The Practical Lawyer

Efficient Functioning of India?s Justice Delivery System

EFFICIENT FUNCTIONING OF INDIAS JUSTICE DELIVERY SYSTEM*

By Justice K.G. Balakrishnan**
Cite as : (2007) 4 SCC (Jour)

The Founding Fathers of our Constitution placed justice at the highest pedestal and the Preamble to our Constitution
significantly noticed justice higher than the other principles i.e. liberty, equality and fraternity. Again, the Preamble clearly
demonstrates the precedence to social and economic justice over political justice. People turn to the judiciary in quest of
justice. The Constitution lays down the structure and defines, delimits and demarcates the role and function of every
organ of the State including the judiciary and establishes norms for their inter-relationships, checks and balances.
Independence of judiciary is essential to the rule of law.

It is quite universally agreed that the institution of judicial review is a unique contribution made by the American
jurisprudence to the art of governance. This extraordinary legal invention has constituted that feature of the Federal
Constitution. Judicial review seems deceptively simple, but it is one of the most baffling of legal devices. Sometimes it is
described mistakenly as a veto power over legislation. The constitutional validity of legislation, as well as of executive
acts, is decided solely as an incident of litigation between individual litigants ascertaining specific rights. The process of
constitutional interpretation is thus an integral part of the ordinary legal process, controlled by precedent and standards
of judicial objectivity and propriety, although actually constitutional questions usually raise explosive political issues.

The application to judicial review to determine constitutionality of the legislation and to review the executive decision
sometimes creates tension between the judge and the legislative and executive branch. Such tension is natural and to
some extent desirable. The principle of separation of powers is kept in the forefront and the judge should make sure that
each of the other branches operates within the boundaries of the law and the judicial review of the constitutionality of
legislation and of administrative actions realises democracy.

* Address at the Joint Conference of Chief Ministers and Chief Justices, at Vigyan Bhawan on 8-4-2007.

** The Honble the Chief Justice of India.

The Indian judiciary with the Supreme Court and 21 High Courts in the State exercise large powers and the size of the
Indian judiciary in a vast country of more than a billion inhabitants is next only to that of USA. The superior judiciary not
only decides civil and criminal cases but the judicial review safeguards civil and political rights of individuals and
sometimes define and control the powers of every organ of the State.

The function of the Supreme Court is of vital importance and it is the anchor which holds us to the constitutional
Governmentever watchful guardians of the liberty of the people against transgression by legislative or executive action.
The balance wheel holding it in equipoise reflects the true relationship of the various parts of the complex system. We
are deeply concerned with the great responsibility devolving upon the courts. Of course, the judicial review of legislative
and administrative actions has given right to some criticism of the way in which the courts are functioning. The words of
Prof. H.P. Lee of Monash University are apt to be remembered at this juncture. I quote:

Scurrilous abuse of particular members of the judiciary or attacks which question the integrity of judicial institutions
undermine public confidence in the courts and acceptance of their decisions. This is not to suggest that courts should be
immune from criticism. On the contrary, the judgments of the courts should be scrutinised and critically evaluated. But
those who hold positions of power and influence in the country have a responsibility to ensure that the line between
measured criticism of judgments of denigration of judges is not traversed. Constitutionalism is not enhanced by hostility
directed against the judiciary which plays such a pivotal role in maintaining the rule of law.

It is essential in a country governed by a rule of law that every decision must be made under the rule of law. Like any
other public institution, the judiciary can be subjected to fair criticism if and when occasion demands but if the criticism is
legitimate and irresponsible, it may leave to incalculable damage to the institution of the judiciary.

It is a matter of satisfaction that the public at large continues to hold our judicial institution in high esteem despite the
shortcomings. We are aware of the great responsibility bestowed on us. In the words of Dr. Cyrus Das,

Justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like any other
product if it is to survive market scrutiny. It exists for the citizenry at whose service only the system of justice must work.
Judicial responsibility, accountability and independence are in every sense inseparable. They are, and must be,
embodied in the institution of the judiciary.

The experience of the Indian judiciary for the last more than half century shows how inseparable the struggle for judicial
responsibility, accountability and independence has been. Yet, there are serious concerns about the efficacy and ability
of justice delivery system to dispense a speedy and affordable justice. Questions on the credibility of judiciary are being
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raised due to mounting arrears of cases, delays in disposal and high cost of obtaining justice. 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. With the enactment of large number of laws, the volume of work in
courts has increased enormously without any increase let alone corresponding increase in the strength of judges at all
levels. People have become more and more aware of their rights and are no longer willing to submit to arbitrariness
anywhere. The natural fallout was an overburdened system, too choked to be able to provide expeditious or inexpensive
justice. We can rightly take pride for the quality and effectiveness of our judicial system. Yet, we cannot deny that it
suffers from serious deficiencies, requiring immediate steps to improve its performance, so as to render prompt and
inexpensive service to its consumers.

When we talk of delay in the context of justice it denotes the time consumed in the disposal of case, in excess of the time
within which a case can be reasonably expected to be decided by the court. An expected life span of a case is an
inherent part of the system. No one expects a case to be decided overnight. However, difficulty arises when the actual
time taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in
dispensation of justice. Delay in disposal of cases not only creates disillusionment amongst the litigants, but also
undermines the very capability of the system to impart justice in an efficient and effective manner. Long delay also has
the effect of defeating justice in quite a number of cases. The problem is much more acute in criminal cases, as
compared to civil cases. Speedy trial of a criminal case considered to be an essential feature of right of a fair trial has
remained a distant reality. A procedure which does not provide trial and disposal within a reasonable period cannot be
said to be just, fair and reasonable. If the accused is acquitted after a long delay, one can imagine the unnecessary
suffering he was subjected to. Many times, inordinate delay contributes to acquittal of guilty persons either because the
evidence is lost or because of lapse of time, or the witnesses do not remember all the details or do not come forward to
give true evidence due to threats, inducement or sympathy. Whatever may be the reason, it is justice that becomes a
casualty.

The courts do not possess a magic wand which they can waive to wipe out the huge pendency of cases nor can they
afford to ignore the instances of injustices and illegalities only because of the huge arrears of the cases already pending
with them. If the courts start doing that, it would be endangering the credibility of the courts and the tremendous
confidence they still enjoy from the common man. It is high time we make a scientific and rational analysis of the factors
behind accumulation of arrears and devise specific plan to at least bring them within acceptable limit, within a reasonable
time-frame. There are volumes of Law Commission recommendations, Expert Committee reports and opinions of jurists,
highlighting the problem and suggesting ways and means. The need of the hour is to act upon those suggestions swiftly
and decisively.

The real problem is that the institution of cases in the courts far exceeds their disposal. Though there is a considerable
increase in the disposal of cases in various courts, the institution has increased more rapidly.

The High Courts increased their annual disposal from 9,80,474 cases in the year 1999 to 14,50,602 cases in the year
2006, the cumulative increase being 48% in seven years, without there being commensurate increase in the strength of
judges. However, the institution increased from 11,22,430 cases in the year 1999 to 15,89,979 cases in the year 2006
leading to increase in pendency from 27,57,806 cases as on 31-12-1999 to 36,54,853 cases as on 31-12-2006.

Subordinate courts disposed of 1,58,42,438 cases in the year 2006 as against 1,23,94,760 cases in the year 1999,
thereby, increasing the disposal by 28% in seven years without any substantial increase in the strength of judges.
However, the institution increased from 1,27,31,275 cases in the year 1999 to 1,56,42,129 cases in the year 2006,
resulting in the pendency getting increased from 2,04,98,400 cases as on 31-12-1999 to 2,48,72,198 cases as on 31-12-
2006.

The average disposal per judge comes to 2374 cases in the High Courts and 1346 cases in subordinate courts, if
calculated on the basis of disposal in the year 2006 and working strength of judges as on 31 12-2006. Applying this
average, we 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 9239 more subordinate judges if the arrears
alone have to be cleared in the next two years. The existing strength being inadequate, even to dispose of the actual
institution, the backlog cannot be wiped out without additional strength, particularly, when the institution is likely to
increase and not come down in the coming years.

Several statutes like the Penal Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Transfer of
Property Act, the Contract Act, the Sale of Goods Act, the Negotiable Instruments Act, etc., which contribute to more
than 50% to 60% of the litigation in the trial courts are Central enactments, referable to List I or List III and these laws are
administered by the courts established by the State Governments. The number of Central laws which create rights and
offences to be adjudicated in the subordinate courts are about 340. It is obvious that the Central Government must
establish courts at the trial level and appellate level and make budgetary allocation to the States to establish these courts
to cut down backlog of cases arising out of these Central statutes. The Central Government must estimate and pay for
the recurring and non-recurring expenditure of the State courts to the extent the courts spend time to adjudicate disputes
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arising out of Central statutes. Article 247 of the Constitution enables the Union Government to establish additional
courts for better administration of laws made by Parliament or of any existing law with respect to a matter enumerated in
the Union List. This article is specially intended to establish courts to enable parliamentary laws to be adjudicated upon
by subordinate courts but has not been resorted to so far.

Almost every statute made by Parliament or the State Legislatures, creates rights and offences which go for adjudication
before the trial and appellate courts. Every Bill in Parliament or the State Legislature does have a financial memorandum
attached to it and the memorandum mentions the allocations required from the Consolidated Fund of the Union/State but
it confines itself to the expenditure for administrative purposes. The judicial impact of legislation on the courts is not being
assessed in India as is done in the United States where, there is a special statute for this purpose.

Whenever a new legislation is passed it should be accompanied by a budgetary estimate of its impact and necessary
financial allocation should be made in the Bill itself, to meet the expenditure likely to be incurred on setting up additional
courts required to deal with increase in workload and providing infrastructure for them.

So far backlog in subordinate courts is concerned, additional courts must be created and additional judicial officers must
be appointed till the backlog is cleared. Ad hoc judges under Article 224 A of the Constitution should be appointed to
clear the backlog in the High Courts for a period of five years or till the backlog is cleared. All the cases which are
pending in the High Court for two years or more can be allocated to these ad hoc judges. Since the annual institution in
the High Courts as well as in subordinate courts exceeds their respective annual disposal, additional judges in the High
Courts as well as in subordinate courts should be appointed on permanent basis to deal with the increase in institution
over the disposal.

The Law Commission in its 120th Report submitted in 1987 examined the problem of understaffing of judiciary and
recommended 50 judges per million of population instead of 10.5. The present requirement of number of judges is much
greater, looking to the spate of litigation, population explosion and other factors. The inadequate judge strength is a
major cause of delay in disposal of cases. Thus, the main cause for judicial delay lies not so much with the judiciary as
with the executive and administrative wing of the Government. Sanctioned strength of the High Courts was 725 and
working strength was 597 as on 1-3-2007 leaving 128 vacancies. Sanctioned strength of Subordinate Judges was
14,477 and working strength 11,767, leaving 2710 vacancies as on 31-12-2006. Besides increasing number of judges in
a phased manner, at all levels, as a first step, it is absolutely imperative to fill existing vacancies at all levels in the
shortest possible period. We have to develop zero vacancy or nearly zero vacancy culture.

Increase in the number of judicial officers will have to be accompanied by proportionate increase in the number of court
rooms. The existing court buildings are grossly inadequate to meet even the existing requirements and their condition
particularly in small towns and moffusils is pathetic. A visit to one of these courts would reveal the space constraints
being faced by them, overcrowding of lawyers and litigants, lack of basic amenities such as regular water and electric
supply and the unhygienic and insanitary conditions prevailing therein. The National Commission to review the working of
the Constitution noted that judicial administration in the country suffers from deficiencies due to lack of proper planned
and adequate financial support for establishing more courts and providing them with adequate infrastructure. It is,
therefore, necessary to phase out the old and outdated court buildings, replace them by standardised modern court
buildings coupled with addition of more court rooms to the existing Increase in the number of judicial officers will have to
be accompanied by proportionate increase in the number of court rooms. The existing court buildings are grossly
inadequate to meet even the existing requirements and their condition particularly in small towns and moffusils is
pathetic. A visit to one of these courts would reveal the space constraints being faced by them, overcrowding of lawyers
and litigants, lack of basic amenities such as regular water and electric supply and the unhygienic and insanitary
conditions prevailing therein. The National Commission to review the working of the Constitution noted that judicial
administration in the country suffers from deficiencies due to lack of proper planned and adequate financial support for
establishing more courts and providing them with adequate infrastructure. It is, therefore, necessary to phase out the old
and outdated court buildings, replace them by standardised modern court buildings coupled with addition of more court
rooms to the existing buildings and more court complexes. As per the information collected by the First National Judicial
Pay Commission, every State except Delhi has been providing less than 1% of the budget for subordinate judiciary
whereas the figure is 1.03% in case of Delhi. During the 10th Plan (2002-2007) Rs 700 crores have been allocated for
priority demands of judiciary which is 0.078% of the total plan outlay. Such meagre allocations are grossly inadequate to
meet the requirements of judiciary. The Government should, therefore, place adequate funds at the disposal of the High
Courts for augmenting the infrastructure.

Establishment of additional courts involves enormous expenditure, capital as well as recurring. If the courts can function
in two shifts with the same infrastructure such as court buildings, furniture, library, etc. utilising the services of retired
judicial officers, who are physically and mentally fit and are reputed for their integrity and ability, that would ease the
situation considerably and accumulated arrears can be reduced, quickly and smoothly. In the State of Gujarat Evening
Courts have already started functioning since 14-11-2006. Presently there are 60 such courts and they have disposed of
57,422 cases between 14-11-2006 and 31-3-2007. The edifice of the administration of justice rests on the shoulder of the
District Judiciary, as the majority of the litigants go only up to the district level. The High Courts have the power of
superintendence over the judiciary but they do not have any financial or administrative power to create even one post of
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a subordinate judge or of the subordinate staff, nor can it acquire or purchase any land or building for courts, or decide
and implement any plan for modernisation for court working. Chief Justices and their companion judges of the High
Courts are the best persons to know the requirement of the judiciary in their respective States. Their assessment and
demand should receive proper consideration and should not be rejected on account of mere financial constraints. They
need to be given financial and administrative power vis- -vis State judiciary to enable them to function effectively.

On the recommendations of the 11th Finance Commission, Fast Track Courts of Sessions Judges were set up for
disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears.
Most of the criminal cases in subordinate courts are pending at the level of Magistrates. 1,66,77,657 criminal cases were
pending before magisterial courts as on 31-12-2006. Keeping in view the performance of Fast Track Courts of Session
Judges, the Government of India should formulate a similar scheme for setting up Fast Track Courts of Magistrates in
each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11-3-2006.

The pendency of civil cases in subordinate courts has increased from 69,25,913 cases as on 31-12-2000 to 72,37,495
cases as on 31 12-2006. It is common knowledge that a large number of pending civil cases are very old. Huge arrears
of civil cases cannot be wiped out by regular courts. It is, therefore, necessary to set up Fast Track Civil Courts and
transfer part of the pending civil cases to those courts for disposal.

As many as 52,01,876 cases involving petty offences were pending in magisterial courts as on 31-12-2006. Since the
pendency before regular magisterial courts is very high, we need to transfer such cases to courts of Special Magistrates
to be manned by retired judicial officers/senior government servants, as decided in the last conference of Chief Ministers
and Chief Justices. The State Governments should take immediate steps to appoint such Magistrates in adequate
number and provide necessary infrastructure for them.

The Malimath Committee has recommended working out of an Arrears Eradication Scheme for tackling cases which are
pending for more than two years. The Scheme envisages identification of cases which can be summarily disposed of
under Section 262 of the Code, as also the petty cases under Section 206 as well as the cases which can be
compounded. It has been recommended that all the compoundable cases be sent to Legal Services Authority for settling
through Lok Adalat. The courts constituted under the Scheme will take up hearing on day-to-day basis. The
recommendation is pending for last more than three years. The Scheme should be formulated and implemented without
further loss of time.

In this era of globalisation and rapid technological developments, which is affecting almost all economies and presenting
new challenges and opportunities, judiciary cannot afford to lag behind and has to be fully prepared to meet the
challenges of the age. It is heartening to note that use of information and communication technology in judiciary is
growing despite various constraints. Day-to-day management of courts at all levels can be simplified and improved
through use of technology including availability of case-law and meeting administrative requirements. Congestion in court
complex can also be substantially reduced through electronic dissemination of information. The objectives that can be
achieved through use of technology include transparency of information, streamlining of judicial administration and
reduction of cost. E-filing has been introduced in the Supreme Court on 2-10-2006. It is now possible for any advocate on
record or petition-in-person to file his matter through internet sitting anywhere in the world. To begin with, we need to
introduce e-filing in the High Courts at an early date. Video conferencing is also a convenient and secure option not only
for giving remand of accused persons lodged in jails but also for recording evidence, particularly of the witnesses who
are not local residents or are afraid of giving evidence in open courts. We need to make extensive use of this facility.

It is not possible to promote usage of ICT in courts, unless proper training at all levels is imparted to judicial officers as
well as subordinate staff. Regular training programmes need to be organised for judges as well as court officials.

Litigation through the courts is just one way of resolving the disputes. Litigation as a method of dispute resolution leads
to a win-lose situation leading to growth of animosity between the parties, which is not congenial for a peaceful society.
We should, therefore, resort to alternative dispute resolution mechanisms such as negotiations, conciliation and
mediation, in which nobody is a loser and all the parties feel satisfied at the end of the day. The main problem being
faced in this regard is that there are not many trained mediators and conciliators. We need to impart training in mediation
and conciliation not only to judicial officers but also to the lawyers. They will have to develop expertise to act as
successful mediators and conciliators. We also need to provide adequate infrastructure for conciliation and mediation
centres by giving them adequate space, manpower and other facilities. The Government being the biggest litigant needs
to be fully involved in the process and its officers need to take lead in this cause.

India today is a vibrant economy treated with utmost respect even by the advanced world. We have taken giant strides in
spheres of education, science, technology, agriculture, industry, commerce, etc. This second most populous country of
the world is now a force to reckon with. Indians, with their grit, determination, intelligence and expertise are now most
sought after work force. We are making rapid strides in almost all the fields. The revolution in the field of communication,
has substantially increased the expectations of an evergrowing population. With the rising of literacy level, proliferation of
channels and increase in the readership of newspapers, there is growing awareness of legal rights, resulting in
substantial increase in the number of cases coming to the courts. We will have more litigation in future when those
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sections of the society, who have remained oppressed and unaware of their legal rights, become more aware of their
rights due to spread of legal literacy, and increased awareness equipped with effective legal aid and advice. Any
increase in the number of cases on account of better awareness of the legal rights is a welcome development and should
not be a cause of concern. We, however, owe a duty to find suitable ways and means to cope with the increased load of
work on the system. Today the judiciary is being increasingly called upon to enforce the basic human rights of the poor
and the deprived ones and this new development is making the judiciary a dynamic and important institution of the State.
It has to devise new methods, forge new tools and innovate new strategies for the purpose of reaching social justice to
the common man. We have to ensure that the fundamental right to a speedy trial does not remain merely a pipedream to
millions of people. The very existence of an orderly society depends upon a sound and efficient functioning of its justice
delivery system. Delay in disposal of cases not only creates disillusionment amongst the litigants, but also undermines
the very capability of the system to impart justice in an efficient and effective manner. Our justice delivery system in spite
of innumerable drawbacks and failings, still commands high esteem and the citizens have placed the judiciary on a high
pedestal. Their faith is our strength. It has to be maintained at every cost. No institution can take for granted the respect
of the community. It has high expectations and constantly demands proof of its utility. We have to ensure that we come
up to their expectations.

I sincerely hope and believe that with sustained cooperation and efforts from Bar, Bench, Governments and society at
large, we will soon be able to remove the deficiencies that have crept into the system over a period of time and deliver
speedy and affordable justice to our people.

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