With over 3.4 crore pending cases in India’s courts, stories of delay are legion—nearly 55% of cases in lower courts have been there for over two years and just under 10% for over a decade.
With over 3.4 crore pending cases in India’s courts, stories of delay are legion—nearly 55% of cases in lower courts have been there for over two years and just under 10% for over a decade. Not surprising, then, that India’s ranking when it comes to enforcing contracts, which also includes quality of judicial process, is 172th out of 190 countries in the World Bank’s Ease of Doing Business rankings. Much of this, as the recent battle between the Union government and the then Chief Justice suggested, was due to an acute shortage of judges. A Law Commission report in 2009 had quoted a Delhi High Court observation that 464 years would be required to clear the arrears with the present strength of judges.
A Law Commission recommendation, in 1987, had talked of India needing 50 judges per million population, implying the country needs another 45,000 judges — given this is around two-an-a-half times the number of judges India has at the moment, getting to this is a near impossibility. While not getting into the issue of shortages of judges, a new study, by Vidhi Centre for Legal Policy, of 8,086 orders passed by the Delhi High Court between 2011 and 2015, offers a different perspective.
The study classifies cases as ‘delayed’ if they have been in court for more than two years and tries to pin-point the reasons for inefficiency—in 91% of delayed cases, it was lawyers who sought more time as compared to a much lower 36% in cases that were disposed off in time. Having done the analysis of counsel-side and court-side delays, it concludes that 82% of all delays could be attributed to lawyers and not the judges per se. The analysis needs to be carried across other courts to be more meaningful since it is only partial. Court-side delays, for instance, are captured by judges being absent in Vidhi’s analysis, but if there were to be a higher number of judges, this could result in higher resolution of cases even with the same proportion of absent judges.
During the government-CJI standoff, while SC blamed the Centre for 430 posts of judges and additional judges lying vacant in high courts, the government had highlighted the staggering 4,400 vacancies in the subordinate judiciary, making appointments to which is the task of the High Court in most big states. Similarly, though frivolous litigation is often cited as a reason for judicial delays, Vidhi finds that of the cases disposed off in six months, only 4% had been explicitly called frivolous, vexatious or without merit; nor was Vidhi able to quantify the number of cases involving government litigation, though this is seen a major cause for clogging the courts.
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Even so, there are several useful recommendations. Though the Code of Civil Procedure, 1908 suggests not more than three adjournments should be given in each case, Vidhi finds the Delhi High Court gave more than three adjournments in nearly 70% of all delayed cases. Indeed, while the Delhi High Court has said that costs should be imposed on excessive adjournments, it did so in only a fifth of cases where more than three adjournments were given. Since absent-counsel affects two-thirds of all delayed cases, a simple solution would be for the registry to ensure cases involving the same lawyer are not listed soon after another. While the issue of shortage of judges will remain, better court-management can only be a good thing.