By-M. L.Dhar : Delivery of justice is an inviolable constitutional entitlement of every citizen. The founding fathers of our constitution accorded high priority to delivery of justice, be it social, economic or political. India prides over its glorious judicial system and cherishes independence of its judicial institutions.
The Indian judicial system comprising the Supreme Court, 21 High Courts and a large number of subordinate courts enjoys vast powers catering to the judicial needs of more than one billion people. The courts are the custodian of the laws and protector of people’s rights and an insurance against arbitrary exercise of power. The common man has faith in the Indian Judiciary is demonstrated by the large number of cases it is handling each year. During the last quarter of 2007, over 3.5 million cases were filed in subordinate courts across the country, out of which about 3.3 million were tried.
With people turning to judiciary in quest of justice, the courts have got overburdened with both civil and criminal cases awaiting disposal.
The pendency has been on increase which is becoming a cause of concern and the common man, expecting expeditious and inexpensive justice, asking why mills of justice are grinding so slow. According to the Chief Justice of India Justice Shri K.G. Balakrishanan ‘the growing population, increasing awareness of rights and abiding confidence of the people in the judiciary saw a litigation boom which our judicial set up was not sufficiently equipped to handle.”
According to legal experts, there are a number of reasons afflicting the Indian judicial system. Underfunding of judiciary, neglect in improving judicial infrastructure over the past decades, inordinate delays in filling up vacancies of judges and very low population-to-judge ratio are some of the major factors that require immediate attention to improve the performance of judiciary.
During the Ninth and Tenth Plan only 0.071percent and 0.078% of the total plan outlays respectively were allocated for the judiciary. It has been observed that such meager allocations are too inadequate to meet the requirements of the judiciary. It is said that India spends just 0.2 percent of the gross national product on judiciary. According to the First National Judicial Pay Commission, every State has been providing less than 1% of the budget for subordinate judiciary except Delhi which has provided 1.03%.
Another important issue pressing hard is the enhancement of the strength of judges to speed up disposal of arrears in courts. The sanctioned strength of judges of the High Courts was 725 and working strength was 597 as on March 1, 2007 leaving 128 vacancies. Similarly, with 11,767 working strength of Subordinate Judges there were 2710 vacancies. It is observed that 25 percent of the judge positions remain vacant due to procedural delays.
Based on the disposal of cases in 2006, average disposal per judge comes to 2374 cases in High Courts and 1346 cases in Subordinate Courts. Applying this average the country will require 1539 High Court Judges and 18,479 Subordinate Judges to clear the backlog in one year. The requirement would come down to 770 more High Court Judges and 9,239 more subordinate court judges if the mind-boggling arrears alone have to be cleared in the next two years. According to the 120th Law Commission Report, India’s population-to-judge ratio is one of the lowest in the world with only 10 judges for every million of its population as compared to about 150 judges for the same number in the United States and Britain.
Delay in delivery of justice would not only undermine public confidence in the system but would also impact the efficient functioning of the system. Failure to provide expeditious justice due to long delays defeats the very purpose of just and fair trial especially in criminal cases. It cuts on both sides, on the one side, unnecessary suffering for an accused getting acquitted after a long trial and on the other side, guilty person going scot free due to loss or distortion of evidence as the trail prolongs too long. Therefore, it becomes imperative that the faith deposed by the common man in the judiciary be maintained no matter whatever the cost.
Responding to the gravity of situation the government has employed urgent measures to revitalize the judicial system so that millions of its citizens will receive timely justice. The government has accorded high priority to judicial and legal reforms. It has amended the procedural laws to improve criminal justice system as major portion of backlog pertains to criminal cases. The Criminal Procedure Code has been amended to deal with the problem of witnesses turning hostile.
But the most far reaching step to improve judicial functioning is the implementation of a perspective plan for modernizing and expanding judicial infrastructure in all earnestness with funds from the government. New court buildings and essential residential accommodation for judges is being constructed. While the Supreme court and the High Courts are already enjoying the fruits of computerization, around 15,000 district and subordinate courts are being computerized at a cost of about Rs.450 crore. The scheme provides for granting laptops to all judicial officers with broadband connectivity that would enable them easy access to judgements from the archives. The E-enabling will help the courts to function more efficiently and speed up the disposal of cases. It would also network these courts with the higher courts and thus facilitate greater accountability.
Meanwhile, the disposal of cases can be increased by greater use of the existing infrastructure with courts having more than one shift. Gujarat has already shown the way where evening courts are functioning with appreciable results.
Fast Track Courts (FTC) recommended by 11th Finance Commission have proved effective in addressing pendency. Keeping this in mind the government has extended the term of 1,562 FT courts operating at sessions level up to 31st March 2010 providing central support to the states. These courts have been doing a commendable job disposing around 11 lakh cases till April 2007.
Addressing the issue of pendency automatically shifts focus to the issue of judge strength and filling up of vacancies particularly in subordinate judiciary which needs urgent attention of the state governments and the High courts. The country has to develop a near zero vacancy culture.
The central government has proposed to set up more that five thousand Gram Nyayalayas at intermediate panchayat levels. ‘’These courts would provide justice in relatively ordinary civil and criminal cases to the rural population. The procedure to be followed by these courts has also been kept simple and flexible so that these cases can be heard and disposed of within 90 days’ period,’’ Shri H.R. Bhardwaj, Law and Justice Minister told Parliament.
Resorting to Alternate Dispute Redressal (ADR) mechanism such as arbitration, negotiations, conciliation and mediation can help in reducing pendency of cases. In many countries such as the United States resolving disputes through ADR mechanism has been highly successful. There is already Arbitration Conciliation Act 1996 containing the detailed scheme of conciliation. The Code of Civil Procedure has also been amended with a view to grow alternate system into the mainstream of justice. However, the problem lies in not having many trained mediators and conciliators. We need to train in conciliation and mediation not only judicial officers but also the lawyers. Moreover, people are to be made aware on a mass scale about the availability of ADR.
At present the institution of cases in courts far exceeds their disposal. Litigation is bound to increase in future as more and more sections of society become aware about their legal rights. This is bound to aggravate further the situation created by pendency and backlog.
The government needs to tackle the current manpower shortfall, inadequate infrastructure, mainstreaming alternate dispute redressal and training on war footing.