What Is Stopping Our Justice System From Tackling the Cases Pending Before Courts?

This is the second article in a two-part series on issues plaguing India’s judicial system. You can read the first part, on judicial vacancies,  here. 

Apart from the shortage of judges at every level of the judiciary, the second major problem facing the justice system in India is the number of pending cases.

Exactly how many cases are pending in the courts across the country? Perhaps the most reliable figures (but not necessarily 100% accurate) are in the National Judicial Data Grid (NJDG) which is an interactive page on the ecourts website – even though this plays truant sometimes. On accessing the NJDG, the information available is that 5.75 million cases are pending in the high courts (HCs) across the country, and 38.15 million cases are pending in the district courts (DCs). The total is a staggering 43.90 million cases. I believe there is no way this number can be substantially reduced.

Problems of plenty

What were the pendency figures some years ago? The Supreme Court publishes Court News every quarter. The publication is always late and not surprisingly so. The earliest publication pertains to 2006. The information available in that edition is that as of January 1, 2006, there were 3,521,283 cases (roughly 3.52 million) pending in the HCs and 25,654,251 cases (roughly 25.65 million) in the DCs making a total of 29.71 million cases.

So, over the last 15 years, there has been an astounding increase of about 14.2 million cases – an increase of almost one million per year! On January 1, 2006, the sanctioned strength of judges in the HCs was 762 and there were 154 vacancies (roughly 21%). Similarly, the sanctioned strength of judicial officers in the DCs was 14,412 and there were 2,730 vacancies (roughly 19%).

The increase in pending cases and vacancies in judicial appointments is best illustrated through the table below:

It’s easy to notice that the increase in the number of pending cases over a period of 15 years in HCs is over 2 million. This is despite tribunals having been created and cases transferred (in some states) from HCs to DCs due to an increase in pecuniary jurisdiction. What is perhaps more alarming, at least as far as the average litigant is concerned, is the increase in cases pending in DCs – about 12 million in 15 years. These increases in the HCs and DCs are notwithstanding an increase in the number of judges and judicial officers. With these statistics staring us in the face, do you seriously believe the problem can be tackled, particularly when no one seems inclined to aggressively address it?

Also read: Why Is it So Hard to Fill up the Judicial Vacancies in Our Courts?

Delay in disposal

Let me spook you a little more. It’s not only the numbers that numb, but the length of time that it takes to adjudicate some cases. The table below will give an idea of how long it takes for some cases to get adjudicated. In cases pending in the DCs, please remember that they are cases that need a decision in the first instance. After that, there is an appeal and so on.

So, if you are among those unlucky ones whose case is decided by the DC after several years and then an appeal is decided by the HC after several more years, would you still have faith in justice delivery in India and blithely say “let the law take its own course”? The table below will give an idea of how serious are the delays in decision making in our justice delivery system – more than 4.5 million cases have been pending for more than 10 years!.

The 120th Report of the Law Commission of India titled ‘On Manpower Planning In Judiciary: A Blueprint (1987)‘ observed that “the total judge strength of 7,675 is grossly inadequate for India.” Today, we have three times the number of judges and we are still saying the same thing – the judge strength is inadequate. It’s difficult to know how many cases were pending in the DCs in 1987, but I guess not too many – definitely not the kind of numbers that we are dealing with today. However, it is safe to assume that even though the 1987 numbers are not known, they have skyrocketed over the years. More than 30 years down the line since then, can one really be optimistic about the future of justice delivery?

The consequence of delayed justice is injustice. Consider a few examples. In March this year, Vishnu Tiwari was held not guilty of rape by the Allahabad high court after he had spent 20 years in jail. The HC observed:

“We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of the sentence of life imprisonment of the present accused. His case should have been considered but has not been considered.”

What did he have after 20 years in jail – Rs 600 – that’s it! No one is accountable for this tragedy. What is the most unfortunate aspect of this case? The Allahabad HC answered it thus: “Most unfortunate, aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years ….” Can you believe it? What was the State Legal Services Authority doing for 16 long years?

Six men were held not guilty by the Rajasthan high court in the 1996 Samletti blast case, after they spent 23 years in jail without bail or parole. Their lawyer was quoted as saying: “They were named in multiple cases without any basis. They have been acquitted in all the cases — but after 23 years.” Again, no one is accountable.

In March, Dipak Jaishi a Nepali citizen was ordered to be released by the Calcutta high court from the Dum Dum Central Correctional Home after spending 40 years in judicial custody as an undertrial prisoner. He was alleged to have been involved in a murder in Darjeeling district in 1981. Rip Van Winkle twice over.

Also read: A Nepali Man Returns Home, Scarred by 40 Years in Indian Jails Without Trial

Another truly amazing case is that of Prem Chand. In 1982 a sample of turmeric was taken from his shop and found to be adulterated with four living meal worms and two live weevils. He was tried but acquitted of the charge of food adulteration in 1995, after 13 years. It must have been a highly complicated case because 14 years later, he was convicted by the high court. Thereafter, it took 11 years for the Supreme Court to acquit him in 2020. Prem Chand spent 38 years of his life in the courts. No wonder, the gypsies have a curse: “May you be involved in a law suit in which you know you are in the right.”

Supreme Court. Photo: PTI

These are cases of common folk. What about the murder of a VIP? L.N. Mishra, the railway minister was killed in a blast in January 1975. The accused were pronounced guilty by the trial court after almost 40 years in December 2014. God forbid if any one of us lesser mortals get entangled in the court processes either as an accused or a victim.

These instances can be easily multiplied. But that is not what is sought to be highlighted. The question is of getting justice, when, and how. Is monetary compensation a good enough substitute? Certainly not, given the physical and mental trauma that an innocent person suffers for years in jail and the hardships faced by the family. But more often than not, even monetary compensation is not paid, and one might well ask: who cares? – certainly not the PTB [powers that be].

Chasing justice

An amateur comparison of caseloads in California has been made with three states in India – Bihar with a roughly similar population percentage of the country, Telangana with a roughly similar population and Uttar Pradesh the largest state in the country. The table below will give an idea of how efficient the system is in California as compared to the three states mentioned above. Disclaimer: The nature of cases filed in California might not be similar to the cases filed in the DCs in the three states. What is important in the present context is the number of cases and the output of the judges.

The figures speak for themselves. The output of about 4,000 judges (about 3.5 million decided cases) in three states is less than the output of about 1,754 judges (about 4.1 million decided cases) in California. Repeat disclaimer: The nature of cases is not known. Surely, we have something to think about and learn from California, but will somebody take the initiative and make an effort to study their system, or at least improve our system?

Some possible solutions

How do we go ahead from here? I believe it’s too late, but there’s no harm in making an attempt to turn things around.

First, conduct a massive house-cleaning exercise in every single court in the country. I can take a bet that a couple of million cases will be found either infructuous or not worth pursuing. Why am I so confident about this? A social audit was conducted, on request, by National Law University Delhi on the ‘functioning’ of the Supreme Court Legal Services Committee (SCLSC). After a detailed social audit report, one of the conclusions arrived at was:

“Project Sahyog is in many ways indicative of the potential within the SCLSC and yet in other ways is symptomatic of the deep malaise in India’s legal aid systems. Project Sahyog was imagined in March 2018 in response to the large pendency of criminal cases with the SCLSC, starting with cases going as far back as 2005. It emerged through conversations with the staff and the Hon’ble Chairperson that Project Sahyog was preceded by an effort to determine the active cases from among the long pending ones. This effort saw the SCLSC evaluate approximately 3900 files to come to the conclusion that 1800 of those had ceased to be active.”

This is over 45%.

Also read: What Can Be Done to Truly Ensure the Fast-Tracking of Criminal Cases Against Netas?

A few hundred of these ‘inactive’ files were actually infructuous in the sense that those seeking legal aid had already engaged private lawyers while the SCLSC was ‘busy’ processing their case papers or they had served their sentence during this period.

There have been instances in the past of Delhi Police chasing traffic violators to recover a fine of Rs 100 or Rs 200 and spending more than the fine amount in trying to locate the offender for several months, if not years. Was the effort worth it?

A casual discussion with some judicial officers suggested that about 20% of cases pending in the DCs might be infructuous. Assuming the figure is 5% – even then we are talking of about 2 million cases. Identifying junk cases is not a problem at all – but it requires a dedicated effort and a will to do it. Do we have that?

Second, organise and conduct a research study in the DCs of all the states. The study should be of about a sizeable number of courts (say 30 courts per district) or a sizeable number of cases (say 50,000 or more in a district). The purpose of the study would be to track the movement of cases and identify the stumbling blocks – why do some cases get decided in a few years and what is the nature of those cases? Why do some cases take eons for a decision and the nature of these cases?

File image of a statue depicting the scales of justice.

Do we need to re-engineer our systems and our rules? Do witnesses turn hostile because of court fatigue? I recall a presentation made by the National Judicial Academy in a regional programme in Jodhpur a few years ago. The academy presented a case in which 90 adjournments were granted in a space of three years, with an average of five adjournments every two months! Unbelievable, but true.

Among other benefits that such a study would provide is an understanding of the working of our legal aid system. Are the poor and disadvantaged actually getting effective legal aid or is poor legal aid offered to them? A case lying defective for 16 years or persons languishing in jail for more than 20 years – these are tragedies, not a simple failure of our system. Our prisons are hopelessly overcrowded and one reason is a large number of under-trial prisoners (more than 300,000) that is, about 69% of the prison population.

Many of them are incarcerated for several years pending trial. Bhima Koregaon prisoners are a small example and so are the elderly Stan Swamy and earlier Varavara Rao. There will be many like them – Brij Bihari Pandey was arrested in 1987 for the murder of four persons. He was in jail as an undertrial till 2009 when he was given a life sentence. He was released in 2011 after serving two years as a convict. His age at the time of release – 108 years! Fantastic, to say the least.

Third, there is a crying necessity of thinking out-of-the-box as well as utilising all existing resources. For example, establishing Lok Adalats was an excellent idea and it worked extremely well for many years but over the last decade or so, some ethical issues have been raised such as whether the litigants are voluntarily accepting an offer of settlement or are compelled to do so because of delays, expenses and other circumstances which are not entirely within their control.

Also read: Justice Lokur: Our Fundamental Rights to Free Speech and Protest Are Being Eroded and Mauled

The Law Commission of India, in its 114th report titled “Gram Nyayalaya” (1986) recommended the establishment of gram nyayalayas (village courts). Unfortunately, it took parliament more than 20 years to appreciate and accept the recommendations of the Law Commission. Eventually, the Gram Nyayalayas Act was enacted in 2008 and it came into force on October 2, 2009. The preamble to the Act states that it is “to provide for the establishment of Gram Nyayalayas at the grass roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities.”

Notwithstanding these lofty ideals, the fact is that a study reprinted in The Leaflet has revealed that since the enactment of the law, only 395 gram nyayalayas have been set up, while the law provides for one or more gram nyayalayas to be set up for every panchayat at the intermediate level or a group of contiguous panchayats at an intermediate level in a district. Why is it that we are unable to seriously and effectively implement laws enacted by parliament?

One of the perennial problems facing our justice delivery system is the ease of adjournments. To remedy this, the Supreme Court had advised the imposition of realistic costs for every adjournment granted in a case, and this, by the way, is also provided for in the Civil Procedure Code. But costs are rarely imposed on litigants and therefore, they think nothing of asking for an adjournment and judges think nothing of granting an adjournment and so there are cases and cases where adjournments and adjournments granted.

There are several other challenges facing our justice delivery system but unless the PTB identify them, introspect, find solutions to the problems and implement those solutions, I’m afraid we’ll have a system which is unable to dispense justice in time or at all. That’s when the cookie will crumble, or has it already?

Madan B. Lokur is a former judge of the Supreme Court of India.