ACCESS TO JUSTICE AND THE

INDIAN LEGAL SYSTEM

Civil Procedure Code

KOCHI
NO: Name of Researcher from Roll No:
Semester VI
1 Althea Correya 1332

2 Gopika Krishnan 1353

3 Jinu Jose 1358

4 Kavya Prajith 1362

5 R. Ananthesh 1375

6 Rose Ann Joseph 1376

7 Sreyas Manoj 1385

8 Animesh Pandey 1393

9 Melvin Jose 1398

10 Himavanth Reddy 1401

11 Megha Benoy 1404

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 TABLE OF CONTENTS
ACCESS TO JUSTICE UNDER THE CONSTITUTION OF INDIA .................................... 5

HISTORY OF THE COMMON LAW RIGHT OF ‘ACCESS TO JUSTICE’ ................................................ 5

INTERNATIONAL HUMAN RIGHT LAWS ........................................................................................ 6
POSITION AS FAR AS INDIA IS CONCERNED.................................................................................... 7
Position during the pre-independence times ........................................................................... 7
Post independence positions.................................................................................................... 8
Right to Equality and Access to justice ............................................................................... 8
Right to Life and Access to Justice...................................................................................... 9
Enforceability..................................................................................................................... 11
WRIT PROVISIONS ..................................................................................................... 11
Directive Principles of State Policy ............................................................................... 11
Other Constitutional provisions ..................................................................................... 11
Provisions for funds.................................................................................................... 11
Residuary Powers ....................................................................................................... 12
Locus Standi and Access.................................................................................................... 12
Latest position with regard to the Indian Scenario ............................................................... 12
STEPS TAKEN BY DEPARTMENT OF JUSTICE................................................................................ 13
NYAYMITRA Program .......................................................................................................... 13
TELE Law Scheme................................................................................................................. 13
Nyay Bandhu (Pro Bono) App ............................................................................................... 13
CONCLUSION .............................................................................................................................. 13

A COMPARATIVE PERSPECTIVE ON JUDICIAL DELAYS AND SOLUTIONS ........ 15

ROMANIA ................................................................................................................................... 15
TURKEY ..................................................................................................................................... 16
AUSTRALIA ................................................................................................................................ 17
NETHERLANDS ........................................................................................................................... 18
CANADA ..................................................................................................................................... 19
SINGAPORE ................................................................................................................................. 21
RECOMMENDATIONS .......................................................................................................... 22

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ACCESS TO JUSTICE AND DELAY IN COURTS .............................................................. 23

FACTORS LEADING TO DELAY OF COURT PROCEEDINGS .............................................................. 23

Vacancies in Judiciary........................................................................................................... 23
Inadequate Number of Courts ............................................................................................... 24
Judge-Citizen Ratio ............................................................................................................... 24
Endless Amendments of Statutes............................................................................................ 25
Lack of Accountability of Judges........................................................................................... 25
Misuse of Public Interest Litigations (PIL) ........................................................................... 27
Misuse of Writ Petitions ........................................................................................................ 28
Inadequate arrangements in hearing cases........................................................................... 28
Transfer of Judges ................................................................................................................. 29
Huge number of appeals........................................................................................................ 29
Pre-trial delays ...................................................................................................................... 29
Delay in investigation ........................................................................................................ 29
Delay in service of summons............................................................................................. 29
NON- EXAMINATION OF PROCESS SERVERS ......................................................... 31
Delay in Filing of Written Submissions and Documents................................................... 32
Delay in Framing Issues/Charges ...................................................................................... 32
Delay during Trial-................................................................................................................ 34
Adjournment for petty reasons........................................................................................... 34
Non-attendance of Witnesses- ........................................................................................... 34
Absence of lawyers-........................................................................................................... 35
Lengthy Oral Argument-.................................................................................................... 35
Non-appearance of parties ................................................................................................. 36
EFFECT OF NON-APPEARANCE OF THE PLAINTIFF.............................................. 36
EFFECT OF NON-APPEARANCE OF THE DEFENDANT.......................................... 36
CONSEQUENCES OF NON-APPEARANCE OF BOTH THE PARTIES..................... 37
Delay caused due to absconding accused .......................................................................... 37
Delay in Recoding of evidence .......................................................................................... 37
Exhibiting the documents and stage of taking objections and deciding objections........... 38
Non-receipt of the Death Report of an Accused or Witness.............................................. 38

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 Non-Adherence to Order X................................................................................................ 39
Application at Any Stage ................................................................................................... 40
INTERLOCUTORY APPLICATIONS............................................................................. 41
ORDER XX ....................................................................................................................... 41
Delay in Delivery of Judgment due to unnecessary adjournments.................................... 41
Delayed Pronouncement of Judgment ............................................................................... 43
Delay during the Appellate Proceedings............................................................................... 43
Delay during Execution Proceedings .................................................................................... 44
PRIMARY FEATURES OF ’99 & ’02 AMENDMENTS TO THE CIVIL PROCEDURE CODE ................... 44

ALTERNATIVE DISPUTE RESOLUTION - UNDER §89 OF CIVIL PROCEDURE

CODE ........................................................................................................................................... 48

INTRODUCTION ........................................................................................................................... 48

REVIEW OF LITERATURE ............................................................................................................ 48

CASES WHICH CANNOT BE REFERRED TO ADR:.......................................................................... 50
CASES WHICH CAN BE REFERRED TO ADRS: .............................................................................. 50
LACUNA IN THE LAW.................................................................................................................. 51
ONLINE DISPUTE RESOLUTION ................................................................................................... 52
MINDSET OF THE STAKEHOLDERS ON THE IMPLEMENTATION OF §89.......................................... 53
RESULT ...................................................................................................................................... 54
RECOMMENDATIONS .................................................................................................................. 54
Proposed amendment to §89 of CPC .................................................................................... 54
OTHER RECOMMENDATIONS ...................................................................................................... 55

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 ACCESS TO JUSTICE UNDER THE
CONSTITUTION OF INDIA
The authors in this part will deal with the issue of access to justice under constitution of India.
As is well known, the justice system in any democracy is set up under the constitution to serve
the public without affection or ill-will; fear or favour. This spirit is upheld by the Indian
Judiciary. The Indian judicial system, like those in the Commonwealth countries, is firmly rooted
in common law tradition. The subject, ‘Access to Justice’ is of great historical and contemporary
relevance.

Before we move onto the concept in detail, it is necessary to first understand what the concept,
‘Access to Justice’ means to the public. Fundamentally, it means that a person must be given the
right to approach the courts with regard to a legal matter. However, the concept is not as narrow
as to merely indicate approach. It has many other facets such as the nature of different rights,
number of courts, quality of justice, independences of judges who preside over the courts, legal
aid to public interest litigation etc.

HISTORY OF THE COMMON LAW RIGHT OF ‘ACCESS TO JUSTICE’

‘Access to Justice’ is a basic human right conferred by common law and exists unless it is taken
away under any valid exercise of statutory or constitutional power by the legislature. In England,
it was when Henry II was the king of the country in the 12th century that concept of rule of law
and ’access to justice’ took roots because the king agreed to establish a system of justice which
would enable all the litigants coming from all classes to avail themselves of King’s justice. But it
shortly, there abuse of the same, i.e., King’s Justice, under the reign of King John. In retaliation,
there was a rebellion in 1215, that led to signing of Magna Carta. This document became the
initial source of British constitutionalism.

At this juncture, the quote of the Blackstone seems apt that: “It is the function of the law to
protect the weak from the insults of the stronger.1” The commentaries of Sir Edward Coke and

1
3 William Blackstone, Commentaries *3.

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William Blackstone crystallized the fundamental principles of common law principles that
enshrined the basic human rights of man.

The novelest theory with regards to the right to ‘access to justice’ is that it was part of the
common law and later recognized as a constitutional law principle. Lord Diplock, while dealing
with the High Courts’ power to control the conduct of arbitrators, incidentally referred to the
common law aspect of access to justice. He opined in Bremen Vulkan Schiffban and
Maschinenfabrik v. South India Shipping Corp2:

“Every civilized system of government requires that the State should make available to
all its citizens a means for the just and peaceful settlement of disputes between them as to
their respective legal rights. The means provided are courts of justice to which every
citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to
which he claims to be entitled in consequence of an alleged breach of his legal or
equitable rights by some other citizen, the defendant.”

De Smith’s Judicial Review of Administrative Action3 was quoted by Sir John Laws in R v Lord
Chancellor4 (para 5.017):

“It is a common law presumption of legislative intent that access of Queens’s Court in
respect of justiciable issues is not to be denied save by clear words in a statute”

Similarly in the case of Raymond v. Honey5, Lord Wilberforce described access to justice as a
‘basic right’.

INTERNATIONAL HUMAN RIGHT LAWS

In 1948, with the recognition of the Universal Declaration of Human Rights (UDHR), the right
to access to justice was given universal recognition. Apart from UDHR there is similar provision
which state about the right to access to impartial and independent justice in International
Covenant on Civil and Political Rights6, the Convention on the protection of human rights and

2
Bremen Vulkan Schiffban and Maschinenfabrik v. South India Shipping Corp, 1981 AC 909: 1981 (1) All ER 289.
3
DE SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (5th ed. 1995).
4
R v Lord Chancellor (ex parte Witham), 1997 (2) All ER 779.
5
Raymond v Honey, 1983 AC 1.
6
International Covenant on Civil & Political Rights art. 14, Mar. 23, 1976, 999 U.N.T.S 176.

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fundamental freedoms7 and other regional conventions. Cases like Golden v. UK8 and Airey v.
Ireland9 also go on to uphold the same principles.

POSITION AS FAR AS INDIA IS CONCERNED

`The Indian Courts have always stood for access to justice because of the fact that India is a
common law country and also the same (access to justice) is guaranteed as a right under the
constitution. Even before Independence, there were two landmark cases with regards to the
concepts which would establish the fact that the concept of a non-derogable right of access to
justice was recognized and enforced by the courts in this country.

POSITION DURING THE PRE-INDEPENDENCE TIMES

The first of these decisions rendered by an Indian court was of Re: Llewelyn Evans10 . The case
came before Bombay High Court and the bench presided over by Justice Fawcett in the instant
case referred to the report of the Rawlinson Committee in England and noted:

“the days have long since gone by, when the state deliberately put obstacles in the way of
an accused defending himself, as for instance, in the days when he was not allowed even
to have counsel to defend him on a charge of felony.”

Thus in the instant case, the Hon’ble justice upheld the principle of access to justice.

Another case which can be said to have been decided at a time of great significance to both India
and the world was P.K. Tare v. Emperor11. It is of importance as the petitioner in the instant case
had participated in the Quit India Movement of 1942, which clearly was a time of great turmoil,
both politically and legally. In this case, the court categorically ruled that the “attempt to keep the
applicants away from this Court under the guise of these rules12, is an abuse of power and
warrants intervention.” Justice Vivian Bose, in the course of his judgment, emphasized the

7 Convention on the Protection of Human Rights and Fundamental Freedoms art. 6, Nov. 4, 1950, 213 U.N.T.S 228;
Convention on the Protection of Human Rights and Fundamental Freedoms art. 13, Nov. 4, 1950, 213 U.N.T.S 232.
8
Golden v UK, 1975 (1) EHRR 524.
9
Airey v Ireland, 1979 (2) EHRR 305.
10
In Re Llewelyn Evans v Unknown, AIR 1926 Bom 551.
11
P.K. Tare v Emperor, AIR 1943 Nag 26.
12
The Government of the day contended that the Defense of India Act 1939 took away the right to move a habeas
corpus petition under §491 of the Cr.PC 1898.

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importance of the right of any person to apply to the court and demand that he be dealt with
according to law.

POST INDEPENDENCE POSITIONS

There was a renewed interest in enunciating the subject of access to justice under the Indian
Constitution post-independence. In the matter of, Reference under Article 143 of the Constitution
of India13, the Indian Supreme Court held that

“The existence of judicial power in that behalf must necessarily and inevitably postulate
the existence of a right in the citizen to move the court in that behalf.”

This observation highlighted the importance of judicial review guaranteed under Art. 32 of the
Constitution.

RIGHT TO EQUALITY AND ACCESS TO JUSTICE14

In India, the Right to Equality includes equality of status and opportunity as well as social,
economic and political justice. Such concepts cannot be fulfilled unless there is legal aid and
access to courts. Legal aid helps to bring the weaker sections of the society on par with those
who can afford legal counsel.

Art. 14 of the Indian Constitution includes equality before the law and equal protection of the
law. The former concept has been taken from England whereas the latter has been taken from the
US. Moreover, the former points to treating everyone as equals regardless of the fact that some
may have more social influence, economic affluence and political power than others. The latter
points to treating equals as equals and affording certain special provisions to those who are at a
disadvantageous position when compared to the others.

There may be several issues that are intrinsic to India such as illiteracy, ignorance, poverty, lack
of faith in the judicial system etc. When such issues are present, it is necessary that a person be

13
In the matter of, reference under Article 143 of the Constitution of India, AIR 1965 SC 745.
14
E-PATHSHALA – MINISTRY OF HUMAN RESOURCE DEVELOPMENT, ACCESS TO JUSTICE,
http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/02._access_to_justice/03._access_to_justice_under_in
dian_constitution/et/5630_et_03et.pdf.

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given free legal aid irrespective of his means or knowledge. Thus, access to justice and free legal
aid would come under the ambit of equal protection before the law.

Moreover, phrases like audi alteram partem have found applicability in India. This phrase
translates to ‘hear the other side.’ Thus, it is an intrinsic part of Art. 14 and thus legal aid access
of courts and justice would also form a part of Art. 14 under this definition.

RIGHT TO LIFE AND ACCESS TO JUSTICE

The 42nd Amendment to the Constitution introduced Art. 39A to the Constitution. Major strides
were again made in the development of the jurisprudence surrounding the “right to life” under
Art. 21, particularly after the landmark Maneka Gandhi case15 . The linkage between Art. 21 and
the right to free legal aid was decided in the decision in Hussainara Khatoon v. State of Bihar16,
where the court was appalled at the plight of thousands of under trials languishing in the jails in
Bihar for years on end without ever being represented by a lawyer. The court declared that

“there can be no doubt that speedy trial, and by speedy trial, we mean reasonably
expeditious trial, is an integral and essential part of the fundamental right to life and
liberty enshrined in Art. 21.”

The court in the instant decision highlighted the fact that Art. 39A emphasized free legal service
as an inalienable element of “reasonable, fair and just” procedure and that that the right to free
legal aid is implicit under Art. 21 of the constitution. This makes it a fundamental right and on
violation of the same by the State, one can directly approach the Supreme Court by invoking Art.
32 of the constitution. One of the eminent jurists, PN Bhagwati opines that legal aid is really
nothing but equal justice in action. He reiterates the same view in Suk Das vs Union Territory of
Arunachal Pradesh 17 . He states that it is a settled principle that free legal assistance on the
expense of the State is a fundamental right. Similar were the views of another great advocate and
architect of Human Rights Jurisprudence, Justice VR Krishna Iyer. In MH Hoskot v State of
Maharashtra18, Justice Iyer held that:

15
Maneka Gandhi v Union of India, 1978 (1) SCC 248.
16
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81.
17
Suk Das vs Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.
18
MH Hoskot vState of Maharashtra, (1978) 3 SCC 544.

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 “If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional
and statutory right of appeal inclusive of special leave to 15 appeal (to the Supreme
Court) for want of legal assistance, there is implicit in the Court under Art. 142 read with
Arts. 21 and 39-A of the Constitution, power to assign counsel for such imprisoned
individual ‘for doing complete justice”.

It is also a noteworthy point that the right to legal aid cannot be denied on the ground that the
person failed to apply for the same. The Magistrate is under an obligation to inform the accused
about his rights and to enquire about his decision regarding legal representation at the State’s
expense, if the accused does not have the means to engage a pleader. It was in the case of Mohd
Ajmal Amir Kasab v State of Maharashtra19 that the Supreme Court directed all the Magistrates
in India to discharge their duty regarding provision of information on free legal aid, when a
person is arrested in connection with a cognizable offence and is produced before them.

There have been several judgements where the courts have held that indigence should never be a
reason as to why a person is not given a competent attorney. 20 Since Govt. established colleges
alone cannot ensure that competent attorneys are produced, private establishment should also be
allowed to operate in the sphere to further this goal.21

Even in times of arrest and detention, the right to access to justice is not suspended. Art. 22 of
the Indian Constitution specifies a certain procedure to be followed at the time of arrest and
detention, which is the very basic requirement of a just, fair and reasonable procedure established
to take away the life and liberty of a person. It states that no person who is arrested should be
detained in custody without being informed as soon as possible about the grounds for such arrest.
Nor shall he be denied the right to consult and to be defended by a legal petitioner of his
choice.22 This right belongs to the arrested person not only at the pre-trial stage, but also at the
stage of trial before a criminal court / before a special tribunal, based on whether the arrest is
made under a general law or under a special statute.23

19
Mohd Ajmal Amir Kasab v State of Maharashtra, (2012) 9 SCC 1.
20
Ranjan Dwiwedi V. Union of India, AIR 1983 SC 624.
21
State of Maharashtra V. Manubhai Pragaji Vashi, (1995) 5 SCC 730.
22
Supra note 14.
23
State of M.P. V. Shobharam, AIR 1966 SC 1910.

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The current situation with respect to legal aid is firmly established in India as it finds mention in
§12 of the Legal Service Authority Act, 1987.

ENFORCEABILITY

WRIT PROVISIONS
In case of failure by the State in discharging its obligation to provide legal access to its citizens,
the Supreme Court of India or the High Courts may be moved by a writ petition under Arts. 32
and 226 respectively. The former gives the Supreme Court power to issue writs (habeas corpus,
mandamus, prohibition, quo-warranto and certiorari) for the enforcement of fundamental rights
and is a fundamental right in itself. The latter is exercised by the High Courts. Though Art. 226
is not a fundamental right in itself, the courts can pass writs while dealing with issues where
there has been violation of fundamental and non-fundamental rights.

DIRECTIVE PRINCIPLE OF STATE POLICY

Apart from legal aid under Art. 39A of the Constitution, there are several other provisions under
the constitution which act as guiding principles for promoting access to justice. These provisions
are Arts. 38, 41 & 46. Under Art. 38, the State is under an obligation to promote the welfare of
the people. It has to achieve it by securing and protecting as effectively as possible, a social order
in which justice - social, political and economic shall inform all the institutions of the national
life. Legal aid comes under Art. 38 because of the fact that it helps in combating the inequality in
income prevalent in the society, and tries to bring equality by making legal aid accessible to all,
irrespective of the affordability of the same. Similarly, Art. 41 provides for public assistance.
Thus, the State is duty bound to provide free legal aid to poor, illiterate or ignorant people. The
State as per Art. 46, is under an obligation to promote with special care, the educational and
economic interest of the weaker sections of the people. This is in particular to the schedule castes
and the schedule tribes. The goal is to protect them from social injustice and all forms of
exploitation

OTHER CONSTITUTIONAL PROVISIONS

PROVISIONS FOR FUNDS

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Art. 282 provides that the Union or a state may make grants for any public purpose. So under the
purview of this Article, the Union or the state can give grants for providing free legal aid,
spreading legal awareness etc., which are public purposes.24

RESIDUARY POWERS
Art. 141(2) of the Indian Constitution provides the Hon’ble Supreme Court of India with the
power to pass any decree or order for doing complete justice in the matter before it. This helped
the court to provide access to justice in necessary cases prior to the enactment of the Legal
Services Authorities Act, 1987.

LOCUS STANDI AND ACCESS

Traditionally, the rule of locus standi provided that only the aggrieved could bring a case in the
courts. This position was abandoned by Justice Krishna Iyer in Mumbai Kamgar Sabha V.
Abdullabhai25. In this case, the concept of social litigation was introduced in India and allowed
any public spirited organization or person to file cases for the aggrieved. This is mainly used for
poor and illiterate members of the society.

LATEST POSITION WITH REGARD TO THE INDIAN SCENARIO

The case of Anita Kushwaha v. Pushap Sudan 26 is the Supreme Court’s latest stride to tackle the
issue of access to justice and Constitutional provisions. Then Chief Justice of India, T. S. Thakur,
while delivering the judgement mentioned that access to justice is a concept that is not just
rooted in Art. 21 of the Indian Constitution, but also in Art. 14. The following were held to be
the four facets of access to justice:

1. “The state must provide an effective adjudicatory mechanism.

2. The mechanism so provided must be reasonably accessible in terms of distance.
3. The process of adjudication must be speedy.
4. The litigant’s access to the adjudicatory process must be affordable.”

24
Supra note 14.
25
Mumbai Kamgar Sabha V. Abdullabhai, AIR 1976 SC 1455.
26
Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509.

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 STEPS TAKEN BY DEPARTMENT OF JUSTICE

The following are the different steps and schemes taken up by the Department of Justice
(Ministry of Law & Justice), to tackle the issue of Access to Justice and to reduce the backlog of
cases, which stands at 3 crores (as per the NJDG27 statistics).

NYAYMITRA PROGRAM

It is an initiative by DoJ with respect to tackling the issue of backlog of cases. The programs aim
at assisting the District Judiciary of several states so that they can successfully reduce the
pendency of ten-year-old cases. Further, the program also aims at increasing access to justice for
the marginalized people. The key highlight of this program is that it was launched in 227 districts
of the country which came under 16 states. The District Courts, which were found to have the
highest number of pending cases over a 10 year of period were chosen for the program.28

TELE LAW SCHEME

The DoJ has partnered with NALSA and CSC E-Governance Service Ltd. Steps have been taken
to mainstream the legal aid provided to the marginalized communities via Common Law
Centers. This initiative will help in providing legal advice from a panel of expert lawyers who
will be stationed at the SLSA. This project will connect the lawyers with the clients via video
conferencing.

NYAY BANDHU (PRO BONO) APP

The DoJ has also released an application with the title Nyay Bandhu (Pro Bono) in order to
facilitate access to justice to marginalized people, as this app brings together all the lawyers who
are willing to give free consultation to people who are not in position to pay the fees. The
application acts as a connection between the needy and the lawyer.

CONCLUSION

27
NATIONAL JUDICIAL DATA GRID, www.njdg.ecourts.gov.in (last visited Apr. 09, 2020).
28
Id.

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The authors, at this stage, collectively highlight the Gandhian dictum, “In whatever we do, we
keep in mind the weakest person and ask how useful to him any system would be.” Moreover, the
same Gandhian thought has been pithily captured in the words of the court in the famous case
Bihar Legal Support Society v. The Chief Justice of India & Ors29:

“The weaker sections of Indian society have been deprived of justice for long long years;
they have had no access to justice on account of their poverty, ignorance and
illiteracy.…..The majority of the people of our country are subjected to this denial of
‘access to justice’ and overtaken by despair and helplessness, they continue to remain
victims of an exploitative society where economic power is concentrated in the hands of a
few and it is used for perpetuation of domination over large masses of human beings……
The strategy of public interest litigation has been evolved by this Court with a view to
bringing justice within the easy reach of the poor and disadvantaged sections of the
community”

29
Bihar Legal Support Society v. The Chief Justice of India & Ors., AIR 1987 SC 38.

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 A COMPARATIVE PERSPECTIVE ON
JUDICIAL DELAYS AND SOLUTIONS
Delays in judicial processes are a serious issue plaguing efficient justice administration. We have
seen that the judicial system in India bears significant brunt due to this issue; however, it is to be
understood that many other States are facing, or had been facing such an issue. This section
seeks to provide a set of recommendations which have been drawn up in accordance with some
of the practices devised by judiciaries in foreign States in addressing the issue.

ROMANIA

Romania, being a member of the European Union, and a signatory to the European Convention
on Human Rights, was ordered by the European Court on Human Rights in Pantea v. Romania30
to provide a mechanism to prevent or remedy excessive length of judicial proceedings. Romania
is a State wherein judicial delays are commonplace, and the Court in the aforementioned
decision has acknowledged this fact, and had come to the finding that Romania has violated
Clause 1 of Article 6 of the European Convention on Human Rights, which places an obligation
on signatory States to ensure completion of judicial processes in both civil and criminal matters
in a reasonable time.

In the aftermath to the ruling of the Court, several amendments designed to expedite proceedings
were made, such as: creation of a written phase for immediate rejection of invalid claims;
clarification of rules related to jurisdiction; the possibility to assess evidence throughout lawyers
or legal counsellors; restrictions introduced on the possibility of referring matters to courts of
cassation, implementing procedures to filter second appeals to those courts, and stipulating more
restrictive admissibility criteria.

One of the amendments made to the Romanian Civil Procedure law was that the minimum
requirements of the application or suit (such as: the name of the claimant and of the defendant,
the object of the claim, the factual background, the signature, payment of the judicial fee) are
verified before the filing is notified to the defendant, in order to avoid adjournment at the first

30
Pantea v. Romania, no. 33343/96, §§ 272-283, ECHR 2003-VI (extracts).

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hearing due to lack of the minimum requirements. Also, if the claimant does not comply with all
the requirements as addressed by the court within a ten-day term, its request shall be annulled
during the written phase. However, even if this seems a rather efficient remedy, there are courts
of law that continue the proceedings even if the claimant does not meet all the requirements
within the ten-day term. Another remedy worth mentioning consists in establishing strict
conditions for the adjournment of hearings due to lack of defense. From the notification of the
statement of claim three months may pass before the establishment of the first hearing in a civil
case. Also, the rules related to jurisdiction were clarified. Courts of law must establish their
jurisdiction at the first hearing, where both parties are legally summoned. Moreover, the plea for
lack of jurisdiction based on the subject matter referred to the court or on territorial grounds must
also be invoked at the first hearing.

This amendment is very significant, as it forces the Courts to establish their jurisdiction prior to
ruling upon the merits of the case, and it also precludes the parties from referring to the
jurisdiction matter directly in appeal. The importance of the first hearing is doubled by the fact
that it is the moment when the court needs to estimate, by consulting the parties, the length of the
proceedings – criteria such as the complexity of the case and the amount of evidence that needs
to be assessed are to be taken into consideration. Hence, the aforementioned are some of the
changes brought about in the Romanian Civil Procedure law to reduce the length of proceedings
in the interest of justice.

TURKEY

Though court delays are not a traditional issue for the Turkish judicial system, a spurt in civil
matters, and more specifically in commercial disputes, in recent times is testing the efficiency of
civil courts there. In order to counter this, Law No. 703631 was enacted in 2017, with regard to
labor disputes. The key change brought by the New Law is mandatory mediation.

Pursuant to the Article 3 of the New Law, it is now mandatory for the parties to apply to a
mediator before issuing proceedings before the Turkish labor courts for (i) claims of employees
or employers arising from law, individual or collective labor agreements and (ii) reinstatement
claims of employees. The claimant is required to attach to the points of claim, the original (or a
31
Turkish Civil Code, Law No. 7036 Official Gazette [Resmi Gazete = R.G.], 25 October 2017 No. 30221.

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copy certified by the mediator) of the minutes of mediation, showing that the parties could not
reach a compromise. Any proceedings issued before concluding the mediation process will be
dismissed by the court on procedural grounds.

The New Law has excluded certain claims from this mandatory requirement; namely
compensation claims for material or moral damages arising from work-related accidents or
occupational illness. Those claims can directly be brought by the parties before the Turkish
courts, without applying to a mediation procedure first.

Statistics published for January 2018 to May 2018 show that 65% of disputes resulted in an
agreement after mandatory mediation negotiations. Within the same period, the number of
applications made for discretionary mediation regarding different kinds of dispute (eg, other
employment disputes, contractual claims and disputes regarding ownership on immovable
property) was 15,655, 97% of which were concluded with consensus and only 421 did not reach
an agreement.

AUSTRALIA

As far as Australia is concerned, some targeted measures have been introduced in civil law
litigation to prevent people with limited financial resources from being involved in lengthy,
complex and inefficient litigation, the most prominent examples of which are, litigation funding
and case management32.

Case Management is a key measure implemented by both the Australian Government and the
courts to reduce the length and complexity of civil litigation and improve judicial efficiency. The
Access to Justice (Civil Litigation Reforms) Amendment Act, 2008 was passed to facilitate the
same33.
 The Federal Court intends to focus upon early judicial involvement in the identification of
real issues in dispute, and careful management of discovery and other procedural matters.

32
PARLIAMENT OF AUSTRALIA, MEASURES TO REDUCE THE LENGTH AND COMPLEXITY OF LITIGATION AND IMPROVE
EFFICIENCY (2008),
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_
inquiries/2008-10/access_to_justice/report/c05.
33
David neubauer, Judicial role and case management, 4 JUS S. LJ. 226, 225 (1978)

17 | P a g e
 The Federal Court has independently instituted measures aimed at reducing the cost of
proceedings, including: active case management; the allocation of cases to individual
dockets; and a comprehensive program of court-annexed mediation and other forms of
assisted dispute resolution.

There also exists a robust litigation funding market where sufficient capital is available to
underwrite the risks associated with large group claims. These benefits could extend, for
example, to people injured in major industrial accidents or mass latent injury claims against
corporations or other entities, where there is evidence of negligence or recklessness as to
employee or community safety34.

NETHERLANDS

The Dutch justice administration has always been renowned for its efficiency, and had been early
proponents of various methodologies including summary proceedings. But, the county recently
reformed its judiciary, in a process referred to as Quality and Innovation (Kwaliteit en
Innovatie).

Various legislative measures that could improve timeliness in civil proceedings were introduced.
To that extent, the small claim and the uncontested claim procedure was simplified, the number
of appeals was reduced and mediation and conciliation tools are promoted, putting a specific
emphasis on final dispute resolution.35

Judicial Case Management – Netherlands uniquely puts emphasis on the division of labor
between judges and court clerks, and management of expert witnesses. The Netherlands also has
an official monitoring system for experts in civil cases

Management of Judicial Experts - The application of the specialized knowledge of an expert may
be necessary for the proper evaluation of facts in certain cases. The Dutch judiciary drew up
detailed guidelines for expert opinions concerning (amongst other things) the communication
with the parties, the right to hear and be heard and impartiality. They are also developing an

34
ANNA OLIJNYK, JUSTICE AND EFFICIENCY IN LITIGATION (1st ed. 2019).
35
R.E. Messick, Judicial Reform and Economic Development: A Survey of the Issues, 14(1) World Bank Res. Obs.
117, 117-119 (2015).

18 | P a g e
official system to monitor the quality of experts, based on the one established in Belgium that
created a department concerned with

o offering a personalized service to experts and different parties

o checking compliance with the prescribed deadline for the report and reminding the expert of
this deadline, if necessary
o and registering information concerning the experts in a special information system developed
for this purpose.

The system has resulted in an increased quality of expert opinions, a reduction of the time they
needed and quicker payment of the experts36.

Performance Management -The quality of the judicial system is measured by RechtspraaQ, the
common and overarching quality system of the judiciary. It promotes target-setting and making
sure that effort, resources and efforts contribute to the achievement of these targets, which
include set standard of user satisfaction and case clearance rates/case backlogs.

Use of ICT in Court Proceedings – This involves case management systems, electronic delivery
and submission of documents, as well as other electronic solutions for improved use of ICT.

 Electronic Communication - The level of security required makes the secure involvement of
the defending party in online proceedings a complex issue. The Electronic Legal
Communication System (Elektronischer Rechtsverkehr) from Austria, is a functioning
paperless electronic communication tool used for communication between parties and the
court, and has been among the inspiration behind the Dutch system
 Innovation within the Courtroom - Audio-visual recordings of court hearings allows the later
review of the court hearing in either audio or video format.

Management of Judicial Experts, Performance management and Use of ICT are methods we can
adopt into our own system, taking references from nations like Netherland, Belgium, Spain etc.

CANADA

36
Thomas de Weers, Case Flow Management Net-project – The Practical Value for Civil Justice in the Netherlands,
8 INTL J. CA. 8, 9 (2016).

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Provinces and territories are implementing a number of programs aimed at expediting and
streamlining dispute resolution in small and simple civil matters. A robust pre-trial procedure
also exists, that for allows more accurate estimates of court time needed, saving time and
resources, it applies a ‘substantial likelihood of conviction’ test for all regions.

The country for a period in the 90s also introduced Backlog reduction programs. In Ottawa a
running Civil List was introduced. Judges must be made available to work exclusively in sittings
of four to six weeks, on the Civil Non-Jury List. Law students or associate lawyers, funded by
the province, were also selected to examine all case files from the trial and provide summaries of
the issues involved, in order to determine the true extent of the backlog37.

The Central West adopted more aggressive tactics-

o requiring litigants to move to other centers, such as Milton or Orangeville, where lists are
more manageable, to have their cases tried;

o instituting a mini-trial process;

o using senior practitioners to conduct pre-trials;

o Imposing cost sanctions for lack of preparation for pre-trials, failure to comply with
undertakings or lack of disclosure at pre-trial;

o utilizing a trial audit system for family law cases;

o transfer of staff to ensure that the support needed for additional trials is available;

Generally, a trial team and a pre-trial/settlement team were created for purposes of pre-trying and
trying, the backlog cases in the court centers around the provinces. The trial team was drawn
from existing judicial resources.38

The aggressive approach to Backlog reduction might be something India should consider.

37
Thomas A. Cromwell, Canada: Changing Priorities, 20 JUS SYS. J, 164, 165 (1999).
38
Harry D. Nims, The Law's Delay: The Bar's Most Urgent Problem, 44 Am. Bar Assoc. 125, 125 (1998).

20 | P a g e
 SINGAPORE

The Singapore Judiciary is presently lauded for “its efficiency, its technological sophistication,
its accessibility and the confidence of Singapore’s citizens and businesses in the system. The
same wasn’t true over two decades ago, as courts suffered from delays in the hearing of cases,
and a backlog of cases accumulated. To address the case backlog, the Singapore Judiciary
implemented a host of measures in the 1990s, these included initiatives in case management,
change management, and procedural reforms.

The measures themselves could be broadly divided into four categories: diversionary,
facilitative, monitoring and control, and dispositive;39
Diversionary measures - The aim was to divert disputes from full-blown litigation. In brief, this
was achieved through the use of, inter alia, alternative dispute resolution (ADR), pre-action
protocols and extra-judicial resources. It supports arbitration by giving full effect to party
autonomy and keeping curial intervention with arbitration proceedings to a minimum, facilitated
be the Singapore International Arbitration Center.

Facilitative measures - Abundant resources were allocated to case management and certain court
processes were streamlined. One measure that Singapore undertook to combat the backlog
problem in the early 1990s was to appoint more adjudicators. Interestingly, the Supreme Court of
Singapore successfully implemented a new scheme, called the Case Management Officer
Scheme (“CMOS”) in 2011 for the addition of administrative staff to courts.

Monitoring and Control measures - Monitoring of relevant statistical data, in order to improve
the overall quality and efficiency of the justice system.
Dispositive measures - Singapore’s Rules of Court provide that if no step or proceeding has been
taken in any action, cause or matter for more than a year, the action, cause or matter will be
deemed to have been discontinued.

39
Chee Hock FOO et al., Civil case management in Singapore: Of models, measures and justice. ASEAN L. J. 1-34
(2014).

21 | P a g e
The key measures described above, implemented in combination with other measures, have
helped to eliminate case backlog and prevent it from arising again. The effectiveness of the
measures we have taken is apparent from the statistics. As early as January 1993, civil cases
awaiting trial had been reduced from 2,059 (as of 1 January 1991) to 175 cases.

RECOMMENDATIONS

It is pertinent that although the above jurisdictions do not purely follow the common-law
tradition, it does not preclude us from attempting to assimilate the steps that they have
undertaken to solve the issue of judicial delays. First of all, pursuant to the Romanian Model, a
thoughtful revision of the Civil Procedure Code, 1908 is necessary to remove or modify the
provisions which may contribute to increased length in completion of proceedings. Relatively
mundane errors in plaints which would not constitute a material jeopardy in the adjudication of
matters must be ignored. Furthermore, jurisdictional issues must be promptly and conclusively
resolved, in order for not rendering them alone as grounds for an appeal, thereby resulting in
greater completion of cases. In addition to this, more commercial matters need to have
mandatory mediation as a prerequisite to litigation. This ensures greater efficiency of the court
system by offloading additional burden on it. This experiment proved to be a huge success in
Turkey, and would undoubtedly contribute to alleviating the issue in India as well.

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 ACCESS TO JUSTICE AND DELAY IN
COURTS

FACTORS LEADING TO DELAY OF COURT PROCEEDINGS

VACANCIES IN JUDICIARY

The hopelessly inadequate number of Judges is undoubtedly one of the major reasons for the
delay in disposal of cases. Successive Governments have not only failed to increase the
numerical strength of the Judges, but have also been slow in filling up of vacancies. This is the
most important cause of delay. Now-a-days, this is one of the most debated issue. Huge number
of vacancies poses a major setback for the speedy justice. To cope up with the ever increasing
volume of work, there is a need to maintain the existing strength of judges and augment the same
wherever required, keeping in view the volume of work. The judicial appointments are held up
for no valid and publicly debatable reasons. The position of appointments to the lower courts and
tribunals is extremely unfortunate and disheartening. It hardly matters what the reasons are
behind delay involved in judicial appointments. What is really important is the adverse impact it
has on very credibility of the system. If the say of the executive or political magnets was to
prevail over the opinion of the Chief Justice in recommending names of judges, the
independence of judiciary may certainly be affected.

Law Commission of India in its Report No. 245 also recommended the need for filling vacancies
in the judiciary. It says

“data obtained from High Courts indicates that the judicial system is severely
backlogged, and is also not being able to keep pace with current filings, thus
exacerbating the problem of backlogs. The system requires a massive influx of judicial
resources in order to dispose of the backlog and keep pace with current filings. The data
indicates the need for taking urgent measures for increasing judge strength in order to
ensure timely justice and facilitate access to justice for all sections of society.”

For clearing pending cases, an adequate number of judges must be appointed and once the posts
of judicial officers fall vacant, there should not be any unreasonable delay in appointments.

23 | P a g e
Rather, they should be filled on a priority basis. But in the Indian judicial system, there are a
number of vacancies existing, which ultimately affects the efficiency of rendering justice. But
filling the vacancy of judges is not the sole responsibility of the Government. The judiciary also
plays a crucial role in the appointment of judges. The Supreme Court while interpreting Arts.
124 and 217 of the Constitution of India in its judgment in Advocates on Record Association v.
Union of India and others 40 has held that a proposal for the appointment of a judge in the
Supreme Court must be initiated by the Chief Justice of India and in the case of a High Court by
its Chief Justice. In case of a transfer of a judge from one High Court to another, the proposal has
to be initiated by the Chief Justice of India. Therefore, the judiciary is also responsible for not
performing its duty of proposing the names of judges for appointment to the government, which
in turn would be sent to the President of India for approval. Moreover, according to norms, the
process of filling up of a vacancy should start 6 months before the actual date of retirement of a
Judge. But this is hardly followed. Both judiciary and government should cooperate to overcome
the issue of vacancies.

INADEQUATE NUMBER OF COURTS

Since there are many vacant posts of judges in the courts, there is an urgent need to fill up the
vacancies so as to reduce the burden on the Courts to dispose of the cases. The existing number
of courts are not adequate and an increased number of judges would require more
courtrooms. This is another matter of concern which prompts pendency of cases. Insufficient
number of courts is considered to be major mishap for the justice delivery system. Law
Commission of India in its Report No. 245 manages the foundation of extra courts to meet the
ends of justice and expedient disposal of matters. Similarly, Hon’ble Supreme Court in the
matter of Imtiyaz Ahmad v. Province of U.P41 has noted this issues as a significant one.

JUDGE-CITIZEN RATIO

Another important reason for the delay is the shortage of judges with regard to the population of
the country. Since 1987, the population of the country has considerably increased and the judge-
citizen ratio currently is around 10 million to 1. The sanctioned strength of High Court Judges is

40
Advocates on Record Association v Union of India, (2005) 6 SCC 344.
41
Imtiyaz Ahmad v province of UP, AIR SC 2012 642.

24 | P a g e
1079, of which 397 seats (around 37%) are vacant in 25 High Courts in India as of December
2019. There is no doubt that the proportion of judges to the number of people is quite low when
compare to other countries of the world. At present, there are 13.05 judges per 1 million people
in India, as against Australia 58 per million, Canada's 75, the United Kingdom 100 and the
United States of America 130 per million. It was also suggested by the 127th Law Commission
Report, 1988, that the judge-population ratio be increased from 10 judges per million people (at
that time) to 50 judges per million people within a period of five years. The Supreme Court in All
India Judges 'Association Case42 has directed the State and Central Governments to increase the
strength of judges five times over the next five years. Due to this low judge-population ratio, the
courts lack the requisite strength of judges to decide the pending cases. But the Government has
neither taken any interest nor any step to implement the said recommendation. The view of the
Government is that raising the strength of the judges must be set on the basis of pendency of
cases and the average rate of disposal of cases, and not simply on the basis of population.

ENDLESS AMENDMENTS OF STATUTES

Endless amendments to legislations is another reason behind delay. Most of the Indian laws are
amended from time and again. As a result, it takes time to understand and explain the new
provisions of law. It kills the valuable time of the Court. These endless amendments make the
legal system slow and confusing. Our propensity for enacting laws is really a problem. For
example, The Income Tax Ac has amended over 4000 times since it came into force in 1961.
According to Late Mr. Nani A. Palkhivala, the tragedy of India is the tragedy of wastage of
national time, energy and manpower for grappling with torrential countless amendments.

LACK OF ACCOUNTABILITY OF JUDGES

In India, the judiciary is a separate and independent organ of the State. The Legislature and the
Executive are not allowed by the Constitution to interfere in the functioning of the judiciary. The
functioning of the judiciary is independent. But it does not mean that it is not accountable to
anyone. In a democracy, the power lies with the people i.e. we the people of India. The judiciary
must concern with this fact while functioning. The concept of judicial accountability has three

42
All India Judges’ Association & Ors. v Union of India, (2002) 4 SCC 247.

25 | P a g e
stages. First, each member of the judiciary is accountable to himself. He has to convince himself
that what he has done is morally and more importantly legally correct and his decision is not
dictated by any extraneous consideration. The second stage of accountability is the
accountability of the individual to the institution. The individual judge has to ensure that what he
has done would not bring disrespect or disrepute to the institution. On the contrary, even if it
may not increase the respectability and credibility of the institution, it shall not diminish it. The
institution cannot be segregated from the individual. The credibility or lack of credibility would
depend on the individuals. The third stage is the most important one. It is the accountability of
the institution to the society. Judges are accountable to the society and their accountability must
be judged from their conscience and oath to their office, i.e., they have to defend and uphold the
Constitution and the laws without fear and favor. Any criticism about the judicial system or
judges, which hampers the administration of justice or erodes the faith on the system and brings
it to ridicule must be prevented. Every citizen has a responsibility to ensure that the line between
measured criticism of judgments and denigration of judges is not traversed. The Indian system of
accountability is based on the basic premise that human beings are not infallible and judges are
not exception to that, and if the error is not ill-motivated, then the same can be corrected by the
exercise of appellate or review powers and warrants no personal accountability of the judges.
However, the judges are accountable for their conduct in public or private life if such conduct
amounts to 'misbehavior' or brings disrepute or dishonor to the judiciary.

The Woolf Report of 1996, emphasized that the judiciary be made accountable for their
functioning by generating accurate judicial statistics revised on daily basis. It was observed by
the Committee that the Statistics Report pertaining to the functioning of judges and flow of such
information, ultimately makes judges more accountable to the judiciary. It was also suggested
that it is more important and useful to tackle the arrears, rather than increasing financial and
human resources. But these suggestions remain on paper and have never been put into practice.

The Malimath Committee suggested that judicial credibility is enhanced when it is transparent
and accountable. The conduct of judge is also responsible for delay in justice. The Committee
suggested that it is necessary to regulate the functioning of the judges with respect to their duties
by conferring power on the Chief Justice in this respect and also by making judges accountable
by establishing a National Judicial Commission. The Chief Justice should be conferred with the

26 | P a g e
following powers to look into the grievance and take effective measures: (i) Advising the Judge
Suitable, (ii) Disabling the Judge from hearing a particular class of case or cases in which a
particular lawyer appears, (iii) Withdraw the judicial work from judge for a specified period, (iv)
Censure the Judge, (v) Advise the Judge to seek a transfer, (vi) Advise the Judge to seek
voluntary retirement.

MISUSE OF PUBLIC INTEREST LITIGATIONS (PIL)

The traditional rule is that right to move the courts is only available to those whose fundamental
rights are infringed. The power vested in the Supreme Court can only be exercised for the
enforcement of fundamental rights. But this traditional rule of locus standi that a petition under
Art. 32 can only be filed by a person whose fundamental right is infringed has now been
considerably relaxed by the Supreme Court. The Court now permits 'public spirited citizens' for
the enforcement of constitutional or other legal rights of any person or group of persons who
because of their poverty or socially or economically disadvantaged position are unable to
approach the Court for relief.

In the case of A.B.S.K Sangh (Rly) v. Union of India43, the Supreme Court held that the Akhil
Bhartiya Sarkari Karmachari Sangh (Railway), though an unregistered association could
maintain a writ petition under Art. 32 for the redressal of a common grievance. Thus, Art. 32 is
not confined to protect only individual's fundamental rights, but also to do justice wherever the
society has an interest in it. Krishna Iyer, J. observed:

“Access to justice through ‘Class actions’, ‘public interest litigation’ and ‘representative
proceeding’ is the present constitutional jurisprudence.”

Nowadays, courts are overwhelmed with fatuous Public Interest Litigations. Fatuous PIL isn't
associated with the general public interest. Under the pretense of Public Interest Litigation, if the
petitioner wants to serve his own good, it causes delay in choosing numerous imperative cases.
Therefore, Justice Pandian warned against abuse of Public Interest Litigation in a landmark

43
A.B.S.K. Sangh (Rly) v Union of India, AIR 1981 SC 298.

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judgment of Janata Dal v. H. S. Chowdhari44. It was held that, Public Interest Litigation should
not be petitioned for individual and political purposes.

MISUSE OF WRIT PETITIONS

With the increase in the socio-economic and welfare activities of the State and growing
awareness of the citizen as to his rights, Arts. 32 and 226 of the Indian Constitution assumed
singular importance in our system of administration of justice. It empowers the Supreme Court
and High Courts throughout the territories, in relation to which it exercises jurisdiction, to issue
to any person or authority directions or orders or writs including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto, and certiorari, whichever is appropriate.

Writ Petitions are extra-ordinary constitutional remedies under the Indian Constitution by which
the Judiciary reviews the executive and legislative acts. They don't constitute the normal judicial
work of adjudicating disputes amongst citizens or between citizens and governments etc. The
situation has become increasingly serious even for the extraordinary remedies of writ petitions.
Priorities have to be set even amongst the extraordinary remedies. Further, only the temporary,
urgent, ad interim, or interim relief is ordered in writ petitions and the real and main issues are
relegated to the background and may not be addressed for want of time. More often than not the
writ petitions are filed to force the executive to do their duty and the Courts have to waste their
precious time in giving direction to the executive to perform their constitutional duty due to
which the disposal rate of cases is reduced substantially.

Very often, a number of writ petitions are filed involving not only the same point of law but also
the same or similar facts. The grouping of these petitions by the Registry will help in the quick
and satisfactory disposal of cases. The co-operation of the various government departments
would be required for the expeditious disposal of writ cases.

INADEQUATE ARRANGEMENTS IN HEARING CASES

There is an absence of legitimate mechanism to monitor, track and cluster cases for hearing,
which results in waste of time of the court and leads to the pendency of cases.

44
Janata Dal v H.S. Chowdhari, AIR 1981 SC 298.

28 | P a g e
 TRANSFER OF JUDGES

Rotation and transfer of judges mean that the same judge who heard testimony may not decide
the dispute, thereby taking away much of his incentive to push forward the proceedings to
judgment and thus seriously impeding the process of continuous trial. The new judge may have
to repeat some of the procedural requirements already fulfilled. Midterm transfer of judges often
causes a delay in the disposal of cases. When the judges are transferred, the new Judge may at
times order for new trial (de novo) altogether which postpones the procedures. This is another
factor which obstructs timely disposal of matters.

HUGE NUMBER OF APPEALS

When a large number of appeals are brought before the Courts they find it difficult to invest their
time and energy in the disposal of important matters and as a result have to invest their time in
the disposal of these large numbers appeals.

PRE-TRIAL DELAYS

DELAY IN INVESTIGATION

The object of criminal law is to protect the society from crimes by punishing the offenders.
Justice and fair play requires that no one can be punished without a fair trial. A person might be
under a thick cloud of suspicion of guilt, he might even be caught red-handed and yet he is not to
be punished unless and until he is tried and adjudged guilty by a competent Court45. Investigation
is the first step on the basis of which prosecution files a case against the accused in the court
which tries the accused for alleged offence. It includes all proceedings under Criminal Procedure
Code for the collection of evidence by a police officer or by any person (other than a Magistrate)
who is authorized by a Magistrate in this behalf, as provided by §2(h) of the Code of Criminal
Procedure.

DELAY IN SERVICE OF SUMMONS

Summons is a process to compel the attendance of a defendant. Order V provides that “when a
suit has been duly instituted, a summons may be issued to the defendant to appear and answer the
45
R.V. KELKAR, CRIMINAL PROCEDURE CODE (4th ed. 2003) at p.30.

29 | P a g e
claim.” Generally, people try to evade the summons. Consequently, it delays the speedy trial.
The Code provides for two kinds of service of summons- personal service and substituted
service. In case the defendant tries to avoid the service of summons, the court must avail Rule 20
of Order V which deals with substituted service. Substituted Service serves a best mode to avoid
the delay in service of summons. 46

According to Britannica Encyclopaedia,

“Summons, also called Citation, in law, is a document issued by a court ordering a

specific person to appear at a specific time for some specific purpose. It is issued either
directly to the person or to a law officer who must carry out the instructions. Often the
purpose of a citation or summons is to require a person to answer charges or a complaint
filed against him. It may also be used simply to notify a person that he has an interest in
the proceedings at hand, which it would be to his advantage to attend.” 47

§27 and Order V of the Code of Civil Procedure, 1908 deal with ‘Service of Summons’ to the
defendant/Respondent. Order 16 deals with summoning and attendance of witnesses. Order V of
CPC contains Rules 1 to 30. These provisions deal with the issue and service of summons. Under
the Civil Procedure Code, 1908, there are different modes of effecting service of summons to the
defendant. It is needless to say that non-service of summons and notices in a civil suit is a great
hurdle for speedy disposal of a civil suits.48

There are several reasons for non-service of summons to defendant in time. Furnishing correct
address of the defendant in the plaint would be helpful to avoid delay in service of summons.
Recently, the Courts have expanded the scope of service of summons by issuance through
information technology. We often come across situations in civil cases where the defendant takes

46
Pranav Tripathi & Tripti Tripathi, Delay Defeats Justice: Issue of Large Pendency of Cases in Indian Courts, 2
INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES, 68, 68 – 83.
47
BRITANNICA ENYCLOPEDIA, https://www.britannica.com/topic/summons (last visited April 8, 2020).
48
Y. Srinivasa Rao, Service of Summons in Civil Cases, ARTICLES ON LAW (July 15, 2020),
https://articlesonlaw.wordpress.com/2018/07/15/service-of-summons-in-civil-cases/.

30 | P a g e
the plea that summons was not duly served to him. Similarly, in general, courts often use the
method of substitute of service of summons by way of paper publication.49

In this computer era, usage of mobiles and computers have been increasing day by day. So many
Apps are being introduced day by day and social media has now become a powerful tool even
for common people. Within a fraction of seconds, messages are being communicated among the
people. E-courts have been playing a vital role in the judiciary and efforts are being undertaken
for widespread computerization in the courts in the country. The Hon’ble Supreme Court
expanded the scope of electronic media in judiciary. But, information technology and notices are
not being properly used by all the courts in service of summons because the court system does
not have the facility to effect the service through electronic mode. Provisions under Part X of the
Code of Civil Procedure, 1908 (5 of 1908) and Order V, Rule 9 of the Civil Procedure Code,
1908 enables the High Court to make rules and regulations in this regard. The Delhi High Court
has also made rules regarding the service of legal notices through email by the virtue of above
legal provisions.50

Strict compliance with the procedure under Order V of CPC is one of the remedies for proper
service of summons. Order V, Rule 19-A CPC is introduced in order to avoid delay in actual
service, the service of summons, through registered A.D. post was inserted. 51

NON- EXAMINATION OF PROCESS SERVERS

Process server is a person authorized by law or by a court to formally deliver process such as
summonses, complaints, subpoenas, writs and other court to a defendant or respondent. 52

The process server usually serves the documents in accordance with the legislation in the area of
service. This may mean handing the documents to the defendant personally or sub-serving to
someone in the same household or business. Once the documents are delivered, the process
server must provide proof that the papers were served. This is done through a document call an

49
Id.
50
Supra note 46.
51
Supra note 46.
52 US LEGAL, https://definitions.uslegal.com/p/process-server/ (last visited, April 8, 2020).

31 | P a g e
Affidavit of Service, also called a Proof of Service, which must be notarized and given to the
party who requested service.53

The role of process servers is also very significant to avoid the delay of summons. Sometimes
due to their negligence and lethargy, they fail to serve the summons in time. Therefore, there
should be proper supervision of process-servers.54

DELAY IN FILING OF WRITTEN SUBMISSIONS AND DOCUMENTS

Order VIII CPC provides that “defendant should file the Written Statement within 30 days from
the date of service of summons on him.” 55 When the notice has been issued to the defendant, he
is required to appear on the date mentioned in the notice. Before such date, the defendant is
required to file his "written statement", i.e. his defense against the allegation raised by plaintiff,
within 30 days from date of service of notice, or within such time as given by court. The written
statement should specifically deny the allegations, which the defendant thinks are false. Any
allegation not specifically denied is deemed to be admitted. The written statement should also
contain verification from the Defendant, stating that, the contents of written statement are true
and correct. The time period of 30 days, for filing a Written Statement, can be extended to 90
days after seeking permission of the court.

But this provision is not followed in true letter and spirit. Defendants tend to prolong the matter
by not filing the written statement on time. As a result, delay in filing the written statement
contributes to pendency of cases.56

DELAY IN FRAMING ISSUES/CHARGES

Delay in framing issues (in civil matters) and charges (in criminal matters) also pave the way for
delay. Issue means a point in question; an important subject of debate, disagreement. Issues arise
when a material proposition of fact or law is affirmed by one party and denied by the other.
Material propositions are those propositions of law or fact which a plaintiff most allege in order

53
Id.
54
Supra note 45.
55
Id.
56
Id.

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to show a right to sue or a defendant must allege in order to constitute his defence, as according
to Rules 1-3 of Order XIV. The machinery of a civil court is set in motion by the presentation of
a plaint, which is the first stage of trial. The second stage is the filing of the written statement by
the defendant. The third important stage in the suit is the framing and settlement of issues and the
day on which such issues are framed is the first hearing of the suit. 57 But due to some reason or
the other, the Court takes too much time in framing issues which ultimately results in delay in the
final disposal of the suit. Much time is consumed at this stage for framing of charge against the
accused. It is not possible to frame charge if all the accused persons are not present on a day
fixed for the charge. Many accused persons take this opportunity by remaining absent voluntarily
on the date of charge by producing fictitious Medical Certificate or adjournment is prayed for
several days, for days together or even for years together. As a result of which, much time is
consumed and delay is caused even at the stage of framing of charge.

Under the present stage of civilization, it has been universally accepted as a human value that a
person accused of any offence should not be punished unless he has been given a fair trial and
his guilt has been proved beyond reasonable doubt in such trial. The notion of fair trial, like all
other concepts incorporating fairness or reasonableness, cannot be explained in absolute terms.
Fairness is a relative concept and therefore, fairness in a criminal trial could be measured only in
relation to the gravity of the accusation, the time and resources which the society can reasonably
afford to spend, the quality of available resources, the prevailing social values etc. One basic
requirement of a fair trial in criminal cases is to give precise information to the accused as to the
accusation against him. This is vitally important to the accused in the preparation of his defense.
Charges serve the purpose of notice or intimation to the accused, drawn up according to the
specific language of law, giving clear and unambiguous or precise notice of the nature of
accusation that the accused is called upon to meet in the course of trial. 58 So, unless charges are
framed, the trial cannot begin and more often than not, the courts take too much time in framing
charges either due to delay in submitting charge sheet by the investigating police officer or due
to some other reason and the same result into delay in the commencement of the trial. The living

57
Sangram Singh v. Election Tribunal, AIR 1955 SC 425.
58
Supra note 45 at p.320.

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example of this can be found in the Uphaar Fire Tragedy Case59 wherein CBI filed charge sheet
against the accused in 1997 but the Court framed charges in 2001.

DELAY DURING TRIAL-

Delay is also caused during the trial. Trial means the process undertaken for the judicial
determination as to guilt or innocence of any person accused or any offence and such trial may
be deemed to begin at the state at which the court takes cognizance of an offence. Delay during
trial may be due to the following:

ADJOURNMENT FOR PETTY REASONS

One of the main reason that have resulted into pending cases is the adjournments granted by the
court on flimsy grounds. §309 of the Code of Criminal Procedure and Rule 1, Order XVII of the
Civil Procedure Code deal with adjournment and the power of the Court to postpone the hearing.
Though, the Code of Criminal Procedure does not talk of the maximum number of adjournments
which can be granted, the Civil Procedure Code limits the same to three. Under the Code of
Criminal Procedure, the postponement or adjournment can be for such time as the court
considers reasonable. What is reasonable time in a given case will depend upon the facts and
circumstances of the case. The discretion to postpone or adjourn the case is to be exercised
judicially and not arbitrarily.

NON-ATTENDANCE OF WITNESSES-

Non-attendance of witnesses also plays a part in the delay. The parties to the suit have to present
in court, a list of witnesses whom they propose to call either to give evidence or to produce
documents and to obtain summons for their attendance in the court. Such a list must be filed on
or before such date as the court may fix but not later than fifteen days after the issues are framed,
as according to Order XIV Rule 1 of the Civil Procedure Code. The object underlying this
provision is to give notice to the opposite party about the witnesses which his adversary is to
examine in the case so that he could be in a position to know the nature of evidence he has to
meet. Delay occurs: firstly, when the party or parties make unreasonable delay in presenting the
list of witnesses and secondly, when the witnesses fail to comply with the summons and refuse to
59
V.C Shukla v State through CBI, 1980 Supp SCC 92: 1980 SCC (Cri) 695.

34 | P a g e
depose or do not attend court proceedings. The court has power, under §32 of the CPC, to
enforce the attendance of any person to whom a summons has been issued and for that purpose,
may

i. issue a warrant for his arrest

ii. attach and sell his property
iii. impose a fine upon him not exceeding five thousand rupees; and order him to furnish
security for his appearance and default commit him to the civil prison.

ABSENCE OF LAWYERS-

Absence of lawyers on the scheduled date of hearing also adds to the cases getting prolonged.
The lawyer of a party may remain absent from the hearing of the case on one pretext or the other
which are within the provisions of law like the death of his relative, or ill-health, but on the
hindsight his absence may be due to non-preparation of the case or his engagement in another
Court. In such a situation, the judge is constrained to adjourn the case. The code of Civil
Procedure and Code of Criminal Procedure are based on a general principle that, as far as
possible, no proceeding in a court of law should be conducted to the detriment of any party in his
absence. Civil Procedure Code requires the parties to attend the court in person or by their
pleaders on the day fixed in the summons for the defendant to appear, as according to Order IX
Rule 1, CPC.

LENGTHY ORAL ARGUMENT-

Oral arguments, though a necessity for submissions before the Court, have been found to be
unwieldy and time-consuming. Both Criminal Procedure Code and Civil Procedure Code
discourage lengthy oral arguments. Any party to a proceeding may, as soon as may be after the
closure of his evidence, address concise oral arguments, and may, before he concludes the oral
arguments, if any, submit a memorandum of to the court setting forth concisely the arguments in
support of his case (§314(1), CrPC). The court may, if it is of the opinion that the oral arguments
are not concise or relevant, regulate such arguments (§314(2), CrPC). A court may permit a party
or his pleader to argue a case orally. For such oral arguments, it is open to the court to fix time
limit, as it things fit (Order XVI, Rule 3A, 3D, CPC).

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 NON-APPEARANCE OF PARTIES

Appearance and non-appearance of parties during trial before the court is a crucial issue to
resolve civil dispute. Because, mere appearance or non- appearance can determine the ultimate
result of a civil litigation. The provisions of the Code of Civil Procedure (CPC), 1908 are based
on a general principle that, as far as possible, no proceeding in a court of law should be
conducted to the detriment of any party in his/her absence. Also, it is the duty of the concern
party to be aware of his rights, show vigilance towards the court and establish his/her claim by
taking proper measures. According to the provisions of CPC, if the plaintiff does not appear on
the day of hearing the suit will be dismissed, as according to Order IX Rule 3. Consequently, the
plaintiff may bring a new suit or court may restore the suit, as according to Order IX Rule 4.

EFFECT OF NON-APPEARANCE OF THE PLAINTIFF

On the first day of a trial, if it is found that the summons which need to be served upon the
defendant has not been served properly in consequence of the failure of the plaintiff to pay the
court-fee or postal charges payable for such service, the court may dismiss the suit for the default
of the plaintiff.

Again, on the date of peremptory hearing, if the plaintiff does not show up but the
defendant appears before the court, the suit will be dismissed accordingly unless the defendant
admits the whole claim or any part of it. In the latter case, the court shall pass a decree against
the defendant upon such admission, and, shall dismiss the part of the claim not admitted.

EFFECT OF NON-APPEARANCE OF THE DEFENDANT

Similarly, after the service of summons, the defendant has to appear before the court in person or
represented by a pleader on such date stipulated in the summons. If the defendant is not ready to
defend his/her case at that day, he/she may take further time to answer after getting permission
from the court. If the party does not appear in person or through his/her lawyer, the suit will be
determined finally by the court at that day, only for non-appearance of the defendant and the
plaintiff will get an ex parte decree from the court.

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 CONSEQUENCES OF NON-APPEARANCE OF BOTH THE PARTIES

If both the contesting parties (plaintiff and defendant) remain absent from the hearing on the date
of peremptory or final hearing, the suit may be dismissed by the court. In that case, both the
parties have the same remedy that a claimant has against an order of dismissal for non-
appearance.

Finally, non-appearance of parties in a civil litigation has a great impact upon the whole
proceedings of the case. It is the duty of both the parties to appear before the learned court at
appropriate time and to cooperate with the court to settle the dispute effectively. Therefore, non-
appearance of parties on the day fixed for hearing is also a prominent cause for delay in civil
proceedings.

DELAY CAUSED DUE TO ABSCONDING ACCUSED

Absconding of the sole accused or where there is large number of accused in a criminal case and
if some of them are absent or no steps are taken to trace them for causing their attendance in the
Court. This is one of the strongest causes in delaying the trial in a criminal case. Sometimes, a
proceeding under §446 of the Code of Criminal Procedure, 1973 is started against the surety of
the accused but no fruitful result is obtained. Hence, a large number of cases are pending for
years together for execution of warrant and return of the accused.

DELAY IN RECODING OF EVIDENCE

The Court is required to record the evidence of the parties by way of affidavit by following a
provisions of Order-18, Rules 4 and 5 of the Code of Civil Procedure. The Court would also
follow the provisions of Order- 19 while recording evidence of the parties by way of affidavit.

The object of amending Order-18 Rule-4 of the Code of Civil Procedure is to subserve the larger
purpose of cutting down in the disposal time of recording evidence, thereby reducing the period
of disposal of the cases by dispensing with the lengthy procedure of the Court recording

37 | P a g e
evidence of every witness produced before it. The above principles have been laid down in a
case of Shamrao Vishnu Kunjir V/s. Suresh Vishnu Kunjir and others60.

In M/s Bagai Constructions Vs. M/s Gupta Building Material 61, Supreme Court held that

“it is desirable that the recording of evidence should be continuous and followed by
arguments and decision thereon within a reasonable time.”

EXHIBITING THE DOCUMENTS AND STAGE OF TAKING OBJECTIONS AND DECIDING

OBJECTIONS

It is general experience that many a times objections regarding admissibility of documents,

exhibiting the documents and mode of proof are taken. After a decision on the same is taken, it
may be challenged on appeal, which further contributes to delay. Therefore, in order to avoid
such delays, our own High Court has laid down guidelines. In the case of Mr.Hemendra Rasiklal
Ghia. vs Subodh Mody62, the Bench observed:

(i) Objection to the document sought to be produced relating to the deficiency of stamp duty
must be taken when the document is tendered in evidence and such objection must be
judicially determined before it is marked as exhibit;

(ii) Objection relating to the proof of the document of which admissibility is not in dispute must
be taken and judicially determined when it is marked as exhibit;

(iii) Objection to the document which in itself is inadmissible in evidence can be at any stage of
the suit admitted, reserving decision on question until final judgment in the case.

The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence
filed under XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until
final judgment as held in Ameer Trading Corpn. Ltd. v. Shapoorji63.

NON-RECEIPT OF THE DEATH REPORT OF AN ACCUSED OR WITNESS

60
Shamrao Vishnu Kunjir v Suresh Vishnu Kunjir and others, 2005 (3) Mh. L. J. 1071.
61
M/s Bagai Constructions v M/s Gupta Building Material, AIR 2013 SC 1849.
62
Mr.Hemendra Rasiklal Ghia. v Subodh Mody, Writ petition no. 623 of 2005.
63
Ameer Trading Corpn. Ltd. v. Shapoorji, Special Leave Petition (civil) No: 13858 of 2003.

38 | P a g e
Sometimes it is seen that the accused or witness dies at some other place (not at his residence or
house) and it becomes difficult for the court to get death report of the accused or the witness,
hence, causing delays.

Surety has no Control to Produce the Accused- It is also seen in most of the cases that a surety
has no control on the accused and his attempts to produce the accused in court can cause a delay.

NON-ADHERENCE TO ORDER X

Order X of the CPC deals with examination of parties by the court. Law Commission of India in
its Seventy Seventh Report says that

"in order to make effective use of provisions of Order X, it is essential that trial judge
should read in advance the pleadings of the parties and should know the case of each
party only then he can put questions and frame issues properly."

The word “cross examination” plays a predominant role in Courts. In a trial of Sessions case, or
a Civil Case including the Motor Accidents Claims Cases, the cross examination of a witness is
considered as the major element in a trial. The real test for a trial Judge is that of handling the
case during cross examination of a witness. The procedure for recording the evidence of a
witness in chief in respect of civil cases was made easier by virtue of the amendment to the Code
of Civil Procedure. After amendment in the year 2002, the scope of recording the evidence in
chief was permitted to be done by way of affidavit. Hence the long-time consumption of Civil
Courts was considerably reduced by virtue of filing of proof affidavit. However, this has enabled
the deponent to elaborate his case to the maximum. Thus the affidavit runs to several pages,
which is evident in many cases.

As a matter of right, the defendant/respondent takes up each and every line of the affidavit and
makes his cross examination at length. It has also become the order of the day that the evidence
during cross examination is being done in piece meal. The major issue revolving around this kind
of practice of piece meal cross is that of the repetition of the same questions at the cost of
Court’s time. Hence the Presiding Officer of the Court shall have to be very vigilant and should
be capable. It is imperative that the readers verify the contents of the article with other relevant
and authorized sources of information.

39 | P a g e
The responsibility is equally vested with the deponent and his counsel to alert the Court during
such instance. This process consumes extra time during cross examination resulting in delay.
While piece meal cross examinations are one of the reasons for delay in trial, the inability or ill
health of the deponent to retain himself/herself for long hours makes him/her difficult resulting
in pleading adjournment at a particular stage of cross examination again reflects in piece meal
trial. Again the challenge is posed on the Presiding Officer to identify whether the deponent is
really ill or is he attempting to drag on the issue.

Thus, non-compliance with the provisions of Order X prolongs the matter.

APPLICATION AT ANY STAGE

There is a practice among the counsels to file application at any stage of the proceedings of the
case. They may do so in the guise of submitting some documents or making some amendments
in the pleadings which, what they call, vital for the consideration of the court before disposal of
the case. In this regard the existing laws also help them. For example, there is a provision in the
Code of Civil Procedure which provides that the court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms as may be just, and
all such amendments shall be made as may be necessary for the purpose of determining the real
questions in controversy between the parties, as according to Order VI Rule 17. By way of
amendment, a rider has been imposed on the amendment of pleadings which provides that no
application for amendment shall be allowed after the trial as commenced, unless the court comes
to the conclusion that in spite of diligence, the party could not have raised the matter before the
commencement of trial. But the effect remains the same because all the counsels who want
amendment in the pleadings take the plea that in spite of due diligence they failed to raise the
matter before the commencement of the trial. But as a matter of fact, most of the time they do so
for buying time foreseeing that they might lose the case. Such a practice causes substantial delay
in the final disposal of the cases because the filing of applications and new documents have to go
through the dilatory process of filing, notice to the opposite party, arguments, order, appeal, etc.
64

64
G. M. Dinkar, A Note On Laws Delay, 23(l) Ind. Bar Rev. 75, 75 (1996).

40 | P a g e
 INTERLOCUTORY APPLICATIONS

Simultaneously with institution of civil litigation, the process of filing interlocutory applications
commences, which continues till the judgment is pronounced. A lot of judicial time is spent on
hearing and disposal of such applications. The Courts need to discourage, frivolous and
unnecessary applications by dismissing them with exemplary costs. As for as possible, such
applications should be heard and disposed of at the very first hearing so that an unscrupulous
litigant is not able to gain time and cause delay, which is the primary aim behind filing many
such applications.

ORDER XX

We should inculcate the art of writing short and precise judgment to save precious time. While
writing judgments we should state the facts in precise. We should write a terse and precise
judgment so as to enable Appellate Court to understand the crux of the matter, our decision
thereon and reasons therefore. We should avoid complex sentence which create confusion in the
mind of reader. We should also avoid writing lengthy judgments.

As per Order XX of CPC we have to pronounce the judgment within 30 days from the date on
which hearing of the case was concluded. Where, it is not practicable to pronounce the judgment
within 30 days then after recording reasons another day can be fixed. However, such period
should not beyond 60 days from the date on which the case was heard.

DELAY IN DELIVERY OF JUDGMENT DUE TO UNNECESSARY ADJOURNMENTS

Frequent adjournments slow down the justice delivery system in civil matters. Law Commission
of India in its Seventy Seventh Report also mentions frequent adjournments as an important
cause of delay, despite the Code of Civil Procedure providing that no such adjournment shall be
granted more than three times to a party during hearing of the suit.65

65 Supra note 46.

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Court can postpone the proceeding to a future date for some valid reason such as failure of a
party or witness to appear because of serious illness, getting additional documents, etc. The party
may request for an adjournment or the court may adjourn the proceeding on its own as well.

The process for Adjournments has been defined in Order XVII of Civil Procedure Code, which
states:

“Court may grant time and adjourn hearing - (1) The Court may, if sufficient cause is
shown, at any stage of the suit grant time to the parties or to any of them, and may from
time to time adjourn the hearing of the suit.”

This was amended in 1999, to allow either only parties three times for requesting the
adjournment. Post the amendment it was stated that:

“Court may grant time and adjourn hearing

(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the
parties or to any of them, and may from time to time adjourn the hearing of the suit for
reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party
during hearing of the suit.]”

However, this rule is not being followed properly in all courts in India.

Albeit, it would be wrong to say that the Judiciary has turned a complete blind eye to this
problem. To curb the practice of repeated adjournments in cases, the Supreme Court set up a pre-
condition that the respondents pay INR 10,000 for every adjournment. This was laid down in a
case involving an eighty-nine-year-old litigant. This bench was headed by Justice Madan B

42 | P a g e
Lokur, who expressed regret over the way the trial court was liberal in granting adjournments
even though the property dispute involved a senior citizen woman fighting for over a decade. 66

DELAYED PRONOUNCEMENT OF JUDGMENT

Justice should not only be done but should also appear to have been done. Similarly, whereas
justice delayed is justice denied, justice withheld is even worse than that. The inordinate,
unexplained and negligent delay in pronouncing the judgment is alleged to have actually
negative the right of appeal conferred upon the convicts under Criminal Procedure Code. A right
of appeal to meet the requirement of Art. 21 of the Constitution cannot be made a fraught by
protracting the pronouncement of the judgment for reasons which are not attributable either to
the litigant or to the State or to the legal profession.67

DELAY DURING THE APPELLATE PROCEEDINGS

Human judgment is not infallible. Despite all the provisions for ensuring a fair trial and a just
decision, mistakes are possible and errors cannot be ruled out. The Code therefore, provides for
“appeals” and “revision” and thereby enables the superior Court to review and correct the
decisions of the Lower Courts. Apart from it being a corrective device, review procedure serves
another important purpose. The very fact that the decision of the Lower Courts is duly
scrutinized by a superior court in “appeal” or “revision” gives satisfaction to the party aggrieved
by the decision. It assures the aggrieved party that all reasonable efforts have been made to reach
a just decision free from plausible errors, prejudices and mistakes. Although this review
procedure through “appeal or revision” is imperative for correctional justice but too much
recourse to such procedure is causing another problem, that is, delay in final disposal of cases.
The reason is that the superior Courts are busy in deciding appeals leaving the regular matters at
bay. Further, the Superior Courts take too much time in deciding appeals which is partly due
their workload and mostly due to delay in getting the files from the trial court whose decision is
challenged. If the multiplicity of appeals is to be reduced and higher courts are to function
burden less and discharge effective judicial functioning in the direction of progressive evolution

66
Kanu Sarda, Supreme Court Sets Conditions to Curb Repeated Adjournments, THE NEW INDIAN EXPRESS (June
17, 2008, 12:41AM), https://www.newindianexpress.com/nation/2018/jun/17/supreme-court-sets-condition-to-curb-
repeated-adjournments-1829191.html.
67
Sukhpal Singh V. Kalyan Singh, AIR 1983 SC 146.

43 | P a g e
of law, judicial officers at the district level have to discharge their functions diligently so as to
avoid shortcomings in their decision.

DELAY DURING EXECUTION PROCEEDINGS

The duty of a Court is not over by the mere pronouncement of a decree or order. The Court has
to see that fruits of the decree or order reach to the person in favour of whom the decision has
been given. But pronouncements of the Courts are not backed by administrative
authority/machinery of the State for effective execution. This keeps the Courts busy in ordering
the administrative authorities to carry out the execution of the Court’s order. Delay is also caused
when a decree is sent for execution to another court because such a court is required to supply to
the executing court a copy of the decree along with some other certificates, as according to Order
XXI Rule 6. But such documents are not provided in time to such executing Courts which
thereby cause delay in the execution of the decree. Further there is a provision for stay of
execution of the decision so as to enable the person against whom the decision has been given to
appeal against the decision. These factors result in the delay of final disposal of cases, thus
contributing to the immense backlog of cases.

PRIMARY FEATURES OF ’99 & ’02 AMENDMENTS TO THE CIVIL

PROCEDURE CODE

Sections and Orders Definition

Institution of suits (26) A subsection to this Section was added by the

1999 Amendment Act which made it
compulsory that every fact referred to in the
plaint to be proved by an affidavit. Hence, the
plaint now has to be presented along with an
affidavit at the institution of the suit.

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Summons to the defendant (27)
Settlement of dispute outside the Court This Section was not there originally and was
(89)
No further appeal in certain cases (100A)
No second Appeal in certain cases (102)
Issuing summons to the defendant to appear and
answer the claim in the suit. Prior to the
amendment in 1999, there was no time period for
serving a summons on the defendant. The
amendment prescribed a time-limit of 30 days.
The section now provides that summons has to
be issued to the defendant to appear and answer
the claim within 30 days from the date of the
institution of the suit.
added by the amendment of 2002 to include
settlement of disputes outside the Court by way
of alternative dispute resolution methods in the
CPC. Hence, the cases referred to alternative
dispute resolution could be settled quickly and
the defendants in this way could be spared from
the injury of a long time waiting for the disposal
of matters in the ordinary run.
This Section was substituted by a new Section
by the Amendment Act of 2002. §100A states
that there shall be no further appeal in case an
appeal has arisen out of an original or appellate
decree or order and is heard and decided by a
single Judge of the High Court.
This section was amended to widen the scope of
§102. It now provides that there will be no
second appeal from any decree in cases where
the subject matter of the original suit for
recovery of money is up to INR 25,000. Prior to
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Order V – issue and service of summons
Order VI – Pleadings generally
amendment, §102 was confined to the suit of
which the cognizance can be taken by the Small
Causes Court and the amount was limited to INR
3000.
Under this, the summons was to be delivered
through a proper officer of the court only. The
amendment subsequently provides that the
summons may now be delivered by the officer of
the court or at the expense of the plaintiff
through the courier service approved by the
Court. Moreover, the Plaintiff can himself
impact the service of summons on an application
being made by him to the court. This helps speed
up the process and has been done to reduce delay
at the previous stage by permitting the use of a
courier, email, fax for serving summons which
was regarded as illicit until now.
Rule 17 and Rule 18 of Order VI were deleted
by the Amendment Act of 1999 and were
reinstituted by the amendment in 2002. A new
provision has been added which provides that a
person has to file an affidavit in support of his
pleadings while verifying the pleadings. Further,
once the trial has commenced, no application for
amendment will be allowed except when the
Court arrives at the conclusion that in spite of
due diligence, the party could not have raised the
matter prior to the commencement of the trial.
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Written Submission After the Amendment in 2002, the parties now
have to file written submissions within 30 days
from the date of summons which can be
extended up to 90 days.

Order XVII: Adjournment The amendment Act has fixed an upper limit of 3
adjournments in a civil case and could only be
granted based upon a written application.

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ALTERNATIVE DISPUTE RESOLUTION -
UNDER §89 OF CIVIL PROCEDURE CODE

INTRODUCTION

It is a no-brainer that the Indian judiciary is tasked with facing a huge backlog of cases in its
Courts, due to which justice delivery mechanism takes a hit and litigants have to wait for years to
get a decision. This aspect has surely played a role in peoples’ mind regarding approaching
Courts for adjudication of disputes. Also, it has compelled them to look into other modes of
dispute resolution. The major dispute resolution mechanisms are arbitration, conciliation and
mediation, which are the traditional forms of ADR and with better internet access, the advent of
Online Dispute Resolution (ODR) as well.

REVIEW OF LITERATURE

§89 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) mandates courts
to try out the possibilities of resolving the pending civil disputes through arbitration or mediation
or Lok Adalat. To secure that purpose, the aforementioned section was amended in 2002. Parties
who decide to settle their disputes can get a partial waives of the court fees under §89 referral.

Prior to the enactment of the provision, there was no referral to ADR mechanisms. The Legal
Services Authorities Act has given the powers to the parties to approach Lok Adalat for the
disposal of the dispute. However, it does not give the mandatory referral option to the trial court
which is hearing that case. Based on the parties’ request, the trial court can refer to the pending
dispute to Lok Adalat. Apart from Lok Adalat referral option under Legal Services Authorities
Act, there is no other option to the parties as well as the trial court to refer the pending dispute to
other ADR mechanisms like arbitration, mediation, and judicial settlement.

The former §89 of the Code was related to the referral of the pending dispute to arbitration upon
the arbitration agreement between the parties and later, this section got repealed. The Indian
government has amended the Code in 1999 and introduced §89 in the Code with more ADR
mechanisms in contrast to its earlier form. There was a lot of resistance from the Bar for the

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implementation of Code of Civil Procedure Amendment Act 1999 (hereinafter referred to as ‘the
amendment Act’) including the implementation of §89 of the Code. As a result, the Indian
government could not notify this amendment Act.

Later Mr. Arun Jaitley, then Law Minister, consulted with the representatives from Bar Councils
at the national level and state level. Finally, the Indian government has notified the amendment
Act in June 200268 and it has come in to force on July 1st, 2002. The mandate of ADR referral
under §89 is to ensure amicable and quick resolution of disputes between the parties and reduce
the pendency of suits before the courts.

§89 (1) of the Code states that

“where it appears to the court that there exist elements of a settlement which may be
acceptable to the parties, the court shall formulate the terms of settlement and give them
to the parties for their observations and after receiving the observation of the parties, the
court may reformulate the terms of a possible settlement and refer the same for –

a) Arbitration

b) Conciliation

c) Judicial Settlement including Settlement through Lok Adalat or

d) Mediation (Inserted by the 1999 Amendment to the Civil Procedure Code).”

The constitutional validity of §89 of the Code was challenged before the Supreme Court of India
in Salem Advocate Bar Association v. Union of India 69 which is popularly known as Salem
Advocate Bar Association I and the Apex Court has upheld the constitutional validity of this
section.70 For overcoming some procedural aspects, the Apex Court has constituted a committee
to frame suitable rules for smooth implementation of §89 of the Code.

The committee had submitted its report along with model rules on the implementation of §89 of
the Code in 2005 to the Apex court. The Supreme Court has accepted that model rules in Salem

68
J. Venkatesan, CPC Amendments take effect from July 1, THE HINDU (Jun. 15, 2002 12:00 AM),
https://www.thehindu.com/todays-paper/tp-national/cpc-amendments-take-effect-from-july-1/article27852657.ece.
69
Salem Advocate Bar Association v Union of India, AIR 2003 SC 189.
70
Id.

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Advocate Bar Association II and it has asked all High Courts to frame similar rules for their
respective jurisdictions for the better implementation of §89 of the Code. 71

In Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) Ltd 72, the apex court has
further laid down some detailed guidelines especially, on the referral of the dispute to each ADR
mechanisms and which kind of civil dispute can be referred under §89. In this case, the court
held that if the dispute is going to be referred to arbitration or conciliation, both parties must give
their consent; whereas, if the dispute is going to be referred to mediation or to the Lok Adalat,
there is no requirement of the parties’ consent.

In this case, the apex court also lists out the disputes which are capable and non-capable of
settlement through ADR mechanisms.

CASES WHICH CANNOT BE REFERRED TO ADR:

1. Representative suits under Order I Rule 8 of the Code which involve public interest or interest
of numerous persons who are not parties before the court. (In fact, even a compromise in such a
suit is a difficult process requiring notice to the persons interested in the suit, before its
acceptance).

2. Disputes relating to election to public offices (as contrasted from disputes between two groups
trying to get control over the management of societies, clubs, association, etc.).

3. Cases involving the grant of authority by the court after inquiry, as for example, suits for grant
of probate or letters of administration.

4. Cases involving serious and specific allegations of fraud, fabrication of documents, forgery,
impersonation, coercion, etc.

5. Cases requiring protection of courts, as for example, claims against minors, deities and
mentally challenged and suits for declaration of title against the government.

6. Cases involving prosecution for criminal offences.

CASES WHICH CAN BE REFERRED TO ADRS:

71
Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344.
72
Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) LTD, (2010) 8 SCC 24.

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1. All cases relating to trade, commerce, and contracts, including - disputes arising out of
contracts (including all money claims);

 Disputes relating to specific performance;

 Disputes between suppliers and customers;
 Disputes between bankers and customers;
 Disputes between developers/builders and customers; - disputes between landlords and
tenants/licensor and licensees;
 Disputes between the insurer and insured;

2. All cases arising from strained or soured relationships, including

 Disputes relating to matrimonial causes, maintenance, custody of children;

 Disputes relating to partition/division among family members/coparceners/co-owners;
 Disputes relating to a partnership among partners.

3. All cases where there is a need for continuation of the pre-existing relationship in spite of the
disputes, including

 Disputes between neighbors (relating to elementary rights, encroachments, nuisance, etc.);

 Disputes between employers and employees;
 Disputes among members of societies/associations/Apartment owners Associations;

4. All cases relating to tortious liability including - claims for compensation in motor
accidents/other accidents; and

5. All consumer disputes including disputes where a trader/supplier/manufacturer/service

provider is very keen on maintaining his business/professional reputation and credibility or
'product popularity.

The Supreme Court further highlighted that there is a typographical error in §89 of the Code,
which must be rectified. It also stated that while referring the disputes, the judge must careful
regarding the ADR mechanism which he suggests or which the parties prefer and the nature of
the dispute.

LACUNA IN THE LAW

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Though this section has been inserted for the purpose of reducing the pending cases and disposal
of cases in a quick and efficient manner still, there are uncertainties that exist in the section itself.
§89 of CPC mandate the judge to refer the pending case to any form of ADR as he may think fit.
However, if we go by the plain meaning of §89 then, the trial court should frame the settlement
arrangement and the referred forum must simply sit and accept the same. The Supreme Court
looked at the drafting errors in the section and stated that §89 referral is a “Trial Judge's
nightmare.” The Supreme Court also highlighted that §89 of the Code has the following defects:

a) Role of the judge with regards to the referral of the dispute and recording of settlement.

b) Court’s obligation under §89 of the Code and mandatory referral of the dispute to any form of
ADR.

c) Deciding appropriate ADR for the resolution of the Dispute.

d) There is no clear-cut definition/explanation about different types of ADRs.73

e) Inclusion of another new form of ADR.

ONLINE DISPUTE RESOLUTION

There are some special dispute resolution mechanisms available in online platforms. Automated
negotiation is one such mechanism in which the disputing parties simply settle their claims
through the bidding process. Apart from this, these days traditional ADR mechanisms such as
arbitration, mediation, conciliation are conducted through virtual hearings.

The use of ODR in India is in its early stages. One of the recent examples of the application of
ODR can be seen in the field of tenancy and eviction by NestAway, a home-solutions firm, with
disputes arising out of non-payment of dues or early eviction. This is done mainly through
inserting an arbitration clause in the rental agreement. They started by trying to resolve disputes
through e-mail and then resorted to Center for Alternate Dispute Resolution Excellence or Cadre,
which is a website-based platform for resolution.

Parties prefer dispute resolution through these mechanisms as the amounts involved are small
and the timings are convenient which is not the case with arbitration. First, one party approaches

73
Supra note 69.

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the platform, which contacts the other party. If both parties agree to the arbitration rules, an
arbiter is appointed and time-stamped intimations are sent on emails and WhatsApp and SMS.
The parties do not meet face to face but communicate electronically, including via video calls.
The decision is legally binding comes in 20-25 days. At Cadre, the arbitrator’s fee is levied on
both parties, but is usually paid by the party that brought up the claim. Another startup, Sama is
into ODR which is running a pilot project for ICICI Bank. They have resolved 10,000 disputes
with values of up to INR 20 lakhs.74

MINDSET OF THE STAKEHOLDERS ON THE IMPLEMENTATION OF

§89

Any policies, acts or norms have to be implemented at the end-users whether it is related to the
production process or any other program. Similarly, in 1999, the government amended §89 of the
Code and mandated the courts to try out the possibilities of resolving the pending civil disputes
through arbitration or mediation or Lok Adalat. Hence, the successful implementation of this
section depends on the stakeholder’s positive behaviour.

The main focus is to find out how the stakeholders act upon §89 ADR referral. The
implementation of this provision depends on the key players such as litigants, advocates, and
judges. Unless the litigants have shown their willingness, the dispute cannot be settled through
ADR. The judges can refer the dispute to Lok Adalat or Mediation as per §89; however, the
referral becomes ceremonial unless the litigants regularly utilize this referral option.

Advocates have a very pivotal role in the implementation of this section. They are the one
supposed to explain the options of ADR and the significance of ADR to the litigants and
encourage the litigants to take part in the ADR process. Finally, the official duty of the
implementation of this section lies on the shoulders of the judges who are hearing the civil
dispute at the very first instance. The judges must ensure that the litigants are aware of ADR
options and the outcome of the non-adjudicatory mechanism is in accordance with law and
benefit to the litigants.

74
Indulekha Aravind, Online Dispute Resolution is Beginning to find Takers in India, THE ECONOMIC TIMES (Jan.
12, 2020 06:14 AM), https://economictimes.indiatimes.com/small-biz/startups/features/online-disputeresolution-is-
beginning-to-find-takers-in-india/articleshow/73206371.cms.

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 RESULT

Presently, majority of the clients are still in the dark regarding the use of ADR mechanism, due
to their lack of knowledge about it. The judges as well as the advocates have not enlightened the
litigants about the scope of ADR processes as they themselves are not fully aware of the scope of
the provision. In this sense, it could be said that it is very difficult to say that ADR process
system is being properly implemented.

RECOMMENDATIONS

PROPOSED AMENDMENT TO §89 OF CPC

1) Where it appears to the court, having regard to the nature of the dispute involved in the suit or
another proceeding that the dispute is fit to be settled by one of the ADR mechanism then, the
court shall, preferably before framing the issues, record its opinion and direct the parties to
attempt the resolution of dispute through one of the said ADR processes which the parties prefer
or the court determines.

2) If the court decides or the parties prefer the reference of dispute to any non-adjudicatory
alternative dispute resolution processes, including conciliation, mediation, judicial settlement,
settlement through Lok Adalat, DRB, Early Neutral Evaluation, mini-trial and ODR then, the
court shall refer the same to such ADR mechanisms with the consent of the parties or its own
motion. However, the court cannot refer the dispute to Conciliation, mini-trial, Early Neutral
Evaluation, DRB without the written consent of the parties.

If the court decides or the parties prefer the reference of dispute to Any of the adjudicatory
alternative dispute resolution processes Including Arbitration, Permanent Lok Adalat, Dispute
adjudicatory Board and Expert Determination then, the court shall, preferably before framing the
issues, record its opinion and direct the parties to attempt the resolution of dispute through one of
the said adjudicatory process upon the written consent of the parties.

If the court refers the dispute to any of the non-adjudicatory dispute resolution mechanism then,
settlement outcome of the dispute should be filed before the court and the court must review
settlement agreement or award. The court, if it finds any inadvertent mistakes or obvious errors,

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it shall draw the attention of the conciliator or the Lok Adalat or the parties as the case may be
who shall take necessary steps to rectify the agreement or award suitably with the consent of
parties.

OTHER RECOMMENDATIONS

There must be a regular audit of court annexed mediation with regards to a number of cases filed
and resolved in a particular center. Based on this information dispute centric mediation process
can be developed. Further, there must be concrete information about the number of mediation
conducted by the Mediation and Conciliation Project Committee (MCPC) mediation trainees.

Also, adequate training must be given to the advocates and judges about various conventional
and new form of ADR mechanisms and the importance and features of these mechanisms.
Awareness programs must be planned specifically for the litigants and the common public who
will be the future litigants on the availability of ADR mechanisms for the resolution of their
disputes.

National Judicial Data Grid (NJDG) must maintain separate data on the §89 referral and perform
a regular audit on the success and failure of referred cases. This would enable the government to
bring suitable special dispute resolution policies for each dispute.

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