‘Concept and Need of Law and Courts Management in India'

Clinical Course - IV

Submitted by

Name: Anadi Gupta

Student ID: 20179179

B.A. LL.B. (X Semester) (Regular/Self-Finance)

Faculty of Law, Jamia Millia Islamia

Submitted to: Dr. Ghulam Yazdani, Associate Professor (Faculty of Law,

Jamia Millia Islamia, New Delhi)

(31/05/2022)
 ACKNOWLEDGEMENT

I have made efforts in this project. However, it would not have been possible
without the kind support and help my respected teachers. I would like to extend my
sincere thanks to all of them.

I am highly indebted to my teachers for their guidance and constant supervision as

well as for providing necessary information regarding the project & also for their
support in completing the project.

I would like to express my gratitude towards my parents for their kind co-operation
and encouragement which help me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project and

people who have willingly helped me out with their abilities.
 Introduction

The term “Law’ denotes different kinds of rules and Principles. Law is an
instrument which regulates human conduct/behavior. Law means Justice, Morality,
Reason, Order, and Righteous from the view point of the society. Law means
Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of
legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and
Injunctions from the point of view of Judges. Therefore, Law is a broader term
which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice,
Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts,
Injunctions, Tort, Jurisprudence, Legal theory, etc.

“The greatest drawback of the administration of justice in India today is delay... I

am not aware of any country in the world where litigation goes on for as long a
period as India” Nani Palkhiwala in “Delays in Administration of Justice” 1

The issues of delays and pendency have been the bone of contention for the Indian
Judiciary for a long time. Since the last 5 decades, the Judiciary, the Ministry of
Justice, eminent thinkers and jurists have mooted several strategies to tackle the
issues of delays and pendency in India. Hon‟ble Justice Madan Lokur, Judge,
Supreme Court of India had once remarked that quantifying pendency of cases
would be a rude shock. He went on to state that with crores of cases already
pending disposal, it would take more than 300 years to clear the backlog and that
too if no new cases are registered during that time.2 This is just an indication of the
immense load that our Hon‟ble judges handle and the pressure they experience in
order to clear as many cases as possible. It is recognized that India requires proper
case management and also court administration systems to achieve the goal. There
is no doubt that there have been many positive actions from our legislators and the

1
Quoted in, Justice R. B. Mehrotra, “Court Management”
2
Justice Madan B. Lokur “Case Management and Court Administration
 judiciary to keep pendency at its minimum. Besides increasing the number of
courts, appointment of Judges, appointment of court staff, specialized work force,
modernization/digitization etc. changes such as over hauling the Criminal
Procedure Code, setting up of several Tribunals, experimenting with Alternate
Dispute Resolution mechanisms like setting up of Mediation centers at several
District Courts have already been incorporated. One of the more innovative
introductions to the schema of Indian Judiciary has been the introduction of court
managers. Coupled with the need for effective and efficient court management
practices, a lot of impetus is also given to computerization.

What is Law?

Do we ever think about it that what would happen if there is no law in society or in
the state? I think it is difficult to survive if there is no law in the state or society. We
always need laws to protect ourselves or others. Law is an ancient term as the society
when society first-ever developed than we needed the law to regulate society or we
can say for the Administration of Justice.

Without law, we can't imagine regulating any state or society, without it we do not
have civilization; we have chaos. Law is meant to protect people and property from
harm. Without laws or rules, we can't imagine regulating any state or society. We can
say that to survive with dignity and morality we need the law. Law governs much of
what everyone does, day in and day out. It tells us what our rights and duties are, also
with that it also tells punishment for breaking the law.

So, we all know that we require the law to regulate ourselves, it is a primary thing
that a society or state requires. In day-to-day life, we always listen to the law, we
follow laws but ever we think about it that what is the law, and what is the definition
of it? Did we ever think about it?

Whenever someone asked ourselves that what is the law then we commonly
answered that the law is common sense, don't we? Yes, Law is indeed common sense
because it is based on human Morality and Morality means sense of right and wrong
i.e, common sense.

What is Court Management?

It encompasses many facets of administration of justice. Ultimately

court management may be defined as the application of processes and
procedures in a legal forum that address the needs of our communities
through timely and expedient case disposition, provides a forum for
fairness and equality in an environment founded on integrity; and
ensures access to our courts for everyone. Only when we are successful
in fulfilling these goals and objectives will the public’s trust and
confidence in our courts rise.

Listed below are Eight Purposes of Courts as defined by Mr. Ernest

Friesen, former director of the Administrative Office of United States
Courts and founder of the National Judicial College:-

1. To do individual justice in individual cases

2.To appear to do justice in individual cases
3.To provide a forum for the resolution of legal disputes
4.To protect citizens against the arbitrary use of Government power
5.To make a formal record of legal status
6.To deter criminal behavior
7.To help rehabilitate persons convicted of crimes
 8.To separate persons convicted of serious offenses from society

Aspects of Court Management

The institutional framework within which the Indian courts operate has
historically neglected the concepts of management and sound administration.3 It
has been widely accepted across jurisdictions that the utilization of managerial
skills in administering the courts can help reduce the pendency rates of both civil
and criminal cases. Trained personnel, however have to work in tandem with the
District Judges and Chief Judicial Magistrates to achieve the desired goal. With the
gradual increase in literacy rate and economic wealth, filing of cases is bound to
rise and more so at the lower level. Therefore, the lower courts and particularly the
District court judges need to ensure professional management of their courts.
“Court management” is inclusive of entire set of actions that a court takes to
monitor and control the progress of cases, from initiation of a case to trial. It is the
tool to pursue the institutional mission of resolving disputes with due process and
in due time.

3
“Effective District Administration and Court Management”, Hon‟ble Mr. Justice P.Sathasivam, Judge, Supreme Court
of India on 15.06.2013 at Tamil Nadu State Judicial Academy during the Special Training Programme for all District
Judges and Chief Judicial Magistrates
There are various aspects of court management:
●Upgrading of court management system through ICT.
● Moving from manual to electronic data system

● Making the lower court judges take responsibility and lead the court in
determining the administrative policies for effective working of the courts.

● Undertaking appropriate case management system to monitor caseloads and

trends and to identify problems that cause delay in the trial.

● Prioritizing old cases to ensure that the cases pending for more than 2 years
or 5 years are disposed first.

● Entrusting administrative functions of the court to professionals (court

managers) under the guidance of the presiding judge.

● Inspecting the sub-ordinate courts

● Planning the budget

● Arranging meetings between Police and District Judge in order to synergize

two bodies.

Now will discuss on these aspects and problems related to court management in
detail-
 Status of Judicial Delays in India
Everlasting cases, prolonged delays, inexorable adjournments, high litigation costs
annihilate the common man‟s confidence and trust in the justice delivery system of
the country. While it is unpardonable to compromise on the temporal requirements
of ascertaining facts and listening to arguments, time lapse in the pre-requisites and
procedural formalities of the Court can be reduced. As Chief Justice Burger has
noted: "A sense of confidence in the courts is essential to maintain the fabric of
ordered liberty for a free people and three things could destroy that confidence and
do incalculable damage to society: that people come to believe that inefficiency
and delay will drain even a just judgment of its value; that people who have long
been exploited in the smaller transactions of daily life come to believe that courts
cannot vindicate their legal rights from fraud and over-reaching; that people come
to believe the law in the larger sense cannot fulfill its primary function to protect
them and their families in their homes, at their work, and on the public streets"4

4
Justice Madan B. Lokur Judge, Delhi High Court “Case Management and Court Administration”, Justice Madan B.
Lokur Judge, Delhi High Court, 29/05/2003, available at
http://lawcommissionofindia.nic.in/adr_conf/Justice_Lokur.pdf.
Four Major reasons cited for judicial delays are:
a)Paucity of judges and court staff

b)Inefficiency of the case management system

c)Apathy towards use of technology in justice deliverance

d)Absence of work culture in court rooms

e)Predominance of „Adjournment culture‟ in litigation

f)Poor judges to population ratio (1 judge in every million)

g) Inadequate infrastructure and ill-trained court staff Statistics reveal that

2/3rd of the pending cases are criminal in nature which has led to over-crowded
prisons with more than sixty-eight percent of the prison population still on remand.
This questions the notion of justice since the possibility looms large that many
under-trials might end up doing their full sentence without a full and fair trial. This
plight has won India 142nd rank (out of 189 countries in the world) on The World
Bank‟s Index of 'Ease of Doing Business.

One of the key reasons cited by World Bank for this poor rank was the large
pendency of cases in Indian courts and non-implementation of judicial reforms.

The World Bank, in its report submitted to the department of industrial policy and
promotion (DIPP) has even suggested useful reforms that can be introduced to
improve the situation through measures like performance evaluation system of
judges; performance management evaluations to assess the liberal grant of
adjournments etc. The report suggests India study the court management models of
high ranking countries such as Malaysia (Rank: 18) and UAE (Rank: 22) in order
to address the backlog issues. This very aspect has been the cynosure of
discussions in several Law Commission Reports.5

5
P. Ramchandra Rao V. State of Karnataka, (2002) 4 Scc 578.
 Delay In disposal of cases
Nani Palkhiwala in his Article “Delays in Administration of Justice‟ wrote, “The
greatest drawback of the administration of justice in India today is delay... I am not
aware of any country in the world where litigation goes on for as long a period as
India…. The law may or may not be an ass but in India it is certainly a snail… The
fault is mainly of the legal profession. We ask for adjournments on most flimsy
grounds…..” There are good number of cases which remain pending for 30 years
or more in different hierarchy of courts and even after the decision of dispute up to
Supreme Court the matters remain pending for good number of years on execution
side.

As has already been stated, courts alone cannot be blamed for this inordinate delay
in disposal of cases, there are many factors responsible for it, which are beyond
control of the courts-one of them, as indicated by Mr. Palkhiwala- “greatest
contribution for causing the delay in disposal of case is that of lawyers”. The courts
have no control over the lawyers, their disciplinary control is with Bar Councils.6

6
Quoted in, Justice R. B. Mehrotra, “Court Management”, J.T.R.I. Journal, First Year, Issue 3, July – September, 1995.
Sub classifications of the problem of delay in disposal of cases
Adjournments
The problem of a litigant in getting delayed justice begins right from the level of
District Court. The procedure of the District Courts is so slow going and
expensive, that every sensible man tries his best to avoid knocking the door of the
Court. There are various reasons for delay in disposal of cases in the District
Courts but the foremost amongst them is repeated adjournments of cases. One
party is always interested in delaying the disposal of cases, such party adopts all
possible methods for getting the case adjourned. The High Court should issue some
specific instructions laying down the time limit and norms for granting
adjournments. According to me, no suit should be adjourned more than twice on
the third occasion the court should fix the hearing of the case peremptorily. A
peremptorily fixed case should not be adjourned except in exceptional
circumstances, the judge adjourning a peremptorily tried case should record
reasons for adjourning the case and should also ensure that the case is disposed of
within a month from the date it was fixed for peremptory hearing.

The High Court should come forward to solve the problem by Issuing
specific direction in this regard laying down that cases will not be
adjourned more than twice even on personal ground of lawyer or
lawyer's strike. Unless some such drastic measures are adopted, the
problem of delay in disposal of cases cannot be sorted out.
 Injunction orders
Due to long pendency of suits, the interim injunction orders are very vital and
important. Exparte Injunction orders remain pending for years even after the
defendant's putting in appearance and filing objections to the exparte injunctions.
The judicial officers most of the time carry this Impression that It is the discretion
of the Court to pass exparte Injunction for safeguarding the Interest of the plaintiff.

Irresponsible passing of exparte injunction order leads to, many misgiving which
also sometimes creates doubts on the integrity of judicial officer passing such order
without proper reasons. Whenever the integrity of a judicial officer is doubted, it
erodes the confidence in the system. For maintaining this confidence in the system
it is necessary that all orders which are passed by judicial officers in their
discretionary jurisdiction should be informed with reasons and be transparent, may
it be an order of Injunction pending a civil case or an order granting bail to an
accused pending trial.7

Miscellaneous cases

A subject wise classification will call for consideration of disposal of

miscellaneous applications in the suit, they are numbered as miscellaneous cases.
These miscellaneous cases arise of applications moved by the parties for
restoration of cases dismissed in default for substituting the heirs of deceased party,
applications for setting aside the exparte decree, applications for amendment of
pleadings and so on. All these applications are disposed of on the basis of
affidavits. Long pendency of these miscellaneous applications also results in delay
in disposal of suits. For all these class of applications, a separate concise statement
of principles of law, should be available as a ready reckoner with every judicial
officer laying down the guidelines for disposal of such cases. These guidelines

7
Policy and action plan, National Court management systems (NCMS), NCMS committee, Supreme Court of India,
2012, available at http://supremecourtofindia.nic.in/ncms27092012.pdf, accessed on 29-07-15.
should be drawn out on the basis of up to date case law decided in this regard.

Disposal of old cases on priority basis

It has been brought to my notice that many times the Courts instead of giving
preference to decide old cases, choose to decide cases with an eye on completing
their quota as per norms fixed by the High Court for disposal of cases. Mostly the
judicial officers complete their quota of disposal of cases by deciding suits exparte,
Sessions trial and criminal cases where prosecution witnesses have turned hostile
or complainant has compromised or civil suits where the parties have compromised
or there is only formal contest. It is the obligation of the Court to dispose of old
cases on priority basis. There are clear directions to that effect. The High Court
should issue positive instructions that decision of cases of the category referred to
above will be treated as 1/4th of the case decided. This may encourage decision of
old contested cases.

Execution cases

It is a sad story that even at the execution stage the case remains pending for years.
There should be positive direction that execution cases will not be adjourned more
than once on any ground whatsoever. Execution cases should also be separately
classified in the cause list, and time be allotted for doing such cases.
 Modernizing Copying department in Courts

Now a Photostat machine is available in every court which can prepare the copy of
any document within seconds, there is no justifying reason for preparing the copies
from old system
i.e. one person copying the document normally by hand and the other comparing,
this is not only obsolete but Is waste of human energy. In my last inspection to my
district I was shocked to listen the complaint from a person that his application for
copy of document is pending for last 1- 1/4 year. The explanation for the delay as
given out was that since the document is in Urdu and no Urdu knowing clerk is
available in copying section, the copy could not be prepared.8 No such explanation
is available after invention of Photostat machines. Continuing with the age old
procedure does create a wrong impression in a litigant that no work can be done
easily in courts, may it be obtaining copy of a document. Imagine the plight of a
person who has to wait for more than a year in getting copy of the document. With
the installation of photostat machines, no application for copy should be allowed to
remain pending for more than three days.

8
Ref: National Judicial Infrastructure plan; Chief Justices conferences 2007, 08, 09.
 System of Process-serving unsatisfactory

On frequent occasions, we come across complaints that process-server has

submitted a false report, sometimes the complaint is that summons have been
served on fake person-impersonating the real defendant. There is no counter check
for ascertaining the correctness of the allegations. Normally, it is against human
conduct that a person even after knowing that he has been summoned in a Court,
where he has been sued, will refuse to accept notice and will take a risk of being
proceeded exparte, but then there can be exception to this rule, there may be clever
persons who may willfully absent themselves with a hope that exparte decree will
be set aside.

In the changed circumstances some system of counter checking the process serving
system should be introduced, like publication of weekly court news at district level
wherein the list of cases wherein notices have been issued to defendants should be
published in state language. It should be ensured that at least one month's notice is
given to concerned party. The copies of weekly court news should be pasted
compulsorily on the notice boards of all the courts, at ZiIa Panchayat, Nagar
Panchayat, Block headquarters, Tashil headquarters and Gram Panchayat offices.
Some judicial officer should check occasionally as to whether the court news is
being demonstrated on various notice boards. The costs of the publication should
be borne by plaintiff unless the court exempts. In due course this system will have
counter check on false service of summons.9

9
Report of the Committee on reforms of the criminal justice system, Government of India, Ministry of Home Affairs,
Vol. 1, March 2003, available at
http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf , accessed on 29-
07-15.
 Bail applications and Remand order
The Magistrates and the Judges disposes of bail applications of serious
non-bailable offences, after the accused and his advocate make a grievance that
they have not been properly informed that in what connection they have been
arrested, they are not furnished the copy of F.I.R., nor they are permitted to inspect
the case diary maintained by Investigation Officer for contesting their remand
order and also for making submission on their ball application.

It shall be the duty of the Magistrate, before whom the arrested person is produced,
to satisfy himself that these requirements have been complied with," In many
remand orders the directions of the Supreme Court are not compiled with and
necessary endorsement to the said effect Is missing In remand order. Under Section
167 Cr.P.C. the Magistrate remanding the accused to judicial or police custody is
under an obligation to satisfy itself by examining the case diary that there is
material on the basis of which accused has been apprehended in the alleged
offence. I am of the opinion that a material which the Magistrate examines before
passing the remand order, the accused is also entitled to know the material of the
case diary to contend that no case for remand is made out. It is the right of the
accused to inspect the police case diary at the stage of his remand and such a right
is also inherent in Art. 21 of the Constitution of India. Since the accused and his
lawyer are not permitted to inspect the case diary officially at the stage of arguing
bail application -contesting remand, they adopt illegal means for such inspection,
all this reflects on the judicial system. We must endeavour to rule out such systems
which compel a litigant to adopt wrong methods for achieving the just cause.10

10
P P Rao, “Access to justice and delay in disposal of cases”, Indian Bar Review, vol. 30, 2003, p.208.
Daily Cause list: Classification of cases

Whatever I have suggested will remain an illusion or will be rejected as

impracticable unless the court's daily cause list is drawn on scientific basis, with
the help of computer. Till the facility of the computer is not available the task will
require a specialized training and scientific planning for fixing cases. An improper
handling of preparation of cause list will frustrate all suggestions.

All cases of the Courts should be classified in different heads, like

i. Peremptorily fixed cases

ii. Cases where arguments have been heard in part.
iii. Old cases
iv. Cases where parties have arrived at compromise or there is a formal
contest
v. Miscellaneous cases
vi. Sessions trial

vii. Bail applications etc.

For hearing each class of case a reasonable time schedule should be drawn up,
the Court should try to maintain the time schedule, in case the case is not taken
up in the fixed time schedule, it should be a rule that it will be taken up next day
in the same time schedule. This system will ensure disposal of cases as
suggested earlier. The litigant and lawyer will know as to at what time his case
is to be taken up which will avoid unnecessary waiting for whole day by a
litigant -he may attend the court only for the fixed time schedule. This system
will facilitate disposing of peremptorily fixed cases, miscellaneous cases,
 execution cases and old cases on priority basis as suggested earlier.11

Methods to Reduce Backlogs

Given the stratified organization of the court and the massive workload, the
importance of planning cannot be underrated. Strategic planning complemented
by efficient paralegal staff would significantly impact both pendency and
judicial reforms since it has four vital uses:

i. Guide decisions about budgeting and allocation of resources.

ii. Inform the court managers about performance of the individual units or
individuals.

iii.Bind judges and staff in sense of an organization and its goals.

iv. Assist in responding to individual issues as they arise.

Computerization
In Supreme Court have been computerized, simply by a press of button in any part
of the country where the Supreme Court computer system is connected with
satellite, one can know that when a particular case pending in the Supreme Court
will be heard. Likewise all decisions of Supreme Court have been computerized
and you can get the information about anyone of them again by pushing a button
where Supreme Court computer system is connected with a satellite. All these are
wonders of computer's application in judicial system. Many software floppies are
available in market where case law have been digested subject wise. Some very
useful suggestions on the use of computers In courts with regard to management
Information system have been given by

11
Maria Dakolias, “Court Performance Around the World: A Comparative Perspective”, Volume 2, Issue 1 Yale Human
Rights and Development Journal, 2-18-2014
 Justice J.K. Mathur In his Article: “Court Management- A prospect” published In
Post Centenary Silver Jubilee Volume of Allahabad High Court, of course his
suggestions are primarily for dealing with the arrears of High Court but the use of
computers at present is imperative at the District level. The entire information,
about laws, precedents and writing should be fed in the computers, the software
floppies should be classified on the basis of classification of cases done for their
disposal. The print out of the computer with legislative provisions and latest
decision should be made available to Judge like ready reckoner for knowing as to
what tax you are required to pay on a particular income. All this require pooling of
heads and research on subject.12

12
LAW COMMISSION OF INDIA Report No. 245, ARREAS AND BACKLOG : CREATING ADDITIONAL JUDICIAL
(WO)MANPOWER July, 2014
Conclusion

I suggest that right now the Institute should begin a course of Court Management
through computers and judicial officers should be trained in the subject. The
humble beginning can be by providing one computer to each district and linking it
with Supreme Court Computer section by satellite. I have full faith and trust in the
capacity ability, tact and learning of the present Director of the Institute that he will
complete stupendous and huge task. Whatever I have said above is only a small
fragment of huge problem. My suggestions are aimed to invite attention of the
concerned people to think over the subject on the lines suggested above along with
other ideas. I confess that I have no specialization or expertise on the subject, these
are the ideas on the basis of which experts may pool their heads together to find
out the solution of the problem with which the country is faced – i.e. the Judiciary
is at the verge of collapse. Let us do our best to save it