LIBERATING INDIA FROM THE SHADOW OF DELAYED

JUSTICE

Submitted By:- Rashmi Pandey

Submitted To –Dr Deepak Srivastav/Mrs. Aditi Singh

Subject:- Comparative Public Law

Semester –1

Hidayatullah National Law University

Raipur (C.G)
 Declaration
I hereby declare that the project work entitled “Liberating India from the Shadow of Delayed
Justice” submitted to HNLU, Raipur, is a record of an original work done by me under the
guidance of Dr Deepak Srivastav and Mrs. Aditi Singh, Faculty of Law, HNLU, Raipur.

Rashmi Pandey
LLM
HNLU Raipur

I
 Acknowledgements
I feel highly elated to work on the topic “Liberating India From The Shadow Of Delayed Justice”
The Project has been possible due to obligated assistance of several persons.
I express my deepest regard and gratitude for Dr Deepak Srivastav/ Mrs. Aditi Singh, Faculty of
Law. There consistent supervision, constant inspiration and invaluable guidance have been of
immense help in understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing extensive
database resources in the Library and through Internet.

I would be grateful to receive comments and suggestions to further improve this project report.

RASHMI PANDEY
LLM
HNLU Raipur
 TABLE OF CONTENTS

Table of Cases………………………………………………………………………..………..IV

Table of Statues………………………………………………………………………………..VI

Table of Abbreviations……………………………………………………………………......VII

Chapter I- Introduction………………………………………………………………………….1

 Review of Literature…………………………………………………………2

 Statement Of Problem………………………………………………………..3

 Research Methodology……………………………………………………....3

 Object of the Study…………………………………………………………..4

 Coverage and Scope………………………………………………………….4

Chapter II –Overview……………………………………………………………………….......5

Chapter III-Judicial Decision on Speedy Justice………………………………………………….…5

Chapter IV- 4.1. Problems in the justice delivery system…………………………………...............8

4.2. Statistics on pendency: courts overburdened……………………………………….9

4.3. Reasons for delay and inaccessibility of courts……………………………….......10

4.4. Judges Strength at various levels………………………………………………….12

Chapter V -Need for speedy resolution- Areas of reform…………………………………………..15

Conclusion and
Recommendations…………………………………………………………….18

References……………………………………………………………………………………..19

III
 TABLE OF CASES

Name of the case Page Number

Hussainara Khatoon  v. State of Bihar, AIR1980 SC 1819 1,6

1
Tashi Delek Gaming Solutions v. State of Karnataka, (2006) 1
SCC 442
1,6
Maneka Gandhi v. Union of India, AIR 1978 SC 597
1
Hindustan Sugar Mills v. State of Rajasthan, AIR 1981 SC 1681

1
Abdul Rehman Antuley v. R.S. Neryak, AIR 1992 SC 1701
1,7
P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856

7
Anil Rai v. State of Bihar, (2001) 7 SCC 318
1
Brij Mohan Lal v. Union of India, (2002) 5 SCC 1
8
All India Judge’s Association v. Union of India, (2002) 4 SCC 247
1
Rupa Ashok Hurra v. Ashok Hurra and another, AIR 2002 SC
1771
8
Pradeep Kumar Verma v. State of Bihar, AIR 2007 SC 3057
8,6
Moti Lal Saraf v. State of Jammu and Kashmir AIR 2007 SC 2977

1
Pankaj Kumar v. State of Maharashtra, AIR 2008 SC 3077
9,6
Union of India v. Rahul Rasgotra, AIR 1995 SC 2237
2,6
Madheshwardhari Singh v. State of Bihar, AIR 1986 Part 3241986
Cr LJ 1771 (FB)
6
In East India Hotels Ltd. v. Syndicate Bank 45 (1991) DLT 476 SC
6
K.K. Baskaran v. State Rep By Its Secretary, Tamil Nadu & Ors;
decided on 4 March, 2011
7,8
Raghubir Singh v. State of Bihar AIR 1987 SC 149
6
IV
Bihar Legal Support Society v. Chief Justice of India(1996) 4 SCC
767
8,1,5
Mihir Kumar v. State of West Bengal 1990 Cr LJ 26 (Cal).
7,3
A Registered Society through its Director v. Union of India and
Or,1996 AIR 1619, 1996 SCC (4) 33
8,4
Khatri v. State of Bihar (1981) 1 SCC 627

Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263 6,5

Sakshi vs.Union of India, AIR 2004 SC 3566 1,4

State Govt. V. Sheodayal, 1956 Cr LJ 83 M.P 9,4

Tuka Ram And Anr vs State Of Maharashtra, 1979 AIR 185 1,7

Amar Nath v. Union of India, AIR 1963 SC 424 10

Ghanshyam Dass v. Domination of India, 1984 AIR 1004, 1984 6,7

SCR
Raghunath Das v. UOI, AIR 1969 SC 674 8,6

Raju v. State of Karnataka with Krishna v. State of Karnataka, 1,6

(1994) 1 SCC 453

Salem Advocates Bar Association v. Union of India,  2005 (6)SCC 7

V
 TABLE OF STATUTES

INDIAN PENAL CODE 1860

CODE OF CIVIL PROCEDURE 1908
CRIMINAL PROCEDURE CODE 1974
ARBITRATIO N AND CONCILLIATION ACT 1996

VI
 TABLE OF ABBREVIATIONS

ADR Alternate Dispute Resolution

AIR All India Reporter
E.g. Example
Ed. (s) Editor, or edited.
i.e. that is
Ibid: Ibidem
ICA Indian Contract Act
Pvt. Ltd Private Limited
SC Supreme Court
SCC: Supreme Court Cases
Supra: Above
TEX. L. REV. Texas Law Review Above
Vs.: Versus

VII
 LIBERATING INDIA FROM THE SHADOW OF DELAYED
JUSTICE

Chapter I
1.1 Introduction :- RIGHT TO SPEEDY JUSTICE AND ACCESS TO JUSTICE

“Timely justice is the right of every litigant and speedy justice is the obligation of every
functionary of the judicial system”1.

“The ‘right to litigate’ or the ‘right to get access to justice’ has been amply provided in our
Constitution as well as in international instruments. The Supreme Court has specifically
recognized them as a human right and a key to defending other rights” 2. The Constitution of
India under its Preamble has defined and declared the common goal for all i.e.: ‘to secure to all
the citizens in India Justice Social, Economic and Political Liberty Equality and Fraternity’. The
Indian Constitution by and large seeks to promote Rule of Law through many of its provisions
like Article 14 of the Constitution that guarantees right to equality before law and the equal
protection of the laws. “Article 21 of the Constitution of India states that ‘no person shall be
deprived of his life or his personal liberty except according to procedure established by law.’ The
Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by
the Supreme Court of India as manifestation of fair, just and reasonable procedure enshrined in
Article 21”3.  Right to speedy trial encompasses all the stages, namely the stage of investigation,
inquiry, trial, appeal, revision, re trial and is applicable not only to proceedings before a court but
also to police investigation preceding it4.

1
Balakrishnan K.G., Judiciary in India: Problems and Prospects, 50 JILI 462, (2008).
2
Tashi Delek Gaming Solutions v. State of Karnataka, (2006) 1 SCC 442.
3
Maneka Gandhi v. Union of India, AIR 1978 SC 597, Hussainara Khatoon  v. State of Bihar, AIR1980 SC 1819,
Hindustan Sugar Mills v. State of Rajasthan, AIR 1981 SC 1681, Abdul Rehman Antuley v. R.S. Neryak, AIR 1992
SC 1701, P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856, Anil Rai v. State of Bihar, (2001) 7 SCC
318, Brij Mohan Lal v. Union of India, (2002) 5 SCC 1, All India Judge’s Association v. Union of India, (2002) 4
SCC 247, Rupa Ashok Hurra v. Ashok Hurra and another, AIR 2002 SC 1771, Pradeep Kumar Verma v. State of
Bihar, AIR 2007 SC 3057, Moti Lal Saraf v. State of Jammu and Kashmir, AIR 2007 SC 2977, Pankaj Kumar v.
State of Maharashtra, AIR 2008 SC 3077, Union of India v. Rahul Rasgotra, AIR 1995 SC 2237
4
Madheshwardhari Singh v. State of Bihar, AIR 1986 Part 324: 1986 Cr LJ 1771 (FB).

1
1.2. Review of Literature

Balakrishnan K.G., Judiciary in India: Problems and Prospects, 50 JILI 462, (2008)
Justice Balakrishnan explains the core of delay in justice delivery system is the complexity of
laws and provisions of endless appeals. Unprofessionalism amongst lawyers and regular
adjournments add to the misery of clients.

ARORA B.L., Law Of Speedy Trial In India, 22, (2006)

The book contains a gist of all relevant cases where Supreme Court and High Court decisions are
referred relating to speedy justice. The book also discusses Malimath Committee report and
discusses the effect of various experiments in the form of Lok Adalats and Fast Track courts in
speeding up administration of Justice.

Anand A.S., Justice For Women- Concerns And Expressions, 56, (2nd Ed., 2003).
Justice Anand, who has been Chairman of National Human Rights commission and also Chief
Justice of India had beautifully penned down a book on concerns of women and how this gender
is usually at the receiving end of violence in society. He asserts that justice to women is
quintessential for any progressive society. His book is divided into two parts where 1 st part deals
with the his articles on the issue and second part is a compilation of case laws significant to
earmark change of approach as to how justice for women is to be seen.

Panchu Sriram, Mediation Practice & Law, 3-5 (2011).

The Author brings about Art and technique of Mediation. Litigation’s losses are high in terms of
time, expense and damage to relationships. There is a need for alternative methods which are
quicker, cost less, yield practical and enforceable solutions , while preserving relationships. With
its focus on noncoercive and consensual processes, mediation is the fastest growing dispute
resolution remedy worldwide. With the law being amended and the courts setting up in-house
mediation centres, a wide range of cases, including civil, commercial and matrimonial disputes,
are being resolved by this process.

2
Lalu Varghese, Panchayat Court as an ADR Mechanism: Effectiveness and Advantages, 11(4)
Nayaya Deep 30, (2011).

The Author argues the effectiveness of Panchayat Courts as ADR forums. In issues like property
and minor civil matters, these courts remain crucial in providing affordable and quick redressal
to litigants.
Nariman Fali S, India’s Legal System Can it be Saved, 142(2006)
The Author very charismatically traces the history of justice system in India from smrities to
current legal problems. There is precision and brevity in explanations of concepts of PIL,
Judicial Review and ADR. The Author who has himself been ornamental in amendments brought
in by CPC like insertion of Sec 89 and Crpc in 1986, towards the end of the book points on to
some serious shortcomings in justice delivery system.

Verma J.S, New Dimensions of Justice, 102 (2000).

There is discussion with relation to difference which is carved between Law and Justice. This has
been recognized by the law itself by way of Inherent Powers in CPC Sec 151 and Crpc Sec 482
and even in Constitution Under Article142.

1.3. Statement Of Problem:- India is soon going to be the most populous country in the
world, yet our preperations for 21st century are certainly affected by a slow Justice
delivery System. The researcher has tried to answer questions regarding
 What are the current problems of Justice delivery which leads to its delay?
 What are the reasons for such Problem?
 What is our position statistically in appointing no of Judicial Officers in
relation to pending cases?
 What could be the areas of reform?

1.4. Research Methodology:- The research method adopted by the researcher is

Doctrinal research wherein research has been primarily been through secondary
sources of Information. Various opinions of Jurist, eminent authors, and statistics
from Government Websites have been used to substantiate the research.

3
1.5. Object of the Study:- The Aim of undertaking this study is to explore the pinning
issues of delayed Justice conditions in India and its Impact on our ambitious drive to
make India a developed country. The following issues have been taken into
consideration in this respect:-
 To identify the gaps in accessibility of Justice
 To assess major reasons for the problems reoccurring in a structured way
 To analyse the scope of reforms which can be taken at present moment.
 To evaluate past reforms and suggest remedies
1.6. Coverage and Scope:- This paper analyses the opinion of various eminent scholars,
lawyers, the reports by various committees, the judgments of the Supreme Court and the
prevalent Indian conditions

4
 Chapter II
2.1. Overview
Long pendency of cases in Supreme Court, High Court and Sub-ordinate Courts has become a
matter of serious concern. 73% of our total jail population comprises of under-trials. In such a
scenario, justice that comes too late has no meaning. The prolonged and unending trial changes
the priorities of an accused person towards life. He can lose everything on account of the
pending proceedings. Therefore, speedy trial should be recognized as an urgent need of the
present judicial system in order to decide the fate of lakhs of litigants5.
Under Article 39-A of the Constitution, it is one of the most important duties of a welfare state to
provide dispute-resolution mechanisms that is accessible to all the citizens for resolution of their
legal disputes and enforcement of their fundamental and legal rights 6. It mandates the State to
ensure that the legal system promotes justice on the basis of equal opportunity without any
economic or other disabilities. The Law Commission of India, in its 14th fourteenth report
observed that unless some provision is made for assisting the poor man for the payment of court
fees and lawyer’s fees and other incidental costs of litigation, he is denied equality in the
opportunity to seek justice7.

Chapter III
3.1. Judicial Decision on Speedy Justice
One of the greatest challenges of the 21 st century is the failure of judiciary to deliver justice
expeditiously, which has brought about a sense of frustration among the litigants 8. Access to
justice to protect their fundamental rights is almost illusory for the weaker sections of our

5
ARORA B.L., LAW OF SPEEDY TRIAL IN INDIA, 22, (2006).
6
Article 39A, THE CONSTITUTION OF INDIA (1950)- The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
7
ALTERNATIVE DISPUTE RESOLUTION- WHAT IT IS AND HOW IT WORKS, 94 (Rao P.C. and Sheffield William eds.,
2002).
8
ANAND A.S., JUSTICE FOR WOMEN- CONCERNS AND EXPRESSIONS, 56, (2nd ed., 2003).

5
country due to their poverty, ignorance and illiteracy. The judiciary regarded it as its duty to
come to the rescue of the underprivileged9.
In East India Hotels Ltd. v. Syndicate Bank10 “It was held that long delay in disposal of cases
due to docket explosion became a ploy to scrupulous litigant to abuse the due course of law to
protract litigation and remain in unjust or wrongful possession of the property.” In K.K.
Baskaran v. State Rep By Its Secretary, Tamil Nadu & Ors; decided on 4 March, 2011, “the
Hon’ble Supreme Court held that the conventional legal proceedings incurring huge expenses of
court fees, advocate’s fees, apart from other inconveniences involved and the long delay in
disposal of cases in Courts, would not have made it possible for the depositors to recover their
money, leave alone the interest thereon.’’

In case of Hussainara Khatoon v. Home Secretary, State of Bihar 11, “the right to legal aid has
been specifically recognized as being a part of the fundamental right to life and liberty enshrined
under Article 21” of the Constitution of India. It was observed that “legal aid is really nothing
else but equal justice in action intended to reach justice to the common man. The Hon’ble
Supreme Court lamented that it is a travesty of justice that certain people end up spending time
in custody not because they are guilty but because the courts are too busy to try them, and they,
as the accused, are too poor to afford bail. In case of Raghubir Singh v. State of Bihar12, it was
held that the right to speedy trial is one of the dimensions of fundamental right to life and liberty
under Article 21 and to act fairly is one of the essences of the principles of natural justice.

In Bihar Legal Support Society v. Chief Justice of India 13, court observed that the weaker
sections of society have been deprived of justice for long due to poverty, ignorance and
illiteracy. The rights and benefits conferred by the Constitution have no meaning for them. Due
to their socially and economically disadvantaged position, they lack the capacity to assert their
rights. In case of Mihir Kumar v. State of West Bengal14, it was held that where a criminal
proceeding has been pending for fifteen years from the date of the offence it amounted to

9
Ibid at 49.
10
45 (1991) DLT 476 SC.
11
AIR 1979 SC 1369.
12
AIR 1987 SC 149.
13
(1996) 4 SCC 767.
14
1990 Cr LJ 26 (Cal).

6
violation of the constitutional right to speedy trial of a fair, just and reasonable procedure and
hence the accused was entitled to be set free. In the Common Cause" A Registered Society
through its Director v. Union of India and Ors 15, the Supreme Court issued another set of
guidelines to enable the release on bail of persons in custody whose trials had dragged on for
inordinately long periods.

In Khatri v. State of Bihar16, “the Supreme Court reiterated that the court has recognized the right
to legal aid as a Fundamental Right of an accused person by a process of judicial construction of
Article 21. It further observed that the State is under a constitutional mandate to provide free
legal aid to an accused person who is unable to secure legal services on account of being
indigent.” In A.R. Antulay v. R. S. Nayak17, “it was observed that fair, just and reasonable under
Article 21 creates a right for the accused and the guilt or innocence of the accused should be
determined as quickly as possible”. Again in J.P. Unni Krishnan v. State of Andhra Pradesh18,
“it was again held that right to speedy trial is covered under Article 21”. In case of Anil Rai v.
State of Bihar19, “it was held that justice should “not only be done but should appear to have been
done”. Whereas justice delayed is justice denied, justice withheld is even worse than that”. In
Chajju Ram v. Radhey Sham20, “the court refused to direct a retrial after a period of 10 years
having regard to the facts and circumstances of the case”. In case of T.V. Vatheeswaran v. State
of Tamil Nadu21, “court reiterated the significance of the right to speedy trial and extended it
even to post conviction stage. It was held that undue delay in carrying out the death sentence
entitles the accused to ask for lesser sentence of life imprisonment”. In case of D.K Basu v. State
of West Bengal22, “the Supreme Court issued guidelines in cases relating to detention arrest by
police. It was held that failure of compliance with these requirements shall render the concerned
police personnel liable for contempt of court”.

15
1996 AIR 1619, 1996 SCC (4) 33.
16
(1981) 1 SCC 627.
17
(1992)1SCC 225.
18
AIR 1993 SC 2178.
19
(2001) 7 SCC 318.
20
AIR 1971 SC 1367.
21
AIR 1983 SC 361 (2).
22
AIR 1997 SC 610.

7
 In case of All India Judges’ Association v. Union of India 23, “it was observed that independent
and efficient judicial system is one of the basic structures of our Constitution. If sufficient
number of judges were not appointed, justice would not be available to the people, thereby
undermining the basic structure”. In P. Ramachandra Rao v. State of Karnataka 24, “it was held
that the constitutional philosophy propounded as right to speedy trial has though grown in the
last two and a half decades but the goal sought to be achieved remains pending”. Again in
P.U.C.L. v. Union of India25, “it was observed that fair, open and speedy trial is the essence of
Article 21 of the Constitution”.
Chapter IV
4.1. Problems In The Justice Delivery System
“Litigation’, does not always lead to satisfactory results. A case won or lost in a court of law
does not change the attitude of the litigants who continues to be adversaries and go on fighting in
appeals after appeals”26. In spite of numerous rights and obligations provided to people under
legislation, justice still remains a distant dream for the lay person. A common man may
sometimes find himself entrapped in litigation for as long as a life time, and sometimes litigation
carries on even on to the next generation. In the process, the litigant may dry up his resources,
apart from suffering harassment. Those who are economically and socially disadvantaged see the
entire legal system as irrelevant to them27.

Litigants have identified the following six shortcomings with reference to adjudication by
courts28: (a) delay in resolution of the dispute, (b) uncertainty of outcome, (c) inflexibility in the
result/solution, (d) high cost, (e) difficulties in enforcement, (f) hostile atmosphere, (g) parties
have no control over the result of their dispute, (h) complex and indeterminable procedures, (i) it
harms relationships and causes emotional stress, (j) Legal case often fail to identify or address
the real issues involved in a dispute, (k) Legal practitioners are more concerned with winning
than finding the truth or solutions, (l) legal process actually increases conflict between the parties
23
AIR 2002 SC 1752.
24
AIR 2002 SC 1856.
25
AIR 2004 SC 456.
26
Ashwini Bansal, ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION, 3(2005).
27
Dr. S. Muralidhar, Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India,
International Conference on ADR, Conciliation, Mediation and Case Management, New Delhi (May 3-4, 2003)
available at: http://lawcommissionofindia.nic.in/adr_conf/Muralidhar_s_Speech.pdf (last visited on May 8,2015).
28
Panchu Sriram, MEDIATION PRACTICE & LAW, 3-5 (2011).

8
who come to have their differences resolved and (m) parties acquires a certain mindset and take
extreme positions get polarized and will therefore express their views in the most forceful way 29
ie: It is slow, expensive, and destroys relationships30.

4.2. Statistics on Pendency: Courts overburdened-

Delays are common due to which credibility of the system can be best explained by the famous
saying “Justice Delayed is Justice Denied” (William E. Gladstone). Justice still remains a distant
dream for the lay person and the justice delivery system is on the verge of collapse. “Litigants
are only interested in getting their dispute resolved as early as possible within a reasonable time,
through a process which is cheap, flexible and not based on rigid legal principles or
technicalities”31. Apart from delayed justice, there are two more issues of: (1) ‘docket exclusion’
i.e.: the injustice suffered by those who lack the means to access justice and (2) ‘succumbing en
route’ i.e.: those who come to court, after waiting for few years, and despite being in the right,
give up/abandon as they are unable to bear the cost and delay 32. The 2013 World Bank Doing
Business Report; an indicator measuring the effectiveness of national judicial systems ranked
India 186th out of the 189 surveyed countries on the ease of enforcing contracts. The following
table clearly shows the high level of pendency under which the formal legal system is unable to
cope with the insurmountable challenge of arrears.

Statistics on Pendency in various Courts (as on 03/01/2021)33

29
Jayakumar Y F, Conciliation and Family Dispute Resolution in Indian Legal System, THE IUP JOURNAL OF
ALTERNATIVE DISPUTE RESOLUTION, 17 (January, 2005).
30
GOODMAN ANDREW AND HARMMERTON ALASTAIR, MEDIATION ADVOCACY, xxii, (2010 ed.).
31
Sinha S.B., Mediation: Constituents, Process and Merit, 7(4) NYAYA DEEP, 31(2006).
32
Dr Arun Mohan, Access to Justice-Questions to Ponder Over, All India Law Teacher’s Congress National
Conference, Delhi.
33
National Judicial Data Grid, SUMMARY REPORT OF INDIA (03/01/2021), available at:
http://ecourts.gov.in/sivaganga/national-judicial-data-grid (last visted on 03 January 2021).

9
 Pendency CIVIL CRIMINAL Total
CASES CASES Pendency
Cases Pending over 10 years 7,39,492 24,14,242 33,88,702

Cases Pending (Between 5 to 10 years) 17,45,424 45,98,194 63,43,588

Cases Pending (Between 3 to 5 years) 18,10,266 47,96,226 66,06,487

Cases Pending less than 3 years 56,71,450 1,46,97,026 2,03,69,032

Total Pending Cases 99,66,632 2,65,05,688 3,67,07,809

4.3. Reasons For Delay And Inaccessibility Of Courts

Despite the above decisions it is a known fact that the Indian Judicial System suffers from the
problem of delays and docket explosion in disposal of cases. Justice turned into injustice where:

“Law grinds the poor and the rich men rule the law”34.

There are numerous direct and indirect costs of traditional litigation. As pointed by Fali S.
Nariman, “the ‘judgment factory’ has become over-commercialized”, and quite a large number of
cases are pending in various courts in India that can be attributed to this peculiar malady: ‘case
law diarrhea’35. With respect to the current state of legal system, the Supreme Court in Guru
Nanak Foundation v. Rattan Singh & Son observed36:

An alternative forum, less time consuming, less formal, more effective and speedy for resolution
of disputes to avoiding procedural hurdles lead to introduction of Arbitration Act, 1940.
However, lawyers laugh and legal philosophers usually weep for the way in which the
proceedings under the act are conducted and without exception challenged in courts.
Millions are unable to access the system of administration of justice due to various circumstances
including lack of awareness, cumbersome procedures, social or economically disadvantaged

34
Lalu Varghese, Panchayat Court as an ADR Mechanism: Effectiveness and Advantages, 11(4) NAYAYA DEEP 30,
(2011).
35
NARIMAN FALI S, INDIA’S LEGAL SYSTEM CAN IT BE SAVED, 142(2006).
36
AIR 1981 SC 2075.

10
position, etc. Some of the major reasons for spurt in litigation and problems in accessing justice
in India can be categorized under the following heads.

A. Influx of litigation: The population growth and awareness of rights in the people, has led to
a flood of people approaching the courts of law, for the realization of their rights and to settle their
conflict of interests. However the judicial system is not able to withstand the huge pressure of the
awareness and resultant case load. Arrears are multiplying in leaps and bounds over the top of which
our system is fraught with problems such as ‘low judge to population ratio’37.

B. Inordinate Delays and Expenses Involved: As stated above, litigation often involves huge
expenses that defeat the purpose of justice. Law hardly reaches the vulnerable sections of the society
where majority of the people are illiterate, rustic rural and ignorant about the existence of their legal
rights and remedies
C. State fighting the citizen: The government is the biggest litigant in the country. Around
70% of all cases are either agitated by the state, or appealed by it. The state fights cases against
citizens at the cost of citizens38.

D. Difficulty in accessing courts: It has been noted that people face problems in physically
accessing courts. Geographical distance of the courts is yet another reason behind people not able to
approach the courts. Certain matters can be filed only in the higher courts, long distances usually
deter people from pursuing legal battles for their rights.

E. Cumbersome procedures: Legal Procedures are often cumbersome, difficult to comprehend

and not litigant friendly that deter people from approaching courts39.The rules and practice with
regard to pleadings offer an incentive for mis-statements, misrepresentations, concealments and
confusion. There is absence of preparatory and pre-trial procedures that can reduce the width of the
controversy going to trial40.

37
VERMA J.S, NEW DIMENSIONS OF JUSTICE, 102 (2000).
38
Sridhar Madabhushi, ALTERNATIVE DISPUTE RESOLUTION NEGOTIATION AND MEDIATION, 57 (2011).
39
Kaul S. K., Access to Justice, 7(4) NYAYA DEEP, 86-87(2006).
40
Dr Arun Mohan, Access to Justice-Questions to Ponder Over, All India Law Teacher’s Congress National
Conference, Delhi, (2.9.2012).

11
 F. Understaffing/ vacancies: The functioning of the legal system has changes due to the
cropping up of new and diverse areas of litigation leading to immense increase in the quantum of
litigation and no solution for early resolution of dispute has been found out.

Our population and litigation has increased, but there has not been corresponding increase in the
number of judges41. The Law Commission in its 120th report, on ‘Man Power Planning in
Judiciary: A Blue Print’, submitted in July 1987 recommended optimum figure of 107 judges
per million by 2000 (the ratio achieved by USA in the year 1981). It also recommended a ratio of
50 judges per million of population, within a period of 5 years (it is 12 - 13 judges per million).
With this ratio the arrears are mounting42.
4.4. Judges Strength at various levels as on 01. 12. 202043

Sl. No. Name of the Court Sanctioned Strength Working Strength Vacancies
A. Supreme Court of India 34 30 04

B. High Court Pmt. Addl Total Pmt. Addl Tota Pmt. Addl Total
l
1 Allahabad 120 40 160 83 14 97 37 26 63
2 Andhra Pradesh 28 09 37 19 0 19 09 09 18
3 Bombay 71 23 94 49 15 64 22 08 30
4 Calcutta 54 18 72 33 02 35 21 16 37
5 Chhattisgarh 17 05 22 13 01 14 04 04 08
6 Delhi 45 15 60 30 0 30 15 15 30
7 Gauhati * 18 06 24 17 03 20 01 03 04
8 Gujarat 39 13 52 30 0 30 09 13 22
9 Himachal Pradesh 10 03 13 09 0 09 01 03 04
10 High Court for UTs of 13 04 17 12 0 12 01 04 05
J & K and Ladakh
11 Jharkhand 19 06 25 17 0 17 02 06 08
12 Karnataka 47 15 62 26 20 46 21 -05 16

41
Bhosale Dilip B, An Assessment of ADR in India, 6(4) NYAYA DEEP, 22(2005).
42
It is 130 to 150 per 10 lakh people in advanced countries, about 75 per million in Canada and 107 per million in
USA. See, Betwa Sharma, These Damning Figures About The Indian Judiciary Will Make You Want To Cry Too,
HUFFINGTON POST, (25 April 2016), available at: http://www.huffingtonpost.in/2016/04/25/these-damning-figures-
about-the-indian-judiciary-will-make-you-w/ (last visited 02-01-2021).
43
Ministry Of Law And Justice, Lok Sabha, Appointment of Judges, Starred Question No. 45(23 July 2015),
available at: http://164.100.47.192/Loksabha/Questions/QResult15.aspx?qref=19185&lsno=16 (last visited on 03
Jan. 2021).

12
13 Kerala 35 12 47 30 07 37 05 05 10
14 Madhya Pradesh* 40 13 53 30 0 30 10 13 23
15 Madras 56 19 75 53 0 53 03 19 22
16 Manipur 04 01 05 04 01 05 0 0 0
17 Meghalaya 03 01 04 04 0 04 -01 01 0
18 Orissa 20 07 27 15 0 15 05 07 12
19 Patna 40 13 53 22 0 22 18 13 31
20 Punjab& Haryana 64 21 85 42 11 53 22 10 32
21 Rajasthan 38 12 50 23 0 23 15 12 27
22 Sikkim 03 0 03 03 0 03 0 0 0
High Court for the State 18 06 24 14 0 14 04 06 10
23 of Telangana
24 Tripura 04 0 04 04 0 04 0 0 0
25 Uttarakhand * 09 02 11 08 01 09 01 01 02
Total 815 264 1079 590 75 665 225 189 414

G. Cumbersome procedures: The procedures prescribed by law are often cumbersome,

difficult to comprehend and not litigant friendly that deter people from approaching courts 44.The
rules and practice with regard to pleadings offer an incentive for mis-statements, misrepresentations,
concealments and confusion. There is absence of preparatory and pre-trial procedures that can
reduce the width of the controversy going to trial45.

H. Understaffing/ vacancies: The functioning of the legal system has changes due to the
cropping up of new and diverse areas of litigation leading to immense increase in the quantum of
litigation and no solution for early resolution of dispute has been found out.

I. Judge made delays: Lack of punctuality and laxity contribute to the delay in disposal of
cases. The grant of unnecessary adjournments adds on to the problem of delays46.

44
Kaul S. K., Access to Justice, 7(4) NYAYA DEEP, 86-87(2006).
45
Dr Arun Mohan, Access to Justice-Questions to Ponder Over, All India Law Teacher’s Congress National
Conference, Delhi, (2.9.2012).
46
International Center for Research on Women, Washington, DC, Domestic Violence in India a Summary Report of
Three Studies: Violence against Women in India: Evidence from Rural Gujarat, 57 (1999).

13
J. Advocates made delays: “It is often seen that the Lawyers contribute to delayed
litigations resulting in backlog. Reluctance of advocates to settle cases, stemming from their fear
that they may lose the fee, if the case is settled” 47. Lawyers instead of reaching out to litigants
exploit and prey upon them. Lots of cases are stimulated by the lawyers who are either nor
required or could have been solved amicably. There is a lot of lawyer’s stimulated litigation.
Cases which would have been solved amicably linger on for years. Delaying tactics of Advocates
like adjournments, concentration of work, pass over; non-compliance with time schedule,
frivolous suits, absence of preparedness, and lack of punctuality in appearance all must be
viewed seriously.

K. Proliferation of Appeals: According to Nani A. Palkhiwala, “the court is no longer

looked upon as a cathedral but as a casino: if you are dissatisfied with the trial court’s judgment,
you double the stakes and go to the Division Bench; if you are dissatisfied with the Division
Bench judgment, you treble the stakes and go to the Supreme Court”. Litigation involves lot of
delay given the appeal/ revision/ review making the entire process expensive48. There is an
unending list of several cases where judgments were delivered by courts after a long time. In
some of the High Courts, final hearing is becoming a rare event49.

L. Adjournments and concentration of work: An unnecessary adjournment on frivolous

grounds also extends the life of litigation50. To bring accountability to the judicial system it is a
good step that now the judges Annual Confidential Reports (ACRs) that was based on weight
age system will evaluated on the quality of judgments, number of cases disposed of etc. with
negative marking for giving unnecessary adjournments 51. Further, concentration of work with a
few senior advocates is yet another reason for increase in delays 52. “Strikes and boycott from
work by advocates and other staff adds to pendency. Sky rocketing and mounting arrears issue is

47
Raveendran R.V, Mediation-Its Importance and Relevance, 8 SCC (J), 12 (2010).

48
LAKSHMANAN A.R, VOICE OF JUSTICE, Vol. 2, 261, (1st ed. ALT Publications, Hyderabad, 2007).
49
CHAUDHARY VKS, THE IVORY TOWER FIFTY ONE YEARS OF THE SUPREME COURT OF INDIA, 239(2002).
50
James Lizzy, Family Counselling in Family Court: An Analysis of Psycho-social Dynamics of
Families of Litigants, 214 (Thrissur Family Court, Discussion Paper No. 13, Kerala Research Programme on Local
Level Development, Centre for Development Studies, Thiruvananthapuram 1999).
51
Judges Appraisal To Depend On Disposal Rate, THE TIMES OF INDIA, 19 (New Delhi ed., July 6, 2013).
52
Madabhushi Sridhar, Alternative Dispute Resolution-Negotiation and Mediation, 58(2011).

14
one of the areas where very effective and strong urgent actions are warranted” 53.. To make rule
of law a reality, assurance of speedy justice should be extended to citizens..

M. Other reasons for delays and pendency: The other reasons that contribute to delays and
pendencies are;

 Writ jurisdiction of high court is invoked frequently

 Strikes and indiscriminate closure of courts
 Imperfect legislations
 Delaying tactics of litigants like not filling documents in time, seeking adjournments
 Lack of priority for disposal of old cases
 Lack of effective case law management.
 Poor and corrupt police investigation
 Unsatisfactory selection of government counsels.
 Meagre allocation of expenditure for the judiciary.
Chapter VI
6.1. Need For Speedy Resolution- Areas Of Reform

There are certain policy interventions that need to be urgently initiated for curbing the court
delays.
1. ADR- The Missing Link: “Due to globalization and liberalization, the need for speedy
resolution of disputes in business is increasing”54. “The emergence of alternative dispute
resolution has been one of the most significant movements as a part of conflict management
and judicial reform, and it has become a global necessity”55. “The focus is generally not on
the forum, but on the nature of the process and on the possible outcome” 56. “The concept of
ADR originated in the United States. Inspired by USA, several other countries including

53
Bhatt J.N., Judicial Cardiogram, 7(3) NYAYA DEEP, 70 (July 2006).
54
Murphy B.S., ADR Impact on International Commerce, 48(4) DISPUTE RESOLUTION JOURNAL, 70(Dec. 1993).
55
Justice Jitendra N. Bhatt, A round table justice through Lok-Adalat (People’s Court)-A vibrant ADR in India, 10,
(2002) 1 SCC (J).
56
J.C.GOLDSMITH, ARNOLD INGEN-HOUSZ, ET. AL., ADR IN BUISNESS: PRACTICE AND ISSUES ACROSS COUNTRIES AND
CULTURES, 7(2006).

15
 Australia, Canada, Germany, Holland, Hong Kong, New Zealand, South Africa, Switzerland
and the United Kingdom have initiated their own ADR mechanism regimes” 57. ADR has
been successful in many countries to that extent that over 90 % of the cases are settled out of
the court. Thus there is a need to promote the Alternative Disputes Resolution Methods and
publicized for easing Courts burden. Wide publicity and promotion should be given to the
ADR.

2. Role of Judiciary: Law enforcement should be done by the co-ordinated efforts of police
administration and judiciary. Lack of punctuality in appearance by parties and their
Advocates must be viewed seriously. Delaying action by the rival parties should be checked.
It is required that the strength of judges should be increased along with improving the
infrastructure. The judges should be trained about the techniques of Court management and
case management for better administration of cases. Increasing Court’s working days or
hours, giving stays and adjournments in exceptional circumstance, curbing the creative
expansion of writ jurisdiction and tendency on the part of some of the judges to leniently
admit ordinary disputes and grievances and another areas of concern. There is a need to
streamline the judicial appointments by ensuring transparency in the process and
appointments.

3. Role of Advocates: It is also required that the Lawyers should change their mindset of
exploiting litigants. Promote Alternative Dispute Resolution, special qualifications to be a
lawyer at Mediation/ Family Courts/Counselling Centre should be prescribed. Lawyers’
lobby organise protests against interventions aimed at improving the judicial system. Judicial
backlog and delays allows them to extract fees so they show non-cooperation. Lawyers
representing disputes have an obligation and social responsibility of helping the ignorant and
the underprivileged to attain justice.

4. Change the Crime Investigation and Police investigation process: It is also expected that
the Crime Investigation by the police forces should be made more scientific. Errors in police
investigation or unnecessary time delays must be checked. Police should be trained to be
57
Justice S. B. Sinha, Mediation: Constituents, Process and Merit, 7(4) NYAYA DEEP, 31 (Oct 2006).

16
 respectful and courteous towards women in distress. They should inspire greater confidence
in women. Capacity building, for handling delicate issues, among police personnel should be
undertaken. If possible, only women police officials should be allowed to handle cases
involving women. Networking among police stations should be increased and above all the
police reforms should be undertaken.

5. Effective Tribunal system: The Tribunal system was evolved as an alternative to the regular
Courts. It is cost effective and expeditious in comparison to the regular Courts. Unlike the
Courts, the Tribunals may have a mixed composition consisting of persons with judicial
experience and those without such experience.58Some of the important Tribunals in India
include the Income-tax Appellate Tribunal, the Debt Recovery Tribunals, Industrial Tribunal
or Labour Court and others. There is a need to make the Tribunal system more effective.

6. Reduce government litigation: Section 80 of Civil Procedure Code, 1908 states that no suit
will be instituted against Government or public officer unless a notice of two months has
been delivered at the Government office stating the cause of action and other particulars
before enforcing the claim in the Courts. The reason is to avoid recourse to the Courts and to
settle claims amicably without litigation59, and that if it so wished can settle the claim without
litigation60 after considering its legal position.61 Thus there should be a strict legal compliance
with this provision aimed at amicably resolving the disputes.

CONCLUSION

Right to litigate and access to justice are the two important ingredients of our Constitutional
guarantees. But due to efflux of litigation the conventional litigation machinery is not able to
bear this pressure. The judicial system is expensive and time consuming diminishing people’s
faith in the legal system. It still functions under the outmoded mechanisms. There is a growing
58
SATHE S. P., THE TRIBUNAL SYSTEM IN INDIA, 10, 1996.
59
Amar Nath v. Union of India, AIR 1963 SC 424.
60
Ghanshyam Dass v. Domination of India, 1984 AIR 1004, 1984 SCR (3).
61
Raghunath Das v. UOI, AIR 1969 SC 674.

17
need to find out the other modes that are speedy and less costly. Therefore, it is essential that
urgent reform should be undertaken to regain the faith of the common man in the judiciary. If
such reforms are introduced it will surely make the litigation system more accountable,
accessible and sensitive to the poor. These innovations and interventions will also release the
Court from the long shadow of backlog that leads to denial of justice which plagues the current
court system in India.

References

 Balakrishnan K.G., Judiciary in India: Problems and Prospects, 50 JILI 462, (2008).
 ARORA B.L., LAW OF SPEEDY TRIAL
 Balakrishnan K.G., Judiciary in India: Problems and Prospects, 50 JILI 462, (2008)
 ARORA B.L., Law Of Speedy Trial In India, 22, (2006)
 Anand A.S., Justice For Women- Concerns And Expressions, 56, (2nd Ed., 2003).

18
 Panchu Sriram, Mediation Practice & Law, 3-5 (2011).
 Lalu Varghese, Panchayat Court as an ADR Mechanism: Effectiveness and Advantages,
11(4)
 Nariman Fali S, India’s Legal System Can it be Saved, 142(2006)
 Verma J.S, New Dimensions of Justice, 102 (2000).
 Sridhar Madabhushi, ALTERNATIVE DISPUTE RESOLUTION NEGOTIATION AND

MEDIATION, 57 (2011).
 Kaul S. K., Access to Justice, 7(4) NYAYA DEEP, 86-87(2006).
 Dr Arun Mohan, Access to Justice-Questions to Ponder Over, All India Law Teacher’s
Congress National Conference, Delhi, (2.9.2012).
 LAKSHMANAN A.R, VOICE OF JUSTICE, Vol. 2, 261, (1st ed. ALT Publications,
Hyderabad, 2007).
 CHAUDHARY VKS, THE IVORY TOWER FIFTY ONE YEARS OF THE SUPREME COURT OF

INDIA, 239(2002).
 Bhatt J.N., Judicial Cardiogram, 7(3) NYAYA DEEP, 70 (July 2006).
 Justice S. B. Sinha, Mediation: Constituents, Process and Merit, 7(4) NYAYA DEEP, 31
(Oct 2006).

19