From dispute resolution to technology, innovations within judiciary hold key to tackling pendency issue

The key to the pendency solution is innovative thinking, and not an expensive labyrinth of court systems, which when adopted become lengthy, cumbersome and sometimes counterproductive measures

GV Rao December 13, 2021 17:00:51 IST
From dispute resolution to technology, innovations within judiciary hold key to tackling pendency issue

Representational image.

The common refrain of the intelligentsia in India is that the courts are unable to provide speedy justice to a litigant who approaches it. The sharp criticism the legal system faces due to this has no defence. This makes the average citizen lose his/her faith in the system, which not only leads to frustration but in many instances, encourages law-breaking. This leads to a vicious cycle of furthering the burden of indisposed cases in courts.

The ultimate result is an unhealthy phenomenon of disguised anarchy and the triumph of forces of the unjust, which goes against the grain of our ancient philosophy and moral that the violator of the law shall face punishment. Ultimately, ‘Rule of Law’ is the causality and our system of governance stands challenged wherein law-breakers would rule the roost.

The abovementioned situation is spelt out in two Latin maxims — Iustitia orari iustitia est and Qui iustitiam moratur iustitiam negat, i.e., to delay justice is injustice and he who delays justice denies justice. Therefore, the very foundation of the justice delivery system is compromised and left baseless.

The need to tackle delays in administration of justice is paramount and it requires urgency and effective handling with total commitment. The consequences could not be better described than in the words of then US Chief Justice Warren E Burger who noted in an address to the American Bar Association in 1970: “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 fulfil its primary function to protect them and their families in their homes, at their work, and on the public streets.”

Attorney-General KK Venugopal’s remarks at a recent National Law Day function for the setting up of Regional Court of Appeals for the four regions comes from his extraordinary experience of over five decades as a lawyer and having been fêted with the highest honours of the country, Padma Bhushan and Padma Vibhushan.

However, we need to review these suggestions for reform, which originated more than two decades ago, and formed the basis of three Law Commission Reports (LCRs). The first one was the 95th LCR, titled ‘Constitutional Division within the Supreme Court: A proposal’ delivered in1984 by Justice KK Mathew, then the 125th LCR, ‘the Supreme Court: A fresh look’ by Justice DA Desai in 1988. Finally, a suo motu one by Justice AR Lakshmanan the 229th LCR in 2009 titled ‘Need for Division of the Supreme Court into a Constitution Bench at Delhi and cassation benches in 4 regions…’

The vexed issue has not found a resolution in about four decades while arrears pile up and have reached to about 70,000 cases in the Supreme Court, not to mention the overall arrears in the country. There have been various joint efforts by the apex court with the government mainly due to the undaunting task of setting up regional benches and the method of functioning, as there was no majority support for this humongous effort required. Similarly, members of the Bar, Bench, and the legislature and executive could not come to a consensus on an absolute requirement for the creation of these Benches.

There has been an attempt to tackle the arrears by increasing the strength of the court. In successive years, the number of judges rose from 7 in 1950 to 10 in 1956, 13 in 1960, 17 in 1977 and 25 in 1986; finally, the strength of judges from 2009 is 30, excluding the Chief Justice of India. The other attempt was to ensure timely appointment of filling vacancies in the High Courts as well as to enlarge the strength of the district courts.

Studies, however, have shown that increase in judge strength has not really helped in controlling arrears and reduction of pendency. The 229th LCR has also recommended increase of retirement age of Supreme Court judges from 65 to 70 and for High Courts from 62 to 65

An important resolution to a crucial obstacle was suggested by the Chief Justice of India, NV Ramana, who recommended the setting up of National Judicial Infrastructure Authority. Incidentally it is pertinent to mention that in Canada, one province alone (Ontario) plans to spend more than $72 million over two years to tackle a backlog in the province’s courts; it says it has taken care of tens of thousands of cases over the course of the COVID-19 pandemic.

Attorney-General Doug Downey said that part of the funding will help pay for more than 340 new court employees, including Crown prosecutors, victim support staff The additional staff will help boost trial capacity and reduce the number of cases coming into the justice system, as well as speed up cases already in the system, he said.

There has been huge criticism against the budgetary cut of about Rs 1,100 crore in the budget of 2020 which gravely affects the functioning of the justice administration system. Such financial indiscretion ought not to be allowed to be repeated, as litigants and citizens rights have to be zealously guarded and protected.

However, we cannot ignore the fact that constitutional adjudication is of importance and significance in our democracy. It always merits consideration as to whether there should be a separate constitutional court, as is the case with 55 countries of the world (Austria established the world’s first separate constitutional court in 1920), or at least the Supreme Court should have a Constitutional Division. Many continental countries have constitutional courts as well as final courts of appeal called courts of cassation (Cour de Cassation in French) for adjudication of non-constitutional matters. A court of cassation is the judicial court of last resort and has power to quash (casser in French) or reverse decisions of the inferior courts.

So far, the parliamentary committee on law and justice in its various reports have also recommended setting up of regional benches. The committee in its second, sixth, 15th, 20th and 26th reports on the Demands for Grants of the Ministry of Law and Justice has impressed upon the setting up of benches of the Supreme Court in southern, western and eastern parts of the country. This would of course require immensely large investments, which would three-fold capital and infrastructure maintenance, as well as for additional human resources of at least 24 more judges of the Supreme Court rank and about 300 registry staff of various ranks.

In the United States Court of Appeals, any of 13 intermediate appellate courts within the US federal judicial system, including 12 courts whose jurisdictions are geographically apportioned and the United States Court of Appeals for the Federal Circuit, whose jurisdiction is subject-oriented and nationwide.

Each regional Court of Appeals is empowered to review all final decisions and certain interlocutory decisions of district courts within its jurisdiction, except those few decisions that are appealable directly to the Supreme Court of the United States. Their reviews are mostly limited to points of law, not fact.

All decisions of the courts of appeals are subject to discretionary review or appeal in the Supreme Court.

However, in India the framers of our Constitution devised an apex court which would be both a Constitutional Court as well as a final Court of Appeal. The mechanism adopted has reasonably functioned well for about 50 years. In the last two-and-a-half decades we have run into problems. As of now, there are about 400 constitutional pending cases.

The argument that regional benches of the Supreme Court or other Courts of Appeal above the high courts be set up because of the litigants face huge costs to travel and have their matters prosecuted at the apex court in Delhi is to some extent — and has great potential of — being handled through technological advancements of e-filing and video conference hearings.

In this context, it is pertinent to note what PC Alexander, former governor, Member of Parliament and Cabinet Secretary, wrote in the Asian Age of July 2009: “No doubt, increasing the number of judges, promptness in filling up the vacancies and improving working facilities are all very important for the efficiency of the judicial system, but these alone cannot be an adequate solution to the pendency problem. There are many measures which the judiciary can take without waiting for additional financial support from the government, but very little effective action has been taken on these by the judiciary and they continue to cause delays in the disposal of cases. They include laxity shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without good reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily long judgments.

Alexander added, “The liberal attitude of the courts in entertaining appeals from the lower courts has also contributed to the steady increase in the backlog. Those who have the financial resources go on appeal on the decisions of the lower courts to the next higher court, and finally to the Supreme Court, even when no interpretation of the law may be involved. When the accused are influential politicians or rich businessmen, the cases can go on endlessly, bringing down in this process the reputation of the judicial system itself. If appeals can be limited to a small number, say one or two, depending on the nature of the crime, it can help a great deal in reducing pendency. The practice of some judges in delaying the delivery of judgments for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice. Though a maximum time limit of one month has been considered reasonable for the delivery of judgment, there is no mechanism for enforcement of any time limit, and this malpractice on the part of some judges thus goes on unchecked. Again, no serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for temporary periods for help in clearing the backlog of cases. It appears that retired judges are reluctant to serve in this capacity as they consider such service not befitting their status. There is no reason why this issue cannot be sorted out to the satisfaction of the retired judges, but the judiciary does not appear to be very keen about resorting to these Constitutional provisions.”

Talking of pendency internationally, the Superior Court cases in Canada by law will now have up to 30 months to be completed, from the time the charge (petition filed) is laid to the conclusion of a trial. Provincial court trials should be completed within 18 months of charges being laid, but can be extended to 30 months if there is a preliminary inquiry. In Australia, the bulk of Magistrates’ Court initiations (75 percent) are finalised within 13 weeks, while the same proportion of higher court (District and Supreme) trials are finalised within one year. In Supreme Court of Victoria, 87 percent of cases get over in one year in 2019-2020

We, therefore, need to address the pendency issue through innovative ways: Alternative dispute resolution, case management systems, trial and motion practice, and technology tools. According to tech guru Narayana Murthy, latest technologies such as AI, machine learning, bots, blockchain and natural language processing could be of immense help.

“We already have Case Information System 3.0 in place at the Supreme Court as a knowledge base for building knowledge base,” he pointed out. This knowledge base can then be used for building expert Artificial Intelligence (AI) systems based on technology that can help solve cases based on logical and mathematical reasoning.

Therefore, the key to the solution is innovative thinking, and not an expensive labyrinth of court systems, which when adopted become lengthy, cumbersome and sometimes counterproductive measures.

The writer is Senior Advocate, Supreme Court. The views expressed are personal.

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