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4

Culture of Adjournments and Inaccessibility of Courts: The Litigant Experience

Amulya Ashwathappa

Introduction

There is a mammoth number of cases pending before courts, leading to backlog and undue delay in disposing of cases, which can be attributed to the inadequate number of judges, lack of streamlining of judicial procedures, general lack of awareness amongst litigants, and infrastructural and administrative incompetence. For citizens to truly realise their rights and gain access to justice, it is not merely the final judgment in a case that matters—what is imperative is that the path leading up to that judgment be free of obstacles. Litigants are key stakeholders in the judicial process and if we wish to have an efficient judiciary, it is important to understand the hurdles they cross when they approach the judicial system.

In this chapter, using Arun Shourie’s anecdotal evidence of the Faridabad courts in his book Anita Gets Bail1 as a starting point, I analyse the workload and management of cause lists of magistrates in the Faridabad courts. I also report the findings of my survey to understand the physical infrastructure of Faridabad courts and problems faced by litigants during their interactions with the judiciary. Finally, I examine the culture of seeking and granting adjournments that exists across Indian courts, which plagues the judiciary.

About the Book

In his book Anita Gets Bail, Arun Shourie talks about his experience as a bystander to the criminal proceedings initiated against his wife, in the court of the Chief Judicial Magistrate, Faridabad. The book is centred around how his wife Anita Shourie, diagnosed with Parkinson’s disease, was listed as a proclaimed absconder for dodging summons multiple times, when in reality, the summons had never been served on her. Mr Shourie narrates Anita Shourie’s experiences with the court in general and sheds light on certain issues that the Indian judiciary is grappling with. He focuses on how the judiciary has dealt with political power play, possible corruption within the judiciary, threat to judicial independence, and failure to implement policies on government advertisements, police reform, improvement of judicial infrastructure, etc.

In the first two chapters, Mr Shourie talks about Jayalalithaa’s case2 that was filed in 1996 against Ms Jayalalithaa, former chief minister of the state of Tamil Nadu before a special court in Tamil Nadu for accruing assets disproportionate to her income. The judgment in the case was delivered in 2017 by the Supreme Court, shortly after her demise in December 2016. He discusses the tactics lawyers were able to employ, to delay the court proceedings by acting as puppets of the powerful and subverting the judicial process. He notes that filing of frivolous and vexatious motions is a problem that has reached unmanageable proportions, as was evident in Jayalalithaa’s case, where an army of lawyers contested every order at every step and with this they were able to undermine the proceedings before the special court constituted to try her case in Karnataka after the case was transferred from Tamil Nadu.

Mr Shourie speaks about the problems of lack of adequate number of judges, overcrowding of prisons, and sheer disregard of the state governments to actually fixing issues at hand and instead, being quick to avoid the situation by citing lack of funds. He also addresses the government’s failure in adhering to the orders issued by courts. He quotes instances where the courts have given directions for police reform and better court infrastructure facilities, but the government failed to follow the orders.3 In another instance, a court had directed that a movie should not be banned merely because a ‘law and order problem’ may arise, but the government had flouted this order and had gone ahead with the ban.4

Case of State v. Anita Shourie before the Chief Judicial Magistrate

Mr Shourie describes the facts of the case against his wife as follows. An arrest warrant was issued on 2 August 2013 in the name of Anita Shourie, citing that she had evaded summons of the Judicial Magistrate five times. Anita Shourie was accused of building a farmhouse illegally in a retreat in Aravali in 2009 when in fact she, along with Arun Shourie, had sold the property in 2008. The Haryana State Pollution Control Board (Haryana SPCB) had sent multiple circulars to Anita Shourie for violating a notification in which the residents of Aravali could not carry out certain activities without the express permission of the Haryana SPCB, in this case, building a farmhouse.5 Mr Shourie and his wife had promptly replied to every circular they received, reiterating that they did not own the land anymore and no farmhouse had been constructed on the said property, but this was of no avail as the Haryana SPCB filed a case against Anita Shourie in 2009 in the court of the Chief Judicial Magistrate, Faridabad. The Shouries were completely unaware that a tremendous case was forming against them until 2013 when Anita Shourie received an arrest warrant for dodging summons. The case dragged on for six years until she was finally acquitted in March 2015.

During the course of this case, Mr Shourie states that he was completely against seeking adjournments. But adjournments were frequently granted. If his case was listed for a particular day, it would be heard a day or a week before, without his knowledge. The case was handled by multiple judges because judges hearing the case would either get transferred or promoted. A judge refused to exempt Anita Shourie from physically appearing before the Court, despite her having Parkinson’s disease, because the judge was getting transferred.6 At every stage, the proceedings were delayed either because adjournments were regularly sought or evidence/witnesses were perpetually absent, all of which prolonged the proceedings.

Judicial magistrate Court, faridabad

To understand what could be contributing to the delay in proceedings, in this section of the chapter, I look at the number of pending cases, listing practices,and judge strength of the Judicial Magistrates in Faridabad, since Anita Shourie’s case was filed before the Chief Judicial Magistrate in Faridabad.

Case listing Practices of Judicial magistrates in faridabad

According to the National Judicial Data Grid (NJDG), there are a total of 35,973 cases pending as of February 2019 before the Judicial Magistrates in Faridabad.

figure 1.4.1. Number of Cases Pending before the Judicial Magistrates in Faridabad7

As seen in Figure 1.4.1, 81 per cent of these cases have been pending for less than two years, while 19 per cent have been pending for more than two years. The number of pending cases and the duration for which they have been pending affect how judges list the cases for hearings.

To understand the workload of the Faridabad courts and how judges list cases for hearing, I studied the cause list of each Judicial Magistrate in Faridabad for a period of one week. The data for these cause lists was gathered from the NJDG and e-courts website.

figure 1.4.2. Average Number of Cases Listed per Day before the Judicial Magistrates in Faridabad

On any given day, a Judicial Magistrate in Faridabad would have an average of 64 cases listed for hearing. The judges generally fix the date for hearings and the cause list is prepared accordingly by the court clerk. The number of cases that are listed per day ranges from 5 to 130 on a given date for a Judicial Magistrate in Faridabad. In order to understand how the number of cases pending before a judge could play a role in the listing of cases, let us look at Figure 1.4.3.

figure 1.4.3. Number of Pending Cases and Average Number of Cases Listed per Day before Judicial Magistrates in Faridabad

It is evident from Figure 1.4.3 that judges do not follow any fixed method while listing cases. Judges with a similar workload follow different listing practices. For example, Judges 2 and 3 have a similar workload, but Judge 2 listed 146 cases on average, whereas Judge 3 listed only 29 cases. In this regard, it is also interesting to note whether the listing of cases varies based on the day of the week.

figure 1.4.4. Average Number of Cases Listed per Day before Judicial Magistrates in Faridabad

The details given earlier show that courts are unable to manage their cause list in a consistent manner. For instance, on the first day of a week, judges tend to list fewer cases with an average of 15 listed cases, and by the end of the week the average shoots up to 188 cases listed per day. This indicates that the judges fail to manage their workload which has resulted in listing an unrealistic number of cases for hearing. However, it is important to note that this pattern is not entirely conclusive, as it is based on data I collected for a week.

Generally speaking, if a judge typically has 5 hours and 30 mins in a day to hear cases, and an average of 80 cases are listed per day, she will approximately have three-and-a-half minutes to hear each case.8 However, the time spent on each case is determined by which stage the case is at. Often, a judge is simply unable to hear all cases listed for the day due to paucity of time and therefore adjourns most of the cases. According to a time and motion study conducted by DAKSH in 2016, it was noted that 33 per cent of judicial time spent in criminal courts was spent on adjournments, and if 50 cases were listed per day only six of them were heard by the judge.9

Judge Strength

According to the NJDG, the sanctioned judge strength for Judicial Magistrates in Faridabad is 20 judges as of February 2019, out of which 18 courts are functioning, and two are vacant. If one were to look at data across India, there is an overwhelming number of subordinate courts that have vacant benches, that is, no judges have been appointed. As of 2017, there were a total of 5,000 vacant courts out of a sanctionedstrength of 21,572.10 Vacancies in the courts is a contributing factor to delay in disposing cases. While merely filling vacancies may not necessarily solve the problem of judical pendency and delay, the staggering number of vacant benches is adding to the backlog. Having an adequate number of judges would be reflective of having an efficient judical system. India has one of the highest vacancies in the subordinate courts when compared to countries, such as the United States, China, and Australia.11 According to the National Action plan, the goal is to have 50 judges per million in India.12 Figure 1.4.5 shows the vacancies prevalent in the subordinate courts, with Bihar having the highest vacancy at 40 per cent.

figure 1.4.5.Top Fifteen States with the Highest Vacancy in the Subordinate Courts—Average for the Years 2014– 2015, 2015–2016, and 2016–2017

Having an adequate number of judges would also ensure that the workload of judges is distributed evenly without overburdening any judge. Currently, most of the subordinate courts deal with both civil as well as criminal cases that increases their burden. Figure 1.4.5 represents the top 15 states that have the highest number of vacancies in the subordinate courts, which need to be filled on a priority basis.

Acc essibility of Courts and Infrastructure

Presence of adequate physical infrastructure is another aspect in enabling citizens’ access to timely justice. Infrastructure forms one of the first interactions of the citizens with courts, and the ease of navigation within the courts depends on the user friendliness of the structure, availability of facilities, and their inclusiveness. In his book, Mr Shourie has spoken about the difficulty of getting Anita Shourie to court with her constant trembling and muscle rigidity. To understand the current infrastructural state of the Faridabad courts, I inspected the court buildings to see if the physical infrastructure of the court was adequate and enabled the litigants to access justice or hindered them. I also surveyed 15 litigants at random to get their perspective on judicial delay.

Faridabad Court Infrastructure

The Faridabad court complex has judges belonging to three cadres of the subordinate judiciary—Chief Judicial Magistrate, Senior Civil Judge, and District and Sessions Court. There are two court buildings in which these establishments are housed.

According to the National Court Management System Policy and Action Plan, 2012,13 the infrastructure should include the physical infrastructure of the court and the availability of other facilities such as:

  1. Court building: Court rooms, judges’ chambers, litigants’ waiting area, administrative offices and support facilities.
  2. Space for lawyers: Bar rooms for ladies and gents, consultation rooms and cubicles, library and support facilities.
  3. Facility centre consisting of other common facilities for the functioning of the court complex not directly related to courts.
  4. Utility block for housing the utility services like AC plant, electrical sub-station, DG sets, STP, repair workshop, storage, etc.
  5. Judicial lock-ups.
  6. Adequate parking facilities for judges, lawyers, litigants, and other visitors.14

Out of the requirements listed earlier, I checked the Faridabad court to see if basic amenities, such as drinking water, clean toilets, ramps for wheel chairs, lifts, and parking spaces, are available. The new court building was inaugurated in 2017 and had better facilities in comparison to the old building. The old building has lifts but with restricted access for judges and lawyers only, while the new building has two functional lifts. There was ample parking space outside the court complex premises. Table 1.4.1 draws a basic comparison between the two buildings.

Table 1.4.1.Infrastructure in the Faridabad Court Complex

According to the Supreme Court action plan15, there should be a designated waiting room for litigants, but there were only benches outside some courtrooms in both the buildings. In the old building, the courtrooms looked very congested, with barely six or seven chairs for lawyers to sit and two tables. There was no clear demarcation of the lawyers’ area and a litigant who was surveyed noted that people often crowd up around the judge and create chaos without having an organised way of calling cases. Many litigants also felt that sign boards could have been placed better to help them navigate through the court.

Litigant Experience

A total of 15 litigants were surveyed on 6 April 2019 to understand their experience with the judiciary and to what extent they were facing issues. I approached litigants present in the Faridabad court complex for the survey. The litigants were randomly chosen for the survey from persons who were present on the day of my visit.

Out of the litigants surveyed, five belonged to the age bracket of 20–29 years, two in 30–39 years, four in 40–49 years, and four in 50–60 years. Out of these, 10 were male and five were female. Three litigants had completed high school, four had reached the pre-university level, two were graduates, one was a post graduate, and five litigants had not attended any school.

Some of the questions that were asked were: Is any party to the case disabled? How far have they travelled to get to the court? For how long have their cases been pending? Which stage has the case reached? What are the reasons for delay? According to them, could anything be done to speed up the litigation process? Should other non-judicial bodies be approached if they are able to settle disputes quicker? Are they aware of free legal aid services? What are the costs incurred by litigants in the course of litigation?

All litigants, except one, said that neither of the parties were disabled. The litigant who answered yes to the question regarding disability stated that he had lost his hand while working as a press operator. He said that despite his loss of a limb the judge was not sympathetic towards him, as his livelihood depended on the compensation he would get, he did not seek any exemption from appearing before the court.

On an average, litigants travelled nine kilometres to get to the court, and one of the litigants had travelled all the way from the United States, which was not considered while calculating the average distance travelled. The Supreme Court has emphasised the importance of having courts easily accessible and said that the court ‘must be conveniently accessible in terms of distance’ when the court recognised access to justice as a fundamental right guaranteed under the Constitution.16

When litigants were asked about their perspective on what is causing delay, many did not have any answers; but when leading questions were asked, all of them agreed that there are not enough judges, and the dockets of judges who are working are overburdened. In 2016, DAKSH had conducted a survey of litigants, in which it was found that 50.4 per cent of the people surveyed thought that there were not enough judges, and 64.5 per cent thought that there were too many cases.17 Some litigants with whom I spoke hinted that muscle and money power play a huge role in influencing the outcome of cases. Mr Shourie also brings up this issue, noting the issue of corruption within the judiciary and speaks of how there was no independent committee set up to probe matters when a prima facie case is made out against judges. Ten out of 15 litigants were not aware of free legal aid services, and seven of them were disappointed that their lawyers failed to brief and update them about the progress of the case.

Regarding the point on non-judicial bodies, seven litigants said that they prefer non-judicial bodies such as panchayats, police stations, and religious organisations because these bodies are easy to approach, they settle disputes quicker, and are less expensive. The rest believed that non-judicial bodies should not be approached to settle disputes and that it is against the rule of law. According to DAKSH’s Access to Justice Survey 2017, of the people who chose non-judicial means to resolve their dispute, 26 per cent of the people surveyed said that cost of litigation is too high and 21 per cent of them said the system is too complex.18 A video documentary19 by DAKSH has also found that the interviewees said that the cost of accessing the judiciary is expensive and people said that they don’t know how to file a case. Citizens are looking for a cost and time effective method of resolving disputes.

Culture of Adjournments

This section examines the existing culture of seeking adjournments in Indian courts and the reasons behind it. Under the Code of Criminal Procedure, 1973 (CrPC),20 a magistrate can postpone or adjourn proceedings from time to time for any reason she thinks fit. The reality in criminal courts, however, is that granting adjournments is not dependent on necessity, but has become a norm. The number of adjournments that can be granted is not prescribed for criminal cases, however, as per the Code of Civil Procedure, 1908 (CPC), only three adjournments can be sought in a civil case and can be granted only for circumstances that are beyond the control of the parties. That the advocate is engaged in another court is not a good enough reason to seek an adjournment, and the court can proceed to make an order without the presence of the advocate.

Several reports of the Law Commission of India21 have noted that granting and seeking adjournments is one of the major factors aggravating delay and pendency of cases. According to a study conducted by DAKSH and Vidhi Centre for Legal Policy,22 61 per cent of all hearings in a case resulted in adjournments, and on an average 32 adjournments are granted per case.

figure 1.4.6.Reasons for Adjournments

The study also noted the main causes for adjournments in subordinate courts.23 As seen in Figure 1.4.6, 44 per cent of adjournments were due to the absence of the party or advocate, 20 per cent were due to the absence of witnesses, 16 per cent were due to the judge not being present, and 14 per cent of the adjournments were due to a party or advocate seeking extra time. In terms of the person responsible for the adjournments, it was found that 58 per cent of the adjournments were sought by advocates and only 20 per cent of the adjournments were due to the absence of the judge. Advocates play an active role in enabling the seeking of adjournment culture to flourish. In the 230th Law Commission Report, Justice Ganguly said that lawyers and judges must be punctual, and the judge should utilise his working hours to the full extent, and lawyers should not ask for adjournments unless it is absolutely necessary.

In the Report, Justice Ganguly also remarks that the ethics of the lawyers are questionable.24 The Bar Council of India Rules25 state the duties of lawyers towards the court and his clients, and one of them is to protect the interest of the clients and follow fair practices. Though the rules do not explicitly hold the advocate liable for seeking unnecessary adjournments, the Bar Council should implement these rules and advocates should be held accountable for seeking unnecessary adjournments.

Suggestions

Improving court efficiency is an indispensable part of the justice system. Improving court efficiency involves developing mechanisms to cater to the needs of the litigants by streamlining judicial processes, ensuring the presence of adequate judges, legal awareness, and access to free legal aid services. To this end, it is recommended that:

  1. Case Flow Management Rules that have been notified in the State of Haryana should be strictly adhered. The Case Flow Management Rules prescribe two cause lists to be prepared based on the current stage of the case—procedural or substantive. The judge will hear cases that are at the substantive stages while the registrars will hear the cases at the procedural level.
  2. Order 17 of CPC dealing with adjournments should be amended to a realistic number of adjournments per suit and the judges should impose high costs as deterrence.
  3. Under the CrPC, there is no provision that deals with the number of adjournments that can be sought in a criminal case, a provision should be enacted which sets a realistic number of adjournments per case.
  4. Listing of cases and adjournments are interconnected, if more cases are listed then the judge tends to allow more adjournments.Hence, the cause list should be well managed, and cases should be listed based on the cases pending to bring in certainty in each hearing.
  5. Vacancy of benches in subordinate courts should be filled in quickly and the Supreme Court should at the earliest assess whether a centralised selection mechanism should be implemented.

Improving accessibility of courts is a facet of improving court efficiency. Infrastructural changes and facilities should be made to ensure that the litigant’s right to access justice is truly realised. In order to improve accessibility, it is recommended that:

  1. The Supreme Court’s direction to the High Courts for improving court infrastructure should be followed through.
  2. The central and state governments should implement the directions of the Supreme Court in making all public buildings completely accessible by 2019 as envisaged under the Disability Act, 2016.26
  3. There must be proper planning of budgets to ensure that funds are appropriately utilised as central and state governments mainly utilise their budget for operational costs of the judiciary leaving little or no funds for infrastructural development.27

Conclusion

As Shourie’s book notes and as I found in my brief survey, litigants face a variety of issues when they approach the judiciary. As a citizen, the litigant’s access to justice can be understood in two ways from this chapter—first, from the perspective of procedural delays, and second, the infrastructural challenges they face in the court. From a procedural aspect, the culture of adjournments has caused substantial delay in having their cases decided speedily. The lack of adequate judge strength in the subordinate courts has adversely affected citizens’ ability to access timely justice as they are the first point of contact if a dispute arises. The lack of adequate number of judges also leads to overburdened judges and poor listing practices. Infrastructural facilities too affect the basic functioning of the court which in return can hamper the litigants’ right to access justice. The Faridabad court lacks basic infrastructural facilities as recommended by the Supreme Court action plan. Citizens are the key stakeholders in the judiciary. For the judicial system to be efficient it has to engage the citizens and implement polices with a citizencentric approach.

Notes:

  1. Arun Shourie. 2018. Anita Gets Bail. Noida: HarperCollins.
  2. State of Tamil Nadu v. J. Jayalalithaa, Spl. C.C 208 of 2004; J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401.
  3. Shourie, Anita Gets Bail, pp. 91–103.
  4. Shourie, Anita Gets Bail, pp. 91–103.
  5. Shourie, Anita Gets Bail, pp. 2–22.
  6. Shourie, Anita Gets Bail, pp. 2–22.
  7. National Judicial Data Grid. 2019, available online at http://njdg.ecourts.gov.in/njdgnew/ (accessed on 30 March 2019).
  8. Harish Narasappa. 2017. ‘Maximising Judicial Time: Measures to Combat Delay and Pendency in Subordinate Courts’, in Shruti Vidyasagar, Harish Narasappa, and Ramya Tirumalai (eds), Approaches to Justice in India: A Report by DAKSH, p. 120. India: EBC.
  9. DAKSH. 2016. ‘Time and Motion of four District and Sessions courts in Bangalore, Karnataka’, DAKSH, September, 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 22 May 2019).
  10. Centre for Research and Planning. 2016. ‘Subordinate Courts of India: A Report on Access to Justice’. New Delhi: Supreme Court of India, available online at https://www.sci.gov.in/pdf/AccesstoJustice/Subordinate%20Court%20of%20India.pdf (accessed on 22 May 2019).
  11. Subordinate Courts of India: A Report on Access to Justice, Supreme Court of India.
  12. Subordinate Courts of India: A Report on Access to Justice, Supreme Court of India.
  13. National Court Management Systems Committee. 2012. ‘NCMS Policy and Action Plan’, Supreme Court of India; Court Development Planning System: Infrastructure and Budgeting. 2012. Supreme Court of India.
  14. National Court Management Systems Committee Policy and Action Plan, Supreme Court of India; Court Development Planning System: Infrastructure and Budgeting, Supreme Court of India.
  15. National Court Management Systems Committee Policy and Action Plan, Supreme Court of India.
  16. Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509.
  17. DAKSH. 2016. Access to Justice Survey, available online at http://dakshindia.org/access-to-justice-survey/ (accessed on 21 May 2019).
  18. DAKSH. 2017. Access to Justice Survey, available online at http://dakshindia.org/access-to-justice-2017/index.html (accessed on 21 May 2019).
  19. DAKSH, JANA Documentary series, available online at http://dakshindia.org/jana/ (accessed on 21 May 2019).
  20. Section 209, CrPC.
  21. Law Commission of India. 2009. Reforms in the Judiciary: Some Suggestions. Report No. 230. New Delhi: Government of India, p. 593, available online at http://lawcommissionofindia.nic.in/reports/report230.pdf (accessed on 20 May 2019).
  22. DAKSH and Vidhi Centre for Legal Policy. 2017. ‘Creating Order from Chaos: A Study on Caseflow Management in Courts’. DAKSH Judicial Reform and Education. Unpublished report.
  23. DAKSH and Vidhi Centre for Legal Policy, ‘Creating Order from Chaos: A Study on Caseflow Management in Courts’.
  24. Law Commission of India, Reforms in the Judiciary.
  25. Chapter II, Part VI of the Bar Council of India Rules.
  26. Disabled Rights Group v. Union of India, (2018) 2 SCC 413.
  27. DAKSH. 2018. ‘Memorandum to the Fifteenth Finance Commission on Budgeting for the Judiciary in India’.