their risks and identify ways to mitigate them. Munjral and Saluja also explain why some companies may choose a cautionary approach in handling disputes with the government or public sector undertakings, as litigation could hinder relations and hamper future business opportunities.

NATURE OF DISPUTES AND DELAYS

The extent of delay in cases is likely to be affected by the nature of the case being litigated, or its subject matter. Cases whose subject matter is complex are likely to take longer to be resolved than petty matters. Similarly, both the effects of judicial delay and the persons affected by it vary depending on the nature of the dispute. With this in mind, Section 3 of this volume seeks to understand the socio-economic impact of judicial delay based on the nature of litigation.

In his chapter on the burden of land acquisition cases, Alok Prasanna Kumar reveals intriguing patterns in the way litigation operates in such cases. Based on a study of cases in Karnataka, Kumar highlights the difference in case life-cycle patterns which are contingent on whether the land acquisition cases are appeals or original petitions, whether they concern questions of compensation or ownership of land, and the party moving the litigation forward—government or non-government parties. Mentioning numerous infrastructure projects being undertaken across the country to improve economic growth for which land acquisition is essential, Kumar stresses the need to identify bottlenecks and bring about appropriate reforms to tackle delays in land acquisition litigation to prevent them from affecting economic progress.

In any modern society, social progress hinges on ensuring the existence of a healthy democracy. Ritwika Sharma and Titiksha Mohanty discuss the manner in which election petitions are handled by the judiciary and analyse the reasons for delays in such cases. They find that prescribed timelines for disposal of cases are breached often, and by long margins, in violation of the legislative spirit that mandates expedited disposals of election petitions. Sharma and Mohanty call for the implementation of reforms to urgently address delays in the adjudication of election petitions to ensure sanctity in the democratic process.

The socio-economic prosperity of a society can be adversely affected by the problems faced by its labour and employment sector. In her chapter on the impact of judicial delay in labour litigation, Shruthi Naik examines litigation in the labour and industrial courts of Maharashtra to understand the life cycle of varied kinds of labour and industrial disputes, and how the disputes are adjudicated in court. An analysis of the cases showed that labour litigation significantly overshoots statutorily prescribed timelines, with contested labour matters taking a longer time to be disposed, as well as constituting a far higher proportion of cases, than uncontested matters. Recognising that labour and industrial disputes are likely to have a different impact on each stakeholder in such litigation, Naik discusses the effects of such litigation on employees, employers, and society. Naik also notes that conciliatory processes are effective in the speedy resolution of labour disputes, and advocates strengthening such measures.

With the Indian judiciary overburdened with crores of pending cases, looking at alternative means of dispute resolution is critical for ensuring speedy access to justice. But what if even such alternative means of dispute resolution require the support of the judiciary to be effective? Poornima Hatti explains how the support of the judiciary is vital to the arbitration process and examines how the procedural delay affects the progress of arbitration cases. Analysing the progress of cases in the backdrop of the 2015 amendment to the Arbitration and Conciliation Act, 1996, Hatti finds that the amendment is only partially successful since timelines are not being strictly enforced by the courts in the cases examined.

In another chapter, Aparna Ravi reviews the progress of insolvency proceedings under the Insolvency and Bankruptcy Code and assesses delays in cases before the National Company Law Tribunal (NCLT). Ravi notes that most cases used to bypass prescribed timelines, often citing pending litigation as the reason. However, with the passing of the amendment in 2019 to the Insolvency and Bankruptcy Code, 2016, which extends the timeline and restricts any further extension on the ground of pending litigation (though the amendment has, to an extent, been diluted by the Supreme Court’s ruling in the Essar Steel case in November 2019), Ravi remarks that only time will tell if this will have the desired impact of timely insolvency proceedings. She also cautions against the development of a policy bias in favour of resolution over liquidation and states that a balance ought to be struck between pushing for a resolution and preferring liquidation, as forcing a resolution may only have the effect of delaying an inevitable liquidation. As the value of distressed assets deplete rapidly with time, economic and social costs of delayed insolvency proceedings will prove detrimental, she says, to the stakeholders with the passage of more time.

It is now common knowledge that the government is the largest litigant in the country and contributes heavily to the large volume of litigation pending before the courts. Any efforts to address the problem of a burgeoning caseload with the judiciary and the delays therein will inevitably be affected by the pace of litigation of cases involving the government. In his chapter on government litigation, Ajay Gupta discusses the efforts being undertaken by the central government to ameliorate delays in government litigation. Discussing the features and capabilities of the central government’s Legal Information Management and Briefing System (LIMBS), Gupta highlights the initiatives of the government in identifying, tracking, and responding in a timely fashion to cases pertaining to all ministries of the Government of India and their departments, sub-departments, and attached offices.

Malini Mallikarjun digs deeper into a specific kind of government litigation affecting numerous individuals directly and indirectly, which involves the education departments of states. Mallikarjun describes the challenge of tackling education litigation as a ‘wicked problem’ that is rooted in technical, social, and cultural challenges. While several factors may contribute to exacerbating the issue, Mallikarjun notes that the most problematic aspect is that the education departments are forced to dedicate so much of their time and energy to tackling their litigation that it has a direct impact on the attention that they ought to devote towards other critical functions such as school visits, field support to blocks, and assessing reports to ensure positive learning outcomes in education.

SYSTEMIC INFLUENCES

Are there any systemic influences that affect the functioning of the judiciary? Would an increase in judge strength improve the disposal of cases? Will the current functioning and workload of the judiciary determine its future functioning and workload? Do we have access to adequate information to estimate the impact of judicial delays? In the final section of this volume, we try to understand systemic influences on judicial delay and examine some limitations to effectively understand the impact of judicial delay.

A recurring suggestion to tackle judicial delays is increasing judge strength. But would increasing the number of judges result in a positive effect on case disposals? Surya Prakash B.S. and Siddharth Mandrekar Rao investigate this claim. Beginning with an explanation of the reasons for, and process of, establishing new courts, they conduct a careful statistical analysis of the performance of courts in two districts of Karnataka both prior to and post the introduction of new judicial posts. Prakash and Rao demonstrate that the introduction of new courts does not lead to better court performance, but in fact results in worse performance overall, thus breaking the traditionally held view that appointing more judges will result in speedier disposal of cases. Their analysis is a strong indicator that other causes for judicial delays must first be tackled, if we hope to see an improvement in the functioning of the judiciary and reduce judicial delays, and not merely focus on creating new courts or increasing the number of judges.

Arunav Kaul and Gaurav Banerjee argue that critically analysing and understanding the future workload and life cycle of cases is crucial in the quest to demystify delays, as well as reduce their occurrence and impact. Using predictive modelling tools, Kaul and Banerjee predict the future workload of courts and call for more attention to be paid to predicted workloads in order to be more prepared to tackle the problem of judicial delay. Further, recognising that the delay in disposing cases could be dependent on a host of factors, they analyse the correlation between disposal times for civil and criminal cases and various factors such as the number of days spent at the stages of evidence, notices, appearance, etc. to determine other causes that lead to judicial delay.

In a bid to quantify and measure judicial delay in terms of the time and effort spent on hearing cases, Sridhar Pabbisetty and Ritwika Sharma utilise the concept of ‘transaction costs’ from management studies to understand the cost of judicial delay. Through case studies of public interest litigation, Pabbisetty and Sharma analyse the time spent on hearing cases and estimate the transaction costs of such litigation. Advocating that the judiciary re-engineer data management systems to enable a more nuanced understanding of the impact of judicial delay, they demonstrate—as a first—how the impact of judicial delays can be understood from a managerial perspective, leading to a more informed understanding of the costs of judicial delay.

Faith and Trust

Judicial delay affects all stakeholders in the justice system adversely, and while the impact of such delay is borne primarily by litigants, our society and economy cannot escape its cascading effects. It is imperative for justice delivery institutions to not only recognise the impact of institutional failures in providing speedy and effective justice, but more importantly, work towards ameliorating the detrimental socio-economic effects of institutional inefficiencies in justice delivery. With a steady backlog of pending cases in courts across the country and lakhs of litigants directly affected by judicial delay, it is time to stop feeling resigned to judicial delay or accept it as an inherent part of adjudication. It is time to devise innovative methods to reduce systemic delay and critically reflect on ways to alleviate the often traumatic consequences of delays. Not doing so, and with alacrity, will only reinforce and harden citizens’ feelings of mistrust, dismay, and cynicism in the justice system. And that will be a continuing betrayal of our constitutional values.