When Justice is Delayed

By Prabhakar Timble
01 May 2016 08:38 IST

The poor judge-population ratio became the main issue accounting for the crisis in the Indian judiciary in the context of pendency of litigation in the temples of justice at the recent conference of Chief Ministers, Chief Justices of the High Courts and the Supreme Court judges. The theatrical presentation with tears in eyes by the Chief Justice of India T. S. Thakur before Prime Minister Narendra Modi brought the issue of vacancies in judiciary before the national stage. Shedding tears in public is an innovation in public relations selectively used by politicians to gain public sympathy. Such a show of emotion and a public exhibition attempting to make a virtue out of pendency is not expected from the head of Indian judiciary.

Judges relish castigating the elected representatives on getting an opportunity.  They rebuke the urban bodies and village panchayats for failure on solid waste management unmindful of the resource crunch faced in terms of money and human power. The judges rejoice when media projects judiciary as the only savior of justice and democracy. Prime Minister would be delighted being provided a prospect to gather credit points as he ceased the occasion to announce a close-door meeting. It could be one more feather in his “paheli baar” garland and the NaMo media brigade going excited that it is for the first time that any Prime Minister made such a response.

The estimate of pending litigation before the courts is around 3 crore cases. The demand is to raise the strength of the judges from the present level of 18000 to 40000. We are told that this is based on the recommendation of the Law Commission in 1987. Considering that around 30 years have lapsed, the requirement would be more if the ratio of judges to people has to be maintained at 50 per million from the present figure of 15.

Favorite demand, no solution

I have no hesitation in underlining that pendency cannot be solved with mere judicial appointments, though it is conceded that additional judges would be required at certain levels and locations.  First of all, it is not feasible in terms of cost to the government which means cost to the people. Secondly, it is impossible to get the numbers i.e. people with integrity as required to perform judicial function. This is important because judiciary is the final word. We know judges can be managed.  Judges are as pliable as bureaucrats, which makes expansion more difficult and challenging.

Increasing the number of judges may not always solve the problem automatically. Moreover, more judges is a preferred solution for hiding inefficiency. There is definitely huge scope to reduce pendency by stepping up productivity of judges and through ‘well-managed’ courts and judicial administration. The correlation between strength of judges and pendency is not necessarily strong.

 

The Indian judiciary should realize that unless the delays and pendency are brought within tolerable limits, it cannot accept the award of being considered as the only pillar in which the people can repose faith and confidence. What we consider to be a ‘congestion’ of litigation would have become an avalanche if the courts were affordable to the majority. I am not referring to the court fees but the unaffordable fees of the legal professionals for knocking the doors of the higher judiciary.

Out-of-the-box thinking

Delay in justice is much more than a denial of justice. There are ‘hidden’ costs of delay which are manifested in the form of executive lawlessness and corruption in public offices. In the era of globalization and foreign investment, delays hinder business and flow of capital. Delays of the type we experience in Indian judiciary provide a hidden premium and incentive to law violations and punishment to obedience.

The judiciary has to explore out of the box alternatives for fighting pendency along with filling of vacancies of judges. Petty and garden-variety criminal cases languishing in courts for over 10 years could be considered for mass burial. Civil matters in ordinary courts pending for similar years could be examined under alternative dispute mechanism. The government being a major litigant, litigation involving government and citizen may well be taken differently rather than in the form of adversary jurisprudence.

The high profile cases which provide fodder to media is a criminal waste of judicial time. The opportunity cost of such cases measured in terms of time lost for routine litigation is very high. Judiciary also needs to professionally and critically look at the criteria for appeals and the length of trials.

An independent judiciary is held as a part and parcel of the basic structure of the Indian constitution. This should not come in the way of the judiciary evolving a system of performance appraisal for judges and the courts. I would call this as the area of institutional efficiency in which judges should be required to contribute to answer the challenge of delays and pendency. Appraisal should be in terms of data of courts, clearance ratios (cases disposes to cases filed); congestion ratios (cases pending and filed to cases resolved), handling allegations of corruption against individual judge and the court and measurable yardsticks of court management..

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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