Dimensions of Delay: An Analysis of the Indian Legal System

Introduction

There are two well-known adages in legal circles.

They are:

1. Justice delayed is justice denied and justice hurried is justice buried.
2. The winning litigant is really a losing litigant and the losing litigant is a dead litigant.

It does not require too much discussion to emphasise that an important facet of governance in any civilised society is an independent, proper, functional, efficient, and speedy justice delivery system. It is now well recognised that an independent judiciary is the bedrock of a democracy. A welfare state is not modelled entirely on the laissez faire principle but envisages an important role for the state in a country’s development; that of reforming its methodologies and institutions and making them responsive to society’s needs—social, economic, and otherwise. Among these institutions, a well-functioning and efficient judicial system is perhaps one of the most significant, as it is regarded as an institutional prerequisite for not only just social well-being— for the protection of the fundamental liberties of citizens—but also for robust economic growth. As a nation and its instrumentalities progress, their reliance on formal institutions increase and the judicial system is cast with the formidable task of redressing the grievances of litigants and protecting their rights that are guaranteed by law. An important question that arises at this juncture is whether justice delayed is really justice at all. In an ideal world, the justice system is expected to deliver expeditious and affordable justice in a manner that advances the rule of law and upholds the principles of fairness, equality and judiciousness, unbound by the tediousness of procedure.

Causes of Judicial Delay

While the causes of judicial delay in India are numerous, some key factors that contribute to a sluggish judiciary and lead to delays in imparting justice are attributable to the state. Often, the executive is unable to control its own organs, which results in aggrieved citizens resorting to legal remedies. An analysis of all litigation involving constitutional law¹ reveals that more than 50 per cent of the cases involve infractions of law and citizens’ rights by state instrumentalities. The Action Plan to reduce Government Litigation by the Ministry of Law and Justice, which is dated 13 June 2017, states that the government, including its autonomous bodies and public sector undertakings, are party to as much as 46 per cent of all current litigation,² making the government, as a single entity, the biggest litigant in the country.

Influential sections of society, including the corporate sector, also consume a substantial part of judicial time by high-flying, as well as sometimes frivolous, litigation that burdens the judiciary. The dilemma here is that the fees paid by these corporations to file such cases do not compensate adequately for the burden they place on the judiciary. It costs a mere 􀚒 100 to file a Writ Petition before the High Court of Karnataka³ and 􀚒 15 to file a Miscellaneous First Appeal⁴, which is less than a negligible cost for most corporations. However, the numerous expenses on the courts, including the salaries of staff, administrative expenses, etc., remain largely unaccounted for or are a burden on the state exchequer, not to mention consumption of the court’s time comprising several days and several hours.

A major contributing factor to judicial delay is the lack of guidelines with nation-wide applicability across the judiciary, instituted to ascertain the ‘average time’ a case should take, beyond which a ‘pending’ case becomes ‘delayed’. No record is kept of this information and hence no consequences arise therefrom. Resultantly, since no record of timeframes is kept, the possibility of reducing the incidences of delay and imposing penalties, when cases cross over from being pending to being delayed, does not arise. Developing such standards requires largescale, quantitative research across courts, surveys of legal practitioners and litigants, studies of procedure across case types, as well as a host of other steps, which need to be undertaken. Some government reports have attempted to set such standards, such as the 14th (1958) and 79th (1979) Law Commission of India Reports, in which the Law Commission laid down timeframes (although not mandatory) within which different case types should be disposed of. The Malimath Committee in 2003 and the Jagannadha Rao Committee in 2003 also suggested that cases pending for more than two years should be considered delayed. While these reports and suggestions are definitely a step in the right direction, their effectiveness to curb delay remains questionable in view of the absence of obligatory rules and penalties framed to limit the time taken to hear individual cases based on the type of case, when the aforementioned rules are violated.

Additional widespread inefficiencies that lead to a slower justice system range between those attributable to the court itself, such as an absent judge, insufficient time given to hear a case, the registry failing to perform its tasks on time, etc. Inefficiencies that are present in significantly higher proportion are, however, on the counsel side, such as an absent counsel, absent party, or seeking repeated adjournments, etc. The lack of a formal system of checks and balances, keeping track of the number of adjournments sought by the counsel or reasons, and timeframes for delays in the registry, as well as the imposition of severe consequences and penalties on the perpetrators thereof, be it the court registry, inefficient judges, litigants, or their counsel, perpetuates these inefficiencies and prevents the efficient functioning of the courts.

Effects of Delay—Social and Economic

The Civil Procedure Code of the 20th century still holds the field in the 21st century. The criminal justice system is assisted by the Code of Criminal Procedure of 1973. Both these have ensured that the orderly, systematic, and quick disposal of cases is nearly impossible. Such delays affect the citizens enormously and lead to a situation where they no longer have the confidence of obtaining justice within a reasonable time in the judicial system. This has led to extra-legal remedies that the society has fashioned in the informal sector. These mechanisms are not formal, based on law, or even recognised by law. An inefficient judicial system encourages corruption and nepotism in governmental functioning when greasing palms is taken for granted and everybody resorts to the same method. This also percolates to the judicial system, thereby eroding the faith of the masses in the judicial system.

The brunt of these shortcomings, unfortunately, is most often borne by the less fortunate members of our society. Litigation in such an environment makes the remedy of judicial adjudication illusory for those below the poverty line. The middle-income groups too cannot afford the cost of legal services, have no resilience for the arduous adjudication process, and remain at the mercy of non-state providers of justice, resorting to extra-legal methods, becoming victims of corruption, and sometimes even taking criminal recourse. The affluent, however, reap the benefit and get a greater return on their investment than the poor, who cannot afford litigation because of unavailable quality legal aid, notwithstanding the lofty ideals of the Legal Services Authority Act, 1987.

An inefficient judiciary, while a problem in itself and for all the players, also has more farreaching, long-lasting repercussions for the nation. A reputedly slow judiciary implies a lawlessness of sorts, or an environment in which there may be law, but the enforcement of that law is lax. It implies an environment rife with breach of contract and puts investors, firms, or any external organisation on guard, hampering investor confidence and thereby discouraging investments and creating an unfavourable economic environment in which economic growth is stifled. Policymaking and state administration are also hampered as a result of judicial delays due to delayed decision-making on issues that are the subject matter of litigation, which results in slower administrative processes.

The legitimate tax revenue of the government is also seriously affected by the delay in disposal of cases arising in the field of taxation. Unscrupulous tax payers are able to evade the payment of taxes and the government has become helpless. This leads to the introduction of draconian laws, which affect honest tax payers and places an unfair burden on them. Various government and quasi-government bodies also depend on the justice delivery system to enable the implementation of various schemes and measures for the development of society. For example, the power of eminent domain which the government exercises for acquiring private property for public purposes, is often interdicted by courts and takes many years to adjudicate disputes arising therefrom, leading to an enormous cost overrun and delays in the implementation of economic reforms. Thus, government bodies and government companies, which are meant to subserve public good, are handicapped. Lastly, the judiciary itself is under great pressure to perform when it is over-burdened and under-staffed. The casualty is justice itself when the courts have to find rough and ready methods to reduce their tax at the cost of providing justice. When the justice delivery system is plagued by so many problems, a rule of law society is a utopian dream.

The problem of delayed justice is even more alarming in the case of undertrial prisoners or those awaiting trial in prison without having been convicted of a crime. A recent Amnesty International study, Justice Under Trial: A Study of Pre-Trial Detention in India⁵, states that undertrial prisoners account for two out of every three persons in Indian prisons and are as many as 2.8 lakh people, currently being held in Indian prisons during their trial or are awaiting a trial, with many remaining in prison for a longer period than the maximum formal sentence for the crime. This is an inexcusable statistic that reflects a blatant denial of human rights and basic individual liberty. While minor delays in judicial processes do not deny victims the opportunity to obtain remedies, significant delays and the cumulative effect of several minor delays undermine the value of available remedies. Inordinate delays very often even result in evidentiary problems, frustrate victims, drain them of their faith in the judicial system, deter or frustrate claims by other victims, and on the whole undermine the legitimacy of the judiciary.

Recommendations to Reduce Judicial Delay

There is no doubt that judicial delay causes enormous stress in society and leads to a failure of the judicial system. Merely increasing the number of courts and judicial officers will not solve the problem, until the government (the majority litigant) implements a proper in-house review mechanism to safeguard the deciding authority from being subjected to unnecessary and vindictive probing and investigation by anti-corruption agencies, such as the Lokayukta, Vigilance Commission, and by the criminal investigation departments of the state governments and central government. A kind of extreme reluctance has set in among administrators in the government and public sector enterprises, and the sense of confidence to make decisions has been completely eroded. This is evident from the small number of matters involving public sector companies, which are resolved by mediation or conciliation in the country, even though the law has now attained majority age of 21 years, since 1996, when the Arbitration and Conciliation Act was introduced. The extreme reluctance among government administrators to make decisions by mediation or conciliation is a classic instance of systemic failure at the governmental level, which is a major bottleneck for the delivery of justice speedily.⁶

There are several steps that can be taken to reduce the ever-growing burden on our judiciary. Greater reliance on alternative dispute resolution (ADR) mechanisms and the encouragement of institutions and mechanisms providing ADR, making them more widespread and effective, will go a long way towards alleviating the burden on the judiciary. First and foremost, at the grassroots level, the state must establish and encourage the functioning of Gram Nyayalayas as per the Gram Nyayalayas Act, 2008. Based on my experience, one of the major drawbacks of judicial recourse in India is its inaccessibility to a large percentage of the population, mainly in rural India, who have been completely excluded from the ambit of justice delivery. The strict encouragement and implementation of the Gram Nyayalayas Act would alleviate this to a large extent. Despite being a decade-old enactment, which envisaged the setting up of over 5,000 Gram Nyayalayas, only a few hundred Gram Nyayalayas exist today.⁷ The Act envisaged a Gram Nyayalaya for every Panchayat or group of contiguous Panchayats that would function akin to a mobile court with a Nyayadhikari, who presides over them and enjoys the same power, salary, and benefits as a Judicial Magistrate First Class. If encouraged and promoted, they could function as a dynamic, first response unit/institution to settle small disputes immediately and prevent disputes from exacerbating into lengthy court battles.

Another ADR mechanism whose effectiveness has not been harnessed to its full capacity is that of the Lok Adalat that could easily be encouraged and expanded to become a gamechanger in ADR, allowing parties to overcome organisational and procedural barriers that would otherwise hinder their access to justice. Some small steps that would promote their functioning would include regular organisation of Lok Adalats without pomp and ceremony. Lok Adalats could even tie up with law schools and recruit law students or the staff of reputed law colleges to provide managerial support as a part of legal education thereby solving the problem of being understaffed.

Technology must also be utilised to speed up the judicial system and its processes, as far as it can. E-filing should be made mandatory and must include e-registration of cases and payment of court fees online. Auto-generating cause lists can also be tailored to an individual advocate’s name, court hall number, party name, date, etc. This would significantly reduce the burden on court registries, that would have more time to undertake other tasks as well as significantly reduce the paperwork involved in court processes.

In addition to the aforementioned measures, various simple reforms in court management could go a long way to speed up the judicial system. Reforms like fixing rosters of judges keeping in mind the expertise of the judge or even the judge’s passion for the subject, releasing the daily cause list well in advance to prevent unnecessary adjournments, and fixing timeframes for oral arguments will help reduce the burden. Officers of the court should be made responsible for ensuring that these measures are adhered to and penalties for violating the same should be enumerated and levied with diligence. Heavy costs must be levied on parties for infractions of the rules framed and the norm at the end of a litigation proceeding should be a policy of awarding costs against the losing party that include actual legal costs and actual advocates’ fee paid. This would act as a severe deterrent to individuals pursuing vexatious litigation and also discourage the dilatory tactics that parties and their counsel frequently indulge in. Furthermore, Section 35B of the Civil Procedure Code provides that a court can levy any amount it deems fit as cost on parties if they fail to take a step that is required or if they obtain an adjournment to perform it. If this provision were utilised more liberally, then, perhaps, the counsel would be more cautious before engaging evasive tactics to stall an ongoing hearing.

In 2010, addressing the problem that the predominant litigant in the country is the state and its agencies, the National Litigation Policy (NLP) was launched to steer the government towards becoming a ‘responsible and efficient litigant’. The guidelines framed by the NLP include not misleading court, not being a compulsive litigant, prioritising welfare litigation concerning social reform, the interests of weaker sections of society, and senior citizens, etc. While the NLP was definitely a step in the right direction, it has failed as an initiative due to being replete with ambiguity and containing no scope for implementation. The present policy fails to provide a yardstick for determining responsibility and efficiency, and mandates ‘suitable action’ against officials violating the policy, whereas it fails to specify the nature of the suitable action and prescribes no method to conduct disciplinary proceedings against violators, etc. The present NLP needs to be upgraded to contain clear objectives— it must stipulate the roles of functionaries and outline mandatory minimum standards to be satisfied to conduct litigation, it must put in place accountability mechanisms, and, most importantly, it must enumerate and implement the consequences of violating the policy.

The dismal picture painted earlier has a silver lining in the form of erudite judges of independent minds with zeal and commitment, working tirelessly and valiantly. In the famous poem ‘Casabianca’, the opening words ring in our minds—‘The boy stood on the burning deck.’ Our great judges remind us all of that boy who is doing his best to save a sinking ship from fire, bravely and fearlessly, doing his bit to avoid or delay the sinking of the ship. We, therefore, need to salute the judges who are bearing the brunt of a collapsing justice delivery system.

While the process of reforming the judiciary and reducing incidences of judicial delay require the investment of state infrastructure, time, and funds, they also require the co-operation of legal practitioners and parties. The introduction of the aforementioned reforms would go a long way in making the state and its organs stronger, more efficient, and more capable of functioning in unison. More importantly, it would restore reliance on justice and bring the judiciary into its ‘coming of age’.

Notes

1. The power vested in the High Court under Articles 226 and 227 of the Indian Constitution.
2. Department of Justice, Government of India. 2017. ‘Action Plan to Reduce Government Litigation’, available online at http://doj.gov.in/page/action-plan-reducegovernment- litigation (accessed on 22 February 2019).
3. Schedules 1 and 2, Karnataka Court Fees and Suits Valuation Act, 1958.
4. Schedules 1 and 2, Karnataka Court Fees and Suits Valuation Act, 1958.
5. Amnesty International India. 2017. Justice Under Trial: A Study of Pre-Trial Detention in India. Bengaluru: Amnesty International India, available online at https://amnesty.org. in/justice-trial-study-pre-trial-detention-india/ (accessed on 8 May 2019).
6. The Arbitration and Conciliation Act was introduced in the year 1996.
7. As of March 2015, 159 Gram Nyayalayas were said to be functional out of the 194 notified Gram Nyayalayas. Ashwini Obulesh. 2016. ‘Institutionalising Justice: Gram Nyayalayas and Consumer Courts’, in Harish Narasappa and Shruti Vidyasagar (eds), State of the Indian Judiciary: A Report by DAKSH, pp. 197–206. Bengaluru: DAKSH and EBC, available online at http://dakshindia.org/state-of-theindian- judiciary/34_chapter_19.html#_idTextAnchor485 (accessed on 26 February 2019).