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The Intolerable Wait

Currently, courts across India are facing an acute problem of high pendency of matters. The pendency of matters for years together not only weakens the outcome of the matter but also causes a great prejudice to parties involved in the same.

By Luckyraj Indorkar        Last Updated: May 6, 2016  | 12:43 IST

Luckyraj Indorkar
"Justice delayed is justice denied" is one of the accepted principles in all judicial systems. Seeking a fair trial and timely justice is not only one of the basic rights of a person in our democracy, but is also a guaranteed fundamental right enshrined under our Constitution; the same therefore has to be given the highest regard.

Currently, courts across India are facing an acute problem of high pendency of matters. The pendency of matters for years together not only weakens the outcome of the matter but also causes a great prejudice to parties involved in the same. Of the several reasons of high pendency, one of the reasons is high vacancies of judges in courts as against the sanctioned strength. The Law Commission of India on various occasions recommended improving the strength. However, the judicial strength till date remains one of the most neglected areas. Consequently, the wait for litigants becomes intolerable and frustrating.

Coupled with this, even the judiciary itself is disheartened due to the high pendency of matters across the country for want of judicial strength. This was evident from the recent speech of the Chief Justice of India, when he became emotional while addressing this issue. The CJI reiterated the law commission's recommendation of 1987, that we needed 50 judges for per million people, which is only 15 currently even after 30 years. His concern of high pendency of over 3 crore matters across all levels has already alarmed the State machinery to take up concrete steps in filling up the vacancies expeditiously.

One of the recommendations of the law commission was to increase the age of retirement of judges in subordinate courts to 62 years. As posts become vacant after retirement, the process to select and train new judges to replace the retiring ones takes a long time and in the meantime, the backlog piles up. Though the members from Bar are the best candidates for appointment as judge, I feel very often the members from Bar (not all, but some of them) are hesitant to accept the judgeship owning to low remuneration. Our judges in higher courts live in 'Hon'ble Poverty', and the State should consider increasing the remuneration of judges to encourage members from Bar to accept judgeship.

However, this is just the tip of the iceberg. In India, a lot time is spent by the litigants in lower courts. Thereafter, the aggrieved party prefers an appeal in higher courts. The issue of pendency the law commission suggested is not only in the lower courts but also in higher courts. If the number of judges in the trial courts increases significantly, the number of cases being disposed of by the trial courts will also rise sharply, thereby increasing the appeals in High Courts. If a corresponding increase is not made in the judge strength at the High Court level, the system as a whole is likely to remain backlogged. Most adversities are caused because of delay in justice delivery in criminal trials and petty offences. Undertrials are languishing in jails for years, which also cause unnecessary cost to the State. Waiting for a fair trial, languishing in jail for years and not found guilty after that is one of the major losses of the justice delivery system and it only substantiates the principle 'justice delayed is justice denied'. Moreover, the High Courts are also burdened with the matters due for final hearing. The High Courts are mostly occupied with hearings of writs and interim applications in new matters and the judges are therefore unable to devote their time to take up the final hearing matters.

With the introduction of Arbitration & Conciliation, Act 1996 ("Arbitration Act"), parties who can afford to have their disputes resolved by Alternate Dispute Resolution ("ADR") subject themselves to arbitration and other methods of ADR that are fast and also result oriented. However, having said that, the concept of "ADR" to my mind is only an 'urban concept' and the same is not yet very prevalent in all parts of India or business communities. However, ADR has by far helped reduce the filing in courts. Further, the new amendments in the Arbitration Act have further strengthened ADR. It mandates an arbitrator to make an award within a period of 12 months from the date of entering upon the reference. Such time-bound limits for disposal of matters are not only a boost to litigants to opt for ADR but also one of the passages to reduce the filings in courts. Apart from this, the law ministry has now set up ADR centres and Legal Aid Service Cells at all levels, who guide litigants in Lok Adalats either to settle their pending disputes in courts or not to file any new case. However, ADR doesn't and cannot answer the pendency of criminal trials.

Be that as it may be, to tackle this delay in justice delivery system and high pendency, the need of hour is to set up and have additional courts, fill up the vacancies expeditiously at all levels and appoint additional judges. Access to justice is a collaborative effort of the State machinery and the judiciary. Such measures though practically sound unrealistic but results can only be achieved with active judicial activism and State's endeavours to reform the judicial system at all levels in consultation with higher judiciary and all other concerns including the Bars.

The author is Senior Associate, JSA (Views expressed are personal)

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