Judicial Delays: A Judge’s Lament

The efficacy of a judiciary lies not only in its ability to dispense justice but also in the timely delivery of it to its citizens. ‘Justice delayed is justice denied’ is the mantra often chanted by our superior courts, and that too for a good reason. The exasperation of our litigating public with the delays that plague our system cannot go unnoticed.

Our Constitution is unambiguous when it states that the resolution of our people, while giving to ourselves the Constitution, was to constitute India into a sovereign, socialist, secular, and democratic republic. By democratic republic, we envisaged governance based not only on democratic principles but also subject to the rule of law. The government comprises three organs—the legislature, entrusted with the task of making laws; the executive, entrusted with the task of implementing those laws; and the judiciary, entrusted with the task of interpreting the laws and supervising the actions of both the legislature and the executive so as to ensure that the said organs functioned in accordance with the constitutional mandate. The framers of the Constitution did not envisage a strict separation of powers between the three organs, as suggested by Montesquieu, but preferred to have a system of checks and balances operating between them so that each would check the inadequacies, or excesses, in the functioning of the other.

We have now completed close to seven decades of ‘working a democratic constitution’ to borrow the title of Granville Austin’s treatise on our Constitution, and these years have seen the judiciary grow in stature from being the least important democratic institution, to an all-powerful legal juggernaut that is ready to take on any task of governance that is thrown in its way. The metamorphosis from the classical role as an interpreter of the laws, that was played out in the initial years since the adoption of the Constitution, to the defiant activist role played during the post-emergency years, and the almost messiah-like role that it has adopted today, was no doubt prompted by political circumstances, but it has catapulted the institution to dizzying heights of stardom in a nation that is exasperated with the failures of the legislature and the executive. Our judges, who are very often seen as high priests of our civic religion, must realise, however, that what really preserves judicial power in any society is the towering respect and esteem in which the public holds the judiciary.

The legal system in India emerges from a Constitution that ‘We, the people of India’, have given to ourselves, and hence the judiciary, as one of the organs of governance, is an institution of our own making. Since we have willed into existence the institution itself, the duty to respect its decisions is something we have agreed upon as citizens of this nation. This does not, however, mean that once the institution begins to function, its efficacy will be ensured through a mechanical adherence by the public to its judgments. To command respect and esteem from the public, it is essential that a certain independence and dignity becomes an integral part of every aspect of the judicial system in our country. The faith in the judicial system must stem not from veiled threats or coercive measures, but from a respect that evolves in the minds of the citizens. The citizen must get the feeling that the procedure in court is one that will not prejudice his case in any manner. He must see the court as a place where his legal claims will be carefully scrutinised by erudite persons who will correctly apply the law and tell him whether his claim is one that is legally sustainable or not. It should not matter whether he ‘wins’ or ‘loses’ his case. He must be convinced of having received a fair hearing and feel that justice has been done.

It is here that a timely disposal of cases assumes importance. An employee in an organisation who challenges the denial of a promotion gets no justice if his claim for promotion is upheld on the eve of his retirement from the organisation or, as often happens, after his retirement. Many a claimant for pension dies without seeing his money and this persists despite rulings that recognise pension as a property of the citizen for the purposes of Article 300A of our Constitution. The frustration of an undertrial prisoner in custody, waiting for his case to be taken up, cannot be understated. Delays such as these erode the confidence that the litigating public has in our justice delivery system and hence, we need to adopt a policy of zero tolerance towards such delays, whatever may be the justification offered for it.

There is yet another aspect to this matter. The concept of access to justice is one that is recognised not only as an invaluable human right but also as a fundamental right in most constitutional democracies. The concept finds recognition in the Magna Carta of the United Kingdom, the Universal Declaration of Human Rights drafted in 1948, as also in the International Covenant on Civil and Political Rights drawn up in 1996, and is best summed up in the Roman maxim ubi jus ibi remedium—for every right that is breached, there must be a remedy. Inherent in the concept is the obligation of the state to make available to its citizens the means for a just and peaceful settlement of disputes between them as to their respective legal rights. In our country, a person’s access to justice has been recognised as an integral aspect of his right to life under Article 21 of our Constitution (In Imtiyaz Ahmed v. State of Uttar Pradesh,¹ the Supreme Court held that the rule of law, independence of the judiciary, and access to justice are conceptually interwoven). The position has been reiterated by a Constitution Bench in Anita Kushwaha and Ors v. Pushap Sudan and Ors.² Access to justice can also be seen as a facet of the right to equality before the law and equal protection of the laws guaranteed under Article 14 of our Constitution. Absence of an adjudicatory mechanism or the inadequacy or inefficacy of such a mechanism effectively robs a citizen of this valuable right and renders it a teasing illusion. If the process of adjudication is time-consuming and laborious, it would be frustrating for the litigant and could even dissuade him from seeking justice altogether. Thus, delays in the justice dispensation system effectively deprive a citizen of his fundamental rights under our Constitution.

The legal fraternity too suffers on account of delays. A lawyer is expected to advise his client not only on the merits of his case and the prospects of his succeeding in the litigation but also on the time frame within which such litigation will end. Prolongation of the indicated time would inevitably result in the lowering of the client’s confidence in his lawyer. Sometimes, the delay in the listing of a case results in timely interim orders not being obtained. While the delay may be on account of a fault by the registry, the client would invariably look to the lawyer for an explanation. Similarly, delays in adjudication of important and recurring issues, especially involving finance and taxation, make it impossible for lawyers to offer timely advise to their clients in such matters. Apart from the gloomy uncertainty, this could also entail the unnecessary locking-up of funds that would otherwise be available for commerce.

As for judges, nothing is more annoying and painful than having to adjourn a case in which they have come prepared for adjudication. Deferring the hearing to another date results in waste of judicial time and effort since the time spent on the case could have been more effectively utilised to prepare for another case. It also upsets the court schedule of the judge for that day, as the daily cause list might have been prepared after taking note of the adjudication time required for that case. Therefore, a system that ensures that only those cases that will be heard on any particular day are actually listed will eliminate such delays.

We have to understand that a legal system is meant for the people and a system that does not offer timely redressal of disputes is of no use to the citizens. The first step in solving the problem would be to identify the reasons for the delays that the citizens encounter.

Delays can arise from within the system and also from without. Foremost among the reasons cited from within the system is the frequent requests for adjournments made by lawyers. While one cannot rule out instances where a lawyer is unable to attend the court on account of illness or bereavement in his family, courts have to be strict while considering requests for adjournments on grounds such as nonreceipt of instructions from the client or the nonavailability of a client to sign affidavits or other such documents. A strict approach by the court in the matter of granting adjournments would, to a large extent, ensure that the hearing on the next date of posting of the case is an effective one. In appropriate cases, costs could also be imposed while granting adjournments so as to deter the litigant from seeking avoidable adjournments. Similarly, excessive posting of cases in a court by the registry can often lead to many matters not being taken up on a given day. Posting of cases in a court has to be preceded by a study that assesses the average time taken by the concerned judge to dispose a case in his court. Monitoring the disposal of cases in that court over a short period of time, such as a fortnight or a month, can easily capture such data. When it comes to individual judges, there is a need to maintain strict discipline in the matter of timely delivery of judgments. There can be no justification whatsoever for reserving judgment in cases for periods in excess of one month from the last date of hearing. Excessive delay in pronouncing judgments can only be counter-productive to the administration of justice, since the finer legal points that were argued by counsel would be forgotten with the passage of time.

With regard to external factors, one cannot ignore the lack of infrastructure and support systems that plague our subordinate courts. Infrastructural deficiencies also manifest in some of our High Courts. The requisite funds for financing the infrastructural requirements have to come from the respective state governments and not all of them are liberal in their budgets when it comes to allocation of funds for the judiciary. The state judiciary is often treated as yet another department of the state government, and the most neglected one at that. This practice must stop and the executive governments must take steps to assess the needs of the judiciary for the forthcoming year and make suitable provisions in their annual budget to allocate the necessary funds to the judiciary. Without this, the constitutional vision of an independent judiciary would remain a mere aspiration.

Infrastructural support, in modern times, calls for improved technological infrastructure. With data capture emerging as the most important tool for designing efficient systems within an organisation, the judiciary has to be equipped with the latest software for ensuring a smooth workflow. The task of bringing about a uniform procedure that will govern all courts in the country will, without doubt, require Herculean efforts, but we cannot shy away from the task. Further, while going about the said task, we need to constantly update our technology to make it user-friendly to members of the legal fraternity as well as the litigating public.

Lastly, we need to remind ourselves that while computerisation, digitisation, and use of artificial intelligence can ameliorate the problem of delay to a large extent, what is most important is the attitude of all stakeholders to the system of justice dispensation. Apart from judges, lawyers, and court staff, whose acts or omissions could contribute to a delayed dispensation of justice, as remarked previously, litigants would also need to adopt an altered mindset when it comes to a redressal of their grievances. They should explore alternate dispute resolution options, such as arbitration, mediation, or conciliation, so that they do not put pressure on an already overburdened curial infrastructure. The government has to take proactive steps to bring about increased awareness of the efficacy of these alternate dispute resolution options among the citizens and it has to instil in the people a confidence in such mechanisms.

Unless each of the stakeholders takes up a proactive role in addressing the issue, a solution cannot be found. Can we not, as responsible citizens, overcome our selfish desires and do our own bit to build a robust justice delivery system? I believe we can. We, the people of India, gave to ourselves our Constitution, and we owe it to ourselves to render effective the rights that it guarantees.

Notes:

1. (2012) 2 SCC 688.
2. (2016) 8 SCC 509.