In 1963, members of a family – which shall remain unnamed – fighting over property, filed a suit in a trial court in Bombay (as it was then called). The court announced its verdict 25 years later, in 1988. The losing party then moved the Bombay High Court in appeal. As the case was being heard, the court discovered that a number of the parties to the feud had died in the intervening years. If any party dies, the Code of Civil Procedure requires a legal representative to be made a party within 90 days. Since the appellants had failed to do so, the high court dismissed the appeal in 2015. The appeal to the Supreme Court is still pending. Now, if the Supreme Court feels that this procedural oversight can be condoned, the case could well go back to the high court for fresh hearings, 55 years after it was originally filed.
Or take the example of several cases related to bounced cheques, filed in the early 1990s, that finally found resolution in the Supreme Court only last year. Even if the defaulter pays up, as they mostly have to, and is charged 200 per cent penalty to boot, the amount is still paltry, given the inflation of the past three decades. And these are cases filed under Section 138 of the Negotiable Instruments Act, which was supposed to be a fast-track mechanism for resolution of cheque-bounce cases. It isn’t that justice is not available as much as that with the delays, it becomes almost meaningless.
Scale of the Problem
Consider the numbers. There are 26.5 million cases currently pending in the country in early March 2018, according to the National Judicial Data Grid. Over 53 per cent of them were filed over two years ago. Of this, 16 per cent were filed between five and 10 years ago, and 8.5 per cent – or 2.25 million cases – more than 10 years ago. The data journalism website Indiaspend.com has estimated that it will take courts in Gujarat 287 years to clear their backlog of cases. Is Gujarat the worst off in this regard? No – it is only the state with the largest such finite estimate. There are six states – including Maharashtra, West Bengal and Bihar – where the number of cases filed in December 2015 was higher than the number disposed off that month, which means the backlog is increasing, making complete clearance impossible to extrapolate.
The Indiaspend report also noted that a judge in Karnataka disposed off, on average, 113 cases a month, while those in Gujarat and Bihar managed barely 19 a month. But “disposed off” may not be the correct term. Every judgment is parsed by litigants and their lawyers (who arguably have more time). Any flaw in logic, any fact that is not fully and correctly appreciated, and legal question that is incorrectly applied, becomes a ground in appeal, congesting the system further. For a litigant, the recording of a trial court judge, especially on a question of fact, can hobble him even in appeals, as appellate judges usually accept the findings of the trial courts on facts (unless there is documentary proof to show that they are so perverse).
Former Chief Justice of India T.S. Thakur famously broke down while speaking in public, in 2016, about understaffed courts and the resultant accumulation of cases. A whole year after his retirement, the situation seems to have barely improved. Data from the beginning of 2018 put the deficit of judges across the subordinate courts across India at around 6,000 – about 26.5 per cent; and at the high courts at 395, out of the allocated strength of 1,079 (36 per cent vacant). The high courts together have around 3.5 million cases pending – 22 per cent of them for more than five years, and another 19 per cent for over 10 years. The Supreme Court was estimated to have around 55,000 cases pending, with 30 per cent of them over five years. Indiaspend estimates that just filling up these vacancies would bring down pendency by an impressive 83 per cent.
But no concerted effort is being made to do so. The latest Union Budget provides a mere Rs 622 crore for judicial infrastructure, while the total allocation to the judiciary, including setting up of e-courts and other Centrally-sponsored schemes, is less than Rs 1,500 crore. The Supreme Court gets another Rs 250 crore exclusively to itself. States also spend on financing courts – but only 0.1-0.2 per cent of their Net State Domestic Product, according to analysis of data from 2013 and 2014 by Daksh.
The vacancies in the higher judiciary are generally attributed to lack of political will. It is more nuanced at the subordinate courts. It is widely acknowledged that there is a shortage of quality candidates willing to take up judgeship – not just due to lack of financial incentive, but also lack of transparent path of promotion to the high courts.
Who suffers for these delays? The cost is disproportionately borne by the poorest sections. The Daksh survey found that a third of all litigants in the country earns under Rs 1 lakh a year, while another third earns between Rs 1 lakh and Rs 3 lakh. On average, these litigants told Daksh, it cost them over Rs 1,000 per day to attend court proceedings, apart from earnings foregone. In aggregate, this added up to a whopping Rs 30,000 crore spent by the country only due to prolonged litigation, a large part of it which could have been avoided if resolution was sooner.
The Economic Survey for 2018 devotes an entire chapter to the absence of timely justice in India and its economic impact, actually quoting the first part of the famous line from the 1993 Sunny Deol-starrer Damini, “Tareekh par tareekh, tareekh par tareekh milti gayi my lord, par insaaf nahin mila” (We got one date after another, my lord, one date after another, but we never got justice). Beyond just the courts, it also looks at six of the economic tribunals dealing with “high stake commercial matters” and finds that together they have 180,000 cases pending. Over 150,000 of them are tax disputes, and on average, have been pending for six years.
The longer a tax case remains pending, the longer the assessee’s money is stuck, while he must continue to meet fresh tax demands. The survey points out that there are 50,000 commercial cases stuck in just five high courts, with average pendency just over four years, of which 30,000 are tax cases and nearly another 10,000 are before arbitrators. Arbitration was devised as a means to reduce judicial delays, but in practice, cases take two years on average to be decided even in such instances.
Even in the Tribunals, more than half the seats are vacant. The vitally important National Green Tribunal, for example – in these times of heightened environmental awareness – has only five functioning members against the envisaged 20, which in practice means that three of its five benches – East, South and Central – are virtually not working at all, which in turn means that both green activists opposing polluting industries in these areas as well as companies fighting stay orders based on environmental concerns, have nowhere to go.
Overall, it estimates that Rs 52,000 crore worth of infrastructure projects are stuck due to stay orders by some court or tribunal. Its analysis of intellectual property-related cases in the Delhi High Court – which again impact business – shows they have an average pendency of 4.3 years and that 60 per cent of them are stymied by stay orders. In final disposal cases, where detailed hearings take place, the average time taken is eight years.
Matters are worsened by the courts’ generosity, both in granting adjournments and admitting fresh cases. Most times, if a lawyer requests being excused from arguing on a particular day, the court readily allows it. But because of the backlog, the next date set for hearing is often months later. In Delhi High Court, for instance, cases that were adjourned this February have been next listed for August. This is even as several judges now sit beyond their regular working hours to finish their cases for the day.
A significant number of the cases could be frivolous, but such litigation is a given when courts do not impose costs on those bringing them, with unscrupulous litigants using delays as a tool to stonewall discharge of their obligations. In a case relating to irregular appointment, for instance, the person appointed, after being adjudged ineligible, was still able, using three appeals, to hold on to the position for 10 years. Two years after he had appealed to the Supreme Court, it allowed him, on the date of final hearing to withdraw it, without imposing any penalty whatsoever. It could well be asked why such a case was allowed to reach the Supreme Court at all.
Often the courts contribute to the mass by permitting cases that are not its remit. Public interest litigation, which was originally envisaged as a way to secure Fundamental Rights for the anonymous poor (the prime responsibility of courts, arguably) is now widely panned for having become a free-for-all with the courts’ indulgence. Similarly, one could legitimately ask whether the Supreme Court must be spending its valuable time mediating marital disputes (as noble as the endeavour is).
Unlike in many developed nations, Indian courts don’t restrict length of arguments. So, a verbose advocate can drag what should take two hours into a matter of several days – and bill the client for each day. Tomes are filed in the name of written pleadings; mostly serving no purpose but to impress clients. The judge is then forced to read it, slowing him/her down.
Finally, governments are often guilty of precipitating litigation. The tax department routinely comes under fire for filing appeals unwarranted. And then there is the refusal of government departments to do the sensible thing. Take the case of companies whose coal block allotments were cancelled by the Supreme Court in its famous judgment of September 2014, because of irregularities it found in their allotment. The companies are still fighting court battles to prevent the government from encashing the bank guarantees furnished by them for the reason that coal production targets were not met, even though, in many cases, this was for lack of environment clearance and the licence to begin production from the government!
The tragedy is that the problem of judicial pendency – unlike many other ills the country faces – can be resolved: filling up vacancies by the government, courts being stricter with frivolous litigants and insouciant lawyers, and efficient case-management would take us a long way there.
The writer is a Delhi-based advocate and Chartered Accountant. The examples cited in this piece are all real instances, but by no means, isolated exceptions