Delayed Justice

“Justice Delayed is Justice Denied” –this dictum postulates that a delay occurring in the process of administering justice without having a vital reason behind it represents an unconscionable negation of justice. Delivering justice within a specific time span should be the ultimate aim of the judicial system. There are wide connotations of justice which the courts need to administer in accordance with law & procedure. Laws are generally categorised under two heads in a society – Procedural law &Substantive law. Citizens’ right & obligation are determined by substantive law while procedural laws determine the efficacy of substantive laws.

 Apart from the legislature & the executives, the judiciary plays an important role in a democratic country like India in protecting & enhancing the rights of the citizens. Tribunals have been instituted at different levels all over the country to enforce citizens’ rights & remedies in case of violations. These tribunals interpret the laws to enhance justice to the people and society at large. Due to the enormous increase in the country’s population coupled with industrial and technological advancement, there has been a colossal increase in the workload of the judiciary. And its consequences and impacts on the society are well known. Not only the rate of crimes has increased phenomenally in the society but also there have been considerable change in the nature, methods and means of executing the crimes. As a result, law enforcement agencies are facing innumerable obstacles in delivering justice. One such prominent offshoot visible is unconscionable delay in disposal of cases.

The Present Scenario

Approximately there are about 10000 courts in India including one Supreme Court, 25 high courts and 672 district courts. Economic survey of 2017-18 revealed that the current working capacity of the Supreme Court and High Courts are only 63.6%. The Union Law Minister in November 2019 claimed that there were about 59,867 pending cases in Supreme Court and 44.75 lakh pending cases in the High Courts. In addition to the above there were 3.14 crore pending cases in various district and subordinate courts. The State and the Centre spends approximately 0.08- 0.09% of the GDP every year on administration of justice. This expenditure is very low when compared to countries like the US. US spends around $12 per person on judiciary whereas India spends only $0.24. However, comparing India’s budget with the world’s most powerful economy will be a little punitive but the objective is setting out a benchmark for India.

Judiciary has a vital role to play in a market economy. For efficient functioning of a market economy, three things are very important – efficient settlement of dispute, transparency in information and contract enforcements within a specified time period supported by an effective judiciary. Government, in a market economy, does not have a big role to play in transaction among players but has an effective role to play in systematic dispute management mechanisms that will minimise the cost of transactions. A pivotal role is played by the judiciary in such economies by enforcing contracts with minimised costs in cases of disputes.

Let us now examine the factors briefly that are obstructing timely delivery of justice for which Indian Judicial System has to face criticism like “tarik par tarik, tarik par tarik”.

Factors Responsible for Delay in Disposal of Cases

Multiple factors are liable for such huge pendency of cases. When compared between civil cases and criminal cases, the issues with criminal cases are far more acute. For criminal cases, speedy trail is considered to be an essential and important feature of right of a fair trial but has remained distant from reality. The procedure which creates delay in providing trial and disposal from a reasonable time period is considered to be unjust, unfair and unreasonable. If the accused has to wait unnecessarily for too long for justice, one can just imagine the suffering he has go through. The encumbrance in the expeditious justice delivery can be categorized under two comprehensive captions – (i) procedural factors & (ii) substantive factors.

Procedural Factors

According to Supreme Court of India, as mentioned under Article 21, a speedy trial encompasses the stages of investigation, inquiry, trial, appeal, revision & retrial. The delay caused while disposing of the cases due to procedural factors can be grouped under four sub-sections.

1) Delay in Pre-trial days: Pre- trial delays generally surfaces due to the below mentioned factors:

1. Delay in the process of investigation
2. Delay occurring in Service of Summons
3. Delay taking place in the process of filling written Documents and Submissions
4. Delay arising in the process of drafting charges or issues

2) Delay during trial: Delay may also take place while the trial is under process. By trial, we mean a process that is undertaken by the judiciary for determining an accused is guilty or innocent of the charges brought against him. Such trials are deemed to commence at the juncture when the cognizance of an infringement in taken up by a court. Reasons behind occurrence of such delays are generally due to following factors:

1. Provisions for adjournment
2. Absence of witness
3. Verbose arguments
4. Lawyers remaining absent
5. Filling applications in any phase while the proceedings of a case are under process
6. Delay in Pronouncing the Judgements
7. Delay occurring due to accused absconding
8. Difficulty in finding Death Report of a Witness or an Accused in case he dies at a faraway place from his residential area
9. Surety lacks Control in Producing the Accused

3) Delay during Appellate Proceedings: Judgements are made by humans and not by Gods, hence they are not infallible. In spite of there being all provisions to ensure a just trial and fair decision, possibility of mistakes and error still prevails. Hence, the Code provides for “appeals” & “revision” which gives authority to the superior court to re-examine and rectify judgements made by the sub-ordinate courts. This review process serves another crucial purpose apart from being a corrective apparatus. A sub-ordinate court’s decision being scrutinized by a superior court provides contentment to the party indignant by that decision. Though the aggrieved party gets assured that they have received a fair pronouncement free from mistakes, prejudices and plausible errors, the procedure is lengthy and causes a great delay in pronouncing the final verdict and disposing of the case. The reasons behind such delay are that the Superior Courts remain busy in deciding appeals keeping aside regular matters. Additionally, workload remains high for Superior Courts as well as huge time gets consumed in the process of transferring files and documents from the trial courts whose judgement had been challenged.

4) Delay in Execution Proceedings: Only by pronouncing a decree or verdict, the court’s duty does not come to an end. The court has to make sure that its order reaches to the party on whose favour the decision is given. However, court’s pronouncements do not enjoy the backing of administrative machinery/ authority of the state for an effective execution. Hence, the court remains busy in ordering the authorities to execute its order. Additionally, if a decree needs to be sent to another court for execution, there also occurs a delay because the executing court requires a copy of the decree given by the former court along with a few other documents and certificates. Transferring such documents consumes a lot of time which in turn delays the execution of the decree. Moreover, a provision is there to put a stay on execution of a decision which permits an individual against whom a decision is given to appeal against the decision. All such things result in delay in disposing of the cases whose repercussion ultimately sums up to an enormous backlog of cases.

Substantive Factors

Apart from procedural factors, there are seven substantive factors which equally contribute in stacking up of pending cases. Let’s have a look on these factors.

1) Vacancies in Judiciaries: The burgeoning docket burden that count with the judiciary is not only because of lumbering judicial process but also due to chronic paucity of judges and grievous understaffing in the courts. When compared to other nations of the world, in India there are approximately 13 judges per 10lakh people whereas as 58 per million in Australia, 75 in Canada, 100 in United Kingdom and 130 per million in the United States of America. There is an urgent need of filling up the huge vacancies in the judiciaries by appointing adequate number of judges to clear up the mammoth number of pending cases. Vacancies needs to be filled up on priority basis and ay unreasonable delay must not be entertained. But the India judicial system itself is loaded with lacunas which ultimately affects the efficacy of rendering justice. Mr S. P. Bharocha, the former chief justice of India, said in this context that, “It is only when we have far more trial courts functioning that we shall be able to dispose of more cases than are being filed and thus cut down on arrears.” On March 2018, while answering a Bench headed by Chief Justice of India Ranjan Gogoi, Rajya Sabha had revealed that almost a quarter of the total number of posts were vacant in the subordinate courts. According to the court, only 5133 posts were filled out of 22036 sanctioned posts. 42.18% seats were vacant in Uttar Pradesh and 37.23% in Bihar. Among the smaller States, 59.79% seats were left unfilled in Meghalaya. After looking into such statistics, one immediate question that strikes in our mind is why are there such huge vacancies? The reasons are very clear: first, unmitigated tardiness in the method of calling for applications; second, conducting recruitment examinations & declaring its results; lastly, arranging funds for paying & accommodating the newly appointed magistrates &judges. Apart from these, Public Service Commissions must take the initiative of recruiting the staffs for assisting these judges, while State Governments take up the responsibility of identifying spaces and Building courts for them .Scientific studies are being conducted through expert committees by the judiciary to identify the minimum number of judges and courts necessary for delivering justice with punctuality and avoiding long term pendency of cases. The present situation demands for a massive infusion of resources as well as manpower. The most critical judicial functions are carried out by the subordinate courts that directly influence the life of common people: holding trials, fixing civil disputes &implementing the bare bones of the law. Any delay in allocating financial and human resources will lead to crippling in the work of judiciary in the subordinate courts. Also, it will affect poor litigants & under trials, who bear the most inconvenience and sufferings because of judicial delays

2) Dearth of Accountability of Judges: Judiciary, in India, is treated as an independent and separate body of the state. Constitution bars the executive and legislature from interfering in the functions performed by the judiciary. Though independence has been given to the judiciary in performing its functions, in a democratic country like India where power lies in the hands of its citizens, i.e. “we the people of India”, at the end of the day judiciary must remember this fact while performing its functions. In the case of S.P. Gupta vs. Union of India, Supreme Court held that “The concept of independent of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law under the Constitution and it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law thereby making the Rule of Law meaningful and effective.” However, this in no way means that judiciary cannot be held accountable to the nation. The power always lies in the hands of the citizens in a democratic country and this had been held by the Supreme Court while judging many cases. It held that courts are fully accountable to the citizens and judiciary must remember this while performing its functions. But in contrast to what had been envisaged in the Constitution, judges loves to follow their own whims in performing their duties in the court, thereby resulting in delay in disposal of cases. According to the Article 235 of the Indian Constitution, power has been given to the High Courts to control Subordinate Courts but no such powers have been provided to the Supreme Court to control the High Courts. Neither the Chief Justice of India nor of High Courts has any control or authority of making other judges of the court accountable. The 1996 Woolf Report had emphasized in making the judiciary accountable for its functions through creation of judicial statistics that must be revised daily. The committee revealed that such statistical report on functions performed by the judges will force them to be more liable to the judiciary. Additionally, it had also suggested that it is crucial & useful in tackling the arrears rather than strengthening human & financial resources. However, all such suggestions continued to exist only in papers and never brought into practice.

3) Large number of Vacations in Courts: Vacations has been one of the most debatable topics pertaining to the causes of delay in disposal of cases. Long vacations are unique features of Indian Courts. Despite such high pendency of cases, judges enjoy long vacations. Judges of countries like United States of America and France have no provision of taking vacations. They take leave in accordance with their convenience which does not hamper the smooth performance of the courts. In our country, except the subordinate criminal courts, all other courts (SC, HC and subordinate civil courts) remains closed during vacations. Supreme Court works for 185 days a year from 10:30am to 4pm with one hour of lunch break; High Court work for 210 days in a year from 10:30am to 4:30pm with one hour of lunch break; District Subordinate Courts work for 240 days in a year from 10:30am to 5pm with 45 minutes of lunch break.

The system of vacation was adopted in colonial era. That time the burden of work was very less in comparison to present day. Besides, climate was also a factor. The British being people from cold climate could not bear the scorching heat of summer. They preferred spending summers in England. They had to travel by sea which took several weeks. This was the real reason behind introducing such long vacations in the Indian courts. But now the situations are different, and numbers of pending cases are mountainous. Hence, the present scenario demands revision of such long vacations and initiate a greater number of working days like other governmental institutions.

4) Misuse of Public Interest Litigation: The standard rule says, only whose fundamental rights have been infringed can move to the courts. The power bestowed on the Supreme Court can be exercised only for enforcing fundamental rights. However, Supreme Court has now considerably relaxed this locus standi traditional rule. ‘Public spirited citizens’ are now permitted by the court to enforce constitutional or legal rights of an individual or a group of people who are unable to approach the court due to poverty or social disadvantages. But this revolutionary step is presently being misused to get publicity. Courts are getting flooded with litigations which are intensifying the workload of the courts leading to delay in disposal of cases.

5) Hostile Witness: Another major problem encumbering delivery of justice is that the witnesses turning hostile. Witnesses are said to be the eyes and ears of justice. They have got magic power in their statements which can change the direction of the case. Often money is used by the rich, politicians, bureaucrats, industrialist or high-profile public servants by whom crime has been either intentionally or accidently committed to buy the witnesses. Where money does not work, muscle power is used. Culprits believe once the witness is purchased, they can relax. Any normal person who himself or his family is threatened to face dire consequences will consider thousand times before speaking against the accused. They are forced to change their statements. Apart from muscle power and money power, many a times the psychological factor, political pressure, self-generating fear etc. also forces the witness to turn hostile. However, whatever may be the procedure applied for turning the witness to become hostile, all these results in delaying rendering of Justice.

6) Writ Petition: Writ Petitions are exceptional constitutional remedies which the judiciary uses to review the legislative and executive acts. They do not comprise of normal judicial work that adjudicates disputes between governments or citizens or amongst citizens. Presently, situations have become so serious that even for exceptional remedies of writ petitions, it is becoming necessary to set priorities. Often writ petitions are filed for forcing the executives in performing their duties. This leads to wastage of courts’ precious time in ordering the executives to accomplish their constitutional duty which ultimately causes delay in disposal of important cases.7) Delay made by the Judges: Some practices like writing of discursive judgements are responsible for arrears or delays. A huge amount of time gets consumed by judges as well as others while writing the judgements, thereby causing delay in declaring the judgement. It becomes more confusing and time consuming if a separate judgment coincides and needs to be written at the same time. 

Conclusion

From the above discussion it is apparently clear that no single factor can be held responsible for occurrence of delay in delivering justice rather it is a combination of multiple factors that contribute to the delay and piling up of cases. By reducing the vacations, increasing working hours, establishing new trial courts and speedy filling up of vacancies in the courts will atleast decelerate the accumulation of new cases if managed efficiently. The entire framework of justice delivery process demands overhaul in order to nip the issue of delay at its bud. It should be remembered that justice delayed causes hindrance in the progress of country’s economy especially for a market economy like India, therefore it is necessary to have a strong judiciary capable of fixing the disputes quickly as well as punctually. We would like to conclude by mentioning what Mr. Soli Sorabjee, the former Attorney General of India had said – justice delayed is not only justice denied but also leads to destruction in the Rule of Law.

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