BACKLOG OF CASES IN THE INDIAN JUDICIARY-JUSTICE DELAYED IS JUSTICE

DENIED?

I. Introduction:

“Justice delayed is Justice denied” is fast becoming the harsh reality of the Indian Judicial
System. The Indian Judiciary finds itself in a desperate state today due to the mind-boggling
backlog of cases in India. Almost 27 million cases are pending in Indian courts, of which
roughly 9% are lying for more than ten years and around 16% are lying for 5-10 years. 1 There is
a very famous saying in India that the litigant dies but the case remains alive. This never ending
logjam has resulted in the loss of faith in the legal system of the country.

The huge backlog of cases in Indian courts has been a bane of the judiciary and has left litigants
wringing their hands. Vigilantism strives in the absence of speedy justice. Groups such as
‘Gulabi Gang’ are famous for taking law in their own hands and taking revenge in cases of
Domestic Violence or honor killings.2 Denial of speedy justice also gives rise to corruption.
People are hesitant to go through the lengthy legal procedure and would instead prefer bribing a
police officer or a judge.

The Delhi High Court, in 2014 granted divorce to an 85-year-old man after a legal battle of 32
years that ruined all hopes of resuming a married life. This case was just an instance of the
malaise that is afflicting our Indian judicial System. Such delays not only results in loss of faith
in the legal system but raises questions on the capability of the system to impart justice in an
effective and efficient manner.3

Time and again, various committees have been formed to investigate the causes of pendency. In
1924, Rankin Committee was set up to investigate on the delay in civil cases in High Courts and
Subordinate Courts. After that, another committee known as High Courts Arrears Committee
was constituted in 1949 under the chairmanship of Justice S.R. Das. In 1969 Hidayatulla CJ
presided over a committee to look into the problem of arrears in all its aspects. Later on, Justice
1
“The National Judicial Data Grid,” http://njdg.ecourts.gov.in/njdg public/main.php (Last accessed on February
23,2018).
2
https://feminisminindia.com/2018/02/22/v-vigilantism-gulabi-gang/ (Last accessed on February 23, 2018).
3
Waiting for Justice, Hindustan Times, November 2016 https://www.hindustantimes.com/india-news/waiting-for-
justice-27-million-cases-pending-in-courts-4500-benches-empty/story-H0EsAx4gW2EHPRtl1ddzIN.html (Last
accessed on February 24, 2018).
Shah was appointed the Chairman of the Committee. The Committee was known as High Courts
Arrears Committee, 1972.4

Right to Speedy trial is not explicitly mentioned in the Indian Constitution. It is only by the
Indian Supreme Court, which has established the proposition in a catena of cases that the right to
a speedy trial is a fundamental right implicit in Article 21 5, because no procedure can be fair
unless it ensures a speedy determination of the guilt of the accused. Therefore, speedy trial is of
the essence of Criminal justice and there can be no doubt that delays in trial itself constitutes
denial of justice.

II. Major causes for the mounting backlog of pending cases

The problem of delay in Indian judicial system has been studied extensively by the Indian Law
Commission over the years. Some of the prominent factors that have contributed to this
burgeoning backlog of cases are:

a) Judicial Manpower:

Lack of adequate number of judges to handle the large number of cases pending in the courts is
seen to be one of the major reasons for delays in disposal of the cases. There is a huge judicial
vacancy which the government has not been able to make up.  In a landmark case, P
Ramachandra Rao v State of Karnataka6, the court clearly mentions that “The root cause for
delay in dispensation is poor judge-population ratio”.

Law Commission of India in its 120th report on Manpower Planning in Judiciary compared
India’s judge-population ratio vis-a-vis developed countries and found that the ratio in India is
10.5 judges per million people (lowest in the world) as compared to 41 per million people in
Australia, 75 per million people in Canada, 51 per million people in United Kingdom and 107
per million people in United States of America.7 The same report also recommended that there
have to be 50 judges per million people.8

4
79th Report, Law Commission of India, 1979, available at http://lawcommissionofindia.nic.in/51-100/Report79.pdf.
5
Article 21, Constitution of India, 1950.
6
(2002) 4 SCC 578.
7
120th Report, Law Commission of India, 1987, available at http://lawcommissionofindia.nic.in/101-
169/report120.pdf.
8
Ibid.
CJI T.S. Thakur while speaking at the inauguration of a joint conference of chief ministers and
chief justices of high courts said that nothing had changed since 1987 when the Law
Commission had recommended an increase in the number of judges from 10 judges per million
people to 50 judges per million people. As of today, the judge-population ratio in India is way
lower than it is in UK, US, Australia and Canada. The present ratio stands at 19.66 judges per
million people.9 The executive has not paid much heed to this recommendation of the law
Commission and that has resulted in about 27 million cases being pending in court.10

There is also a severe shortage of judges in the subordinate courts which is a cause of concern as
there are 4954 judges’ posts vacant when the sanctioned strength of judicial officers was 21,
324.11 This is the result of lack of advance planning and poor recruitment policy. Additional
Judicial Power, support staff as well as infrastructure is required immediately to handle the
situation.12

This huge lack of judicial manpower is burdening the existing judiciary which is one of the
major causes of such a backlog of cases.

b) Power Battle between the Executive and Judiciary

There has been a constant tussle between the executive and the judiciary and the main bone of
contention is the process of selection of judges. This tussle has been one of the main causes of a
standstill in the appointment of judges. The appointment of judges was adjourned for a year to
decide the new memorandum of procedure. The procedure that was proposed gave power to the
Centre to reject any name on the ground of national security. This was struck off by the Supreme
Court. They have now reached an agreement to continue with the old collegiums system. It’s
only after the Intelligence bureau vets and approves the collegium’s recommendations that the

9
India’s Judge Population ratio goes up marginally, Indian Express, January 2018,
http://indianexpress.com/article/india/web/indias-judge-population-ratio-goes-up-marginally-5014968/ (Last
accessed on February 23, 2018).
10
The Times of India, August 2016, https://timesofindia.indiatimes.com/india/An-overworked-Chief-Justice-TS-
Thakur-breaks-down-in-front-of-PM-Modi/articleshow/51964732.cms (Last accessed on February 23, 2018).
11
Subordinate Courts of India: A report on Access to Justice 2016 available at
http://supremecourtofindia.nic.in/pdf/AccesstoJustice/Subordinate%20Court%20of%20India.pdf
12
Ibid.
list reaches the Centre for a final approval. This takes a lot of time also one aspect which is
getting ignored is that only 170 names were provided as opposed to the need of 462 judges.13

c) Increasing literacy and economic prosperity

With increased awareness and literacy, more and more people approach courts and that has also
been a major reason for the burgeoning backlog of cases. Growing economic prosperity is
another reason for increase in civil/commercial litigation. Higher prosperity is the result of
diverse business activities and urbanization which often give rise to commercial or civil disputes
between the parties.

d) Non-Adherence of procedural timeframes

There has been frequent non-adherence of the procedural timeframes by the judges which is
another major reason for the delay in disposal of the cases. Specification of time limits can be
very helpful to minimize judicial delay. Jurisdictions such as UK and Singapore have this
distinctive feature of process reforms. In India also, there have been two major amendments to
the Code of Civil Procedure which specified time frames for completion of various steps in a
civil proceedings. The 1999 amendment fixed the limit on the number of adjournments a court
can grant during the hearing of the suit. However, in the 2005 case of Salem Advocate Bar
Association-II14, the Supreme Court said that the amendment cannot take away the inherent
power of the court to allow more than three adjournments. After this decision, there have been
several times when the courts have said that it is their inherent right to adjourn the proceedings.

The 1999 Amendment also fixed an outer timeline of 30 days for service of summons on
defendants. However, in the case of Salem Advocate Bar Association-I15, the Supreme Court
interpreted this to mean that 30 days limit only lays down the timeframe within which the
plaintiff must take steps to enable the court to issue the summons. It did not specify the time
limit within which summons ought to be served on the defendant by the court. In another attempt
to curb the delays, the amendment of 2002 incorporated a mandatory outer timeline for filing

13
Indian Express, January 2017 http://indianexpress.com/article/india/district-courts-2-81-crore-cases-pending-
5000-judges-short-across-india-4475043/ (Last accessed on February 24, 2018).
14
(2005) 6 SCC 344.
15
AIR 2003 SC 189.
written statement by not allowing the courts to accept it beyond a period of 90 days from the date
of service of summons. However, in the 2005 judgment of Kailash v. Nanhku16, the Supreme
Court said that the prescribed deadline is not mandatory. It held that courts can use their
discretion to accept the delayed written statements in exceptional circumstances. Filing of
delayed written statements by the lawyers is no more exceptional and has become normal now.
In each of these instances, the Supreme Court diluted the timeframe inserted by the amendments
according to its perceived sense of justice. Thus, the Judiciary itself has unwittingly come to
countenance delay.17

III. Study of different jurisdictions

Singapore

Singapore faced the problem of backlog of cases several years back. In January 1991, there were
1912 suits begun by writ and 96 admiralty suits awaiting hearing dates in the High Court. Today,
the Supreme Court no longer has a backlog problem. Several measures were adopted by
Singapore to reduce this backlog. These include restricting the cases that must be heard before
the judges. For instance, matters involving little or no law were transferred from the judge’s lists
to save valuable judicial time. It also increased the number of judges and the number of
courtrooms. Cases and applications were heard during court vacation also. The restrictions were
put on the granting of adjournments by the court. There was also the introduction of night courts.
To protect the achievements in clearing the backlog of cases, an ongoing program to monitor
cases month by month had been put in place.18

Perhaps in order to facilitate the litigation process and improve the case management, Singapore
has taken the most widely known measure in the form of the use of technology. In 2000, the
Electronic Filing System (EFS) was officially launched that allowed law firms to electronically
file documents in court at any time of the day without having to attend at the Registry in

16
AIR 2005 SC 2441.
17
Brajesh Ranjan, The Times of India, August 2016 https://blogs.timesofindia.indiatimes.com/toi-edit-page/what-
causes-judicial-delay-judgments-diluting-timeframes-in-code-of-civil-procedure-worsen-the-problem-of-
adjournments/ (Last accessed on February 23, 2018).
18
Malcom Rowat, Walled H. Malik & Maria Dakolias, JUDICIAL REFORM IN LATIN AMERICA AND THE CARIBBEAN,
1995.
person.19 Also, Singapore promotes and encourages arbitration both locally and internationally
which can also play an instrumental role in reducing the burden of cases on the courts.20

Another measure that the Singapore courts have used in case management that is worth
mentioning is the concept of automatic discontinuance. 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.21

The United Kingdom

The UK also faces the problem of backlog of cases. To deal with the same, there has been IT
modernisaton in the Criminal Courts. The Crown Court Digital System has been introduced
successfully in all crown courts that enables the sharing of information between the parties and
the court and allows cases to be managed online and without paper. New judicial laptops and
web-based technologies enable the judiciary to work effectively and flexibly, whilst the
installation of wifi in all criminal courts enables parties, representatives and other court users to
interact with the courts with ease. All these have helped the country to reduce the backlog of
cases to a great extent.

Other measures which are being taken to reduce the backlog of cases include dealing finally with
more applications without the need for an oral hearing, Re-routing some appeals from the
County and Family Courts to the High Court as the next court and judicial tier, extending the
number of sittings by two (rather than three) judges enabling more sittings to take place,
increasing the number of judicial assistants supporting the judges and streamlining court
processes e.g. limiting the size of court bundles and skeleton arguments.22

19
Electronic Filing System, (last accessed 24 February 2018).
20
Justice Judith Prakash’s paper, “MAKING THE CIVIL LITIGATION SYSTEM MORE EFFICIENT”, delivered to the
delegates at the Asia Pacific Judicial Reform Forum Round Table Meeting in Singapore on 21 January 2009 (last
accessed 24 February 2018).
21
Order 20, Rue 2(6), Singapore Rules of Court.
22
The Lord Chief Justice’s Report 2016, Judiciary of England and Wales available at
https://www.judiciary.gov.uk/wp-content/uploads/2016/11/lcj-report-2016-final-web.pdf.
Canada

Delay in the disposal of the cases is a significant problem in Canada. To address the same,
Standing Senate Committee on legal and Constitutional Affairs gave its report in 2016. The
Committee highlighted two encouraging innovations: Restorative Justice programs and
Alternative Courts. The Committee was of the opinion that restorative justice and alternative
courts can solve the problem of backlog of cases and can improve the overall efficiencies of the
justice delivery system. The Committee also suggested that new technologies must be used to
increase the overall efficiency.23

Australia

Like other common law countries, Australia is also concerned about the fairness, cost efficiency
and of course delay of the judicial system. Case management was introduced in Australia in the
late 1980s. However, it has evolved over the past decades in response to concerns of excessive
delay in the disposal of the case. In Australia, different types of courts deal with different types
of cases. There is a system to collect monthly statistics of cases. There is also a creation of
specialist lists to monitor particular category of cases such as motor accident claims. It also
introduced pre-trial supervision of cases by registrars, with a view to ensuring that prospect for
settlement was explored.24

The United States of America

The United States of America has a clear cut mandate of ‘speedy trial’ in the sixth amendment of
its Constitution. It lays down that the accused shall have the right to speedy and public trial.
However, Indian Constitution does not expressly declare this as a fundamental right. The
Supreme Court of India, only through the catena of cases has established that right to speedy trial
is the fundamental right implicit in article 21.

The United States is the first country which has enacted a legislation to implement the
constitutional guarantee of speedy trial to all accused persons. The Federal Act of 1974 is titled
as the Speedy Trial Act and was passed in 1974. The Act prescribes a set of time limits for
23
Delaying justice is denying justice an urgent need to address lengthy court delays in Canada, August 2016
available at https://sencanada.ca/content/sen/committee/421/LCJC/Reports/CourtDelaysStudyInterimReport_e.pdf
24
Case management in reducing case backlogs: potential adaptation from the New South Wales district court to
Bangladesh civil trial courts , February 2015 file:///C:/Users/dhdkghf/Downloads/01whole.pdf.
carrying out the major steps in criminal proceedings such as the giving of information and
indictment in the prosecution of the Criminal cases. The Act requires that the trial of the accused
must commence within 70 days from the filing date of the indictment or from the date on which
the accused appears before a judicial officer of the court, whichever date is later. The indictment
should be filed within 30 days from the date of arrest. If a violation of the provisions of the
Speedy Trial Act, 1974 occurs, the indictment against the accused must be dismissed.

In response to mounting backlog of cases, the Fairfax circuit court in Fairfax country, Virginia
has also devised a differentiated case tracking program to schedule cases according to
individualised timelines established by the courts and not by the litigants and attorneys.

IV. Suggestions and Recommendations to reduce the Backlog of Cases

a) Maintaining an adequate judge-population ratio:

The fourteenth Report of the Law Commission of India on the Reform of Judicial Administration
dealt with the issue of delay and arrears and identified inadequate judge strength as the "root
cause" of the problem.25 This perspective has been reiterated in several successive reports of the
26
Law Commission. The 120th Report of the Law Commission on Manpower Planning in the
Judiciary (1987) suggested a formula for the fixation of judge strength, adopting a demographic
approach. The Report suggested that demographics should be the basis for fixation of judge
strength. The commission was of the opinion that the working out of the ratio of Judges Strength
per million of Indian population is one clear criterion of manpower planning. 27 There has to be an
increment in the judges’ strength.

25
14th Report, Law Commission of India, 1958 available at http://lawcommissionofindia.nic.in/1-
50/Report14Vol1.pdf
26
77th Report of the Law Commission of India on "Delay and arrears in trial courts", 1978 , 78th Report of the Law
Commission of India on "Congestion of under trial prisoners in jails", 1979, 79th Report of the Law Commission of
India on "Delay and Arrears in High Courts and other Appellate Courts", 1979, 121st Report of the Law
Commission of India (method of review of judge strength at regular intervals), 1987, 124th Report of the Law
Commission of India - The High Court Arrears - A fresh look, 1988; Report of The Arrears Committee (Three Chief
Justices Committee : Kerala, Calcutta & Madras), 1989-90.
27
120th Report, Law Commission of India, 1987 available at http://lawcommissionofindia.nic.in/101-
169/report120.pdf
Government can possibly launch a five year plan where it can fast track the process of filling up
of vacancies. It can increase the number of law schools and private law colleges so that more
lawyers are brought into the system.

b) ‘Direct to Supreme Court’ cases

There are certain cases that are high profile and would involve a lot of wastage of time by going
through the circuitous route of Sessions Court, High Court, Supreme Court and then the
presidential appeal process. For instance, cases such as Arushi-Hemraj double murder case, The
Salman Khan hit and run case, should be identified and sent to the fast track courts and the
appeal should go directly to the Supreme Court to reduce the burden on the lower judiciary.

c) Judicial infrastructure

The National Mission for Justice Delivery and Legal Reforms, in one its reports said that
Adequacy of judicial infrastructure is a pre-requisite for reduction of pendency and backlog of
cases in courts.28 It is lamentable that judges, particularly in the lower courts, still lack basic
facilities to perform their work. There have been instances where a number of judicial officers
posted at a place could not function for want of courtrooms. More specialised courts and
tribunals have to be created to minimize litigation and reduce the burden on the higher judiciary.
Quality and adequate judicial infrastructure have to be in place to reduce the backlog of cases.

d) Alternative Dispute Resolution System

The method of Alternative Dispute Resolution seems to be a light of hope to overcome the
obstacle of delay in disposal of cases and ensure quick access to justice. These methods of ADR
are instrumental in reducing the burden of litigation on courts, while at the same time also
delivering a satisfying experience for the parties where they get the opportunity to expand the pie
through collective bargaining or creative bargaining and fulfill their interest by greater
participation in the outcome of the process. However, there seems to be a lack of awareness
about the availability of these mechanisms. It is as much a duty of the citizens to protect the
courts form the burden of unnecessary litigation as it is of the judiciary to ensure justice to all.

28
Report of National Mission for Justice Delivery and Legal Reforms available at
http://lawmin.nic.in/doj/justice/National_Legal_Mission-7NOV2009.pdf
Citizens must therefore aim at resolving minor disputes among themselves and approaching the
court only as a final resort.29

e) Increasing budget allocation

Poor budgetary allocation to the judiciary over the years by the successive government is seen as
one of the major reasons for desperate state of the judicial system.

The National Court Management Systems (NCMS) in its Policy and Action Plan released in
2012 by the then Chief Justice of India stated that judicial independence cannot be interpreted
solely as a right to decide a matter without interference. Judicial independence is redundant if it
is not independent resource-wise. The Union Budget for 2017-18 has allotted Rs. 1,744.13 crore
for the administration of justice, including justice delivery, legal reforms, development of
infrastructural facilities and autonomous bodies associated with legal matters. It is less than one
per cent of the total budget of Rs. 21.47 lakh crore. It is a no-brainer that the current budgetary
allocation will not be sufficient to deal with the challenges posed by the backlog of cases
languishing across the length and breadth of the country. 30 Therefore, to increase the rate of
disposal of cases in the courts, it is very essential that the budget allocation of the judiciary is
increased.

f) E-courts project

The use of technology can be very helpful in speeding up the justice delivery system. The
Supreme Court launched e-filing of petitions almost 10 years back. The computerization in
Subordinate Courts also started in 1997. In fact computerization in subordinate courts started in
1997.An e-committee was set up in December 2004 to assist the Chief Justice of India in
formulating a policy on computerization of Indian judiciary and advise him on technological,
communication and management. This e-courts project seeks to modernize and speed up the
justice delivery system by complete digitalization of the courts but the progress has been really

29
Alicia D. Nicholls, Alternative Dispute Resolution: A viable Solution for reducing Barbados’ case backlog?,
October 2012 https://caribbeantradelaw.files.wordpress.com/2012/10/adr-a-viable-solution-for-reducing-barbados-
case-backlog_nicholls.pdf (Last accessed on February 25, 2018).
30
http://www.livelaw.in/see-court-see-court-burdened-judicial-system-can-adr-system-answer-part/ (Last accessed
on February 25, 2018).
slow.31 There is a need for better policy forecasting and coordination of activities within and
across all stakeholder groups.32 The successful and fast implementation of the e-courts project
would fundamentally transform the justice delivery system and would escalate the process of
clearing out the pending cases.

In addition to these,

 Institutions like Gram Nayalya (Village Courts) and Gram Parishad (Village Board)
should be strengthened.
 Laws similar to the Speedy Trial Act, 1974 (U.S) should be enacted which fixes
standard time requirements for timely prosecution and disposal of criminal cases in
district courts.
 State must encourage the process of Alternative Dispute Resolution.
 There can also be different departments for different types of disputes in the courts.
 There can be a screening department in the court where the parties can go and the
screening can take place and the parties be directed to a reasonable mode of solution. The
prospects of settlement can also be explored.
 There can be a pretrial conference by the judge between the parties where the parties can
be encouraged to come up with the issues so that the court saves the time in framing of
the issues. The Court can also help the parties to identify the issues they need a trial

Thus, an active involvement of the judge is required to cut down on the delay.

We are reaching a point where the whole system would collapse sooner or later if some major
steps are not taken. It is high time that Government took the initiative to cut down the mounting
arrears of cases so that the confidence of people in the judiciary can be revived.

31
Available at http://www.wbja.nic.in/wbja_adm/files/Brief%20on%20e-courts%20Project.pdf (Last accessed on
February 26, 2018).
32
Few Judges, Fewer Courtrooms: Indian judiciary tripped by poor infrastructure, Hindustan Times, November 2016
https://www.hindustantimes.com/india-news/few-judges-fewer-courtrooms-indian-judiciary-tripped-by-poor-
infrastructure/story-uah3AyEY7OsBsT4VwXY5pN.html (Last accessed on February 24, 2018).