Suparna Jain & Desh Gaurav Sekhri
Recognising the adverse impact that pendency has on the Indian legal system, the Chief Justice of India Dipak Misra wrote this week to the Chief Justices of the High Courts to initiate a ‘disposal review mechanism’ to expedite case disposals. This correspondence was based on the recommendations of two committees that the Supreme Court of India had created to address how to improve the justice delivery system in the apex court and the High Courts. This is a welcome directive. It could complement the efforts made by the government of India, through on-going programmes and initiatives, for reducing the pendency of cases. The Nyay Vikas platform, developed by the law ministry, has introduced incentives to support the funding of judicial infrastructure on the basis of indicators pertaining to the completion of projects as well as work done towards reducing vacancies and the pendency of matters that are more than 10 years’ old.
Similarly, the adoption and use of IT in judicial proceedings is being encouraged under the ‘e-courts’ project, which could be integrated within the proposed reforms to reduce pendency. There is, however, a singular factor that impacts pendency adversely, more than any other reason: the prevalence of adjournments.
Until there is effective control over the grant of adjournments by the courts, pendency will remain a major issue. Excessive adjournments are a key factor leading to delays in the disposal of cases, an aspect that has been recognised by the courts themselves on numerous occasions. Justice Gautam Patel of Mumbai High Court famously penalised litigants for each day of unnecessary delays, and emphatically stated “no more adjournments.” The current CJI in 2011 had asked the judiciary, “to conceive and adopt a mechanism… to avoid such inordinate delays in matters.” These are just a few illustrations that highlight the role adjournments play.
The legislature, recognising the adverse effects of granting adjournments and seeking to address them, through an amendment in 1999, fixed an upper limit of three adjournments during the hearing of a matter. It specifically disallowed the courts from expanding the time granted for doing any “act prescribed or allowed by the Code” beyond a maximum period of 30 days. This was reiterated in 2002, when another time-frame to prevent delays was introduced. It limited the time for filing written statements to 90 days from the date of the service of summons. Despite this statutory procedure, the interpretation of the Supreme Court judgments in the Salem Advocate Bar Association vs The Union of India and the Kailash vs Nanhku cases inadvertently granted litigants loopholes through delays in filing and excessive adjournments “in the interest of providing justice.”
The Economic Survey 2018, in its section on timely justice, stresses that building the additional capacity of the judiciary is not necessarily the solution to delays, and effectively points out that enough has been done to ease business, but the next step is to address pendency, delays and backlogs. Even the Ease of Doing Business Report 2018 asserts that non-enforcement of the legal procedure for the grant of adjournments by the judiciary is responsible for many
There is more. A number of studies, over the years, further affirm that adjournments are one of the key causes for judicial delay. From the Rankin Committee (1925) to the Arrears Committee (1989-90), many committees have analysed the reasons for judicial arrears and suggested a check on adjournments to address pendency. The 77th Law Commission Report identified adjournments as an important cause of delays. NIPFP, in a 2016 report, assessed that borrowers seeking adjournments caused 46% of all delays in cases before the debt recovery tribunal.
Even that is not all. Studies by legal policy centres have shown an alarming trend. A recent study of the Delhi High Court by the Vidhi Centre found that courts grant over three adjournments for approximately 70% of the delayed cases, and although courts stress consistently on cost imposition for excessive adjournments, only 20% of the aforementioned delayed cases received any penalty. A study by Daksh estimated that subordinate courts in Delhi and Bengaluru spend about 44% of their time and approximately `80-150 crore (around 12-22% of annual state expenditure on judiciary) on adjournments.
There have been positive and proactive measures by the legislature, and now the apex court, to tackle the pervasive nature of delayed access to speedy justice for Indians. The institutionalisation of alternative dispute resolution, an area that the law ministry is working progressively towards implementing, is another solution.
But the biggest roadblock to the ease of, and access to, justice is the role that adjournments play in pendency. The CJI, in a recent address, called the practice of “seeking” adjournments a disease and insisted that lawyers “should develop a sense of anti-allergenic towards adjournments.” Implementing the law and taking a hard stance by the judiciary on indiscriminate appeals for adjournments will be the only way to tackle the issue. A good first step can be borrowed from the Supreme Court in the Shiv Kotex matter, where, after observing how “adjournments have grown like cancer, corroding the entire body of justice delivery system,” the Court stipulated illustrative factors to be considered before allowing more than three adjournments. The wait for justice simply cannot go on.
Jain is a legal OSD with NITI Aayog
Sekhri is a governance & research/legal consultant with NITI Aayog
Views are personal