Daily Times

The allegation of sexual harassment against the chief justice of India has captured the headlines, but there is a much deeper malaise in the Indian judiciary which has been overlooked, that is, the inordinate delay in disposal of cases. Cases drag on, often for decades. Because of this people are losing faith in the judiciary. Judges are often accused of not deciding cases expeditiously and not working hard. But most people are not aware of the problems the judiciary faces.

When one of us, Justice Katju, was a judge of the Allahabad High Court, the court set a norm: no judge of the subordinate judiciary should have more than 300 pending cases before him at any point in time. The Kanpur Nagar chief judicial magistrate, a judge in the subordinate judiciary, met Justice Katju at Allahabad and informed him that there were 30,000 cases pending in his court alone. The Ghaziabad chief judicial magistrate, reported that there were 21,000 cases pending in his court. During a recent visit to Bulandshahr, Justice Katju leant from the chief judicial magistrate there that 25,000 cases were pending before him.

The Allahabad High Court had also set a norm that a sessions judge should not have more than 75 trials pending at any time. The Bulandshahr sessions judge informed Justice Katju that currently 1,600 sessions trials were pending before his court.

It is evident from these figures that the work load on the Indian judiciary is a staggering. If a man can carry a 100 pounds weight but an elephant is placed on his head, what can be expected? That is what has happened to the Indian judiciary. There are about 33 million cases pending in the Indian courts today. It is estimated that if no fresh case is filed, it will take about 360 years to clear the back log. That being the situation, there is no point in blaming the judges. Radical step need to be taken in this regard and that can only be done through parliamentary legislation.

There are about 33 million cases pending in the Indian courts today. It is estimated that if no fresh case is filed, it will take about 360 years to clear the back log. That being the situation, there is no point in blaming the judges

It may be useful to study the actions taken in the USA which faced a similar crisis during the early 20th century, namely, an alarmingly large number of cases pending in courts. The US authorities took radical action by creating a system of alternate dispute resolution mechanisms viz arbitration, mediation, conciliation etc. Today barely 7 per cent of the cases filed in the US courts are decided by the courts. The remaining cases are decided by alternate dispute resolution mechanisms. Every court has Arbitration and Mediation Centers attached to it. Most civil cases and minor criminal disputes are resolved there. In this way most of the load on the courts is diverted to the ADR mechanisms.

As many as 5,000 to 6,000 petitions are filed every year before the United States Supreme Court. Only about a 100 to 150 of those are admitted for hearing. The rest are dismissed even without oral hearing. A case is admitted for hearing only if 4 of the 9 judges vote to admit it. Otherwise, it is dismissed without hearing. The State Supreme Court is regarded the last appellate court for most cases. The US Supreme Court only takes up cases of an exceptional nature i.e. those involving issues of national importance or serious legal issues where public interest is involved or where some grave injustice has been done. Otherwise, the US Supreme Court does not interfere even if it feels that the State Supreme Court judgment was incorrect. The Indian Supreme Court too needs to have a similar approach now.

Article 136 of the Constitution of India was never meant to make the Supreme Court a regular forum of appeal. It was a residuary provision which enabled the Supreme Court to interfere in exceptional cases. Otherwise, ordinarily the High Court should be the last court. Unfortunately, all kind of cases are entertained under Article 136, some of which never deserved to be entertained. There are no settled criteria.

One of us, Justice Katju, had in 2010 referred a matter (Mathai Alias Joby vs George & Anr.) to a larger bench to fix the criteria as to what kind of Article 136 petitions should be entertained. In fact, in the said matter, the bench suggested the categories of cases which would be fit to be entertained by the Supreme Court under Article 136 viz cases of national and public importance, challenges to the validity of State and Central Acts, matters concerning infringement of fundamental rights of citizens, matters involving substantial questions of law and interpretation of constitution and settling differences of opinion on points of law between various High Courts. However, in 2016, the larger bench consisting of five judges refused to revisit the scope of Article 136, thus failing to restrict the unrestricted use of Article 136 which has effectively made the Supreme Court a court of regular appeal.

These are problems which can only be resolved by parliamentary legislation. We recommend that the Government of India form a committee chaired by the Hon Chief Justice of India and having as its members some senior Judges of Supreme Court and High Court, the Union Law Minister and Attorney General, distinguished jurists and some young lawyers on it to consider what has been mentioned above and introduce legislation in parliament for this purpose, including a constitutional amendment for amending Article 136.

Apart from the aforesaid step at a legislative level, ADR mechanisms need to be further entrenched in the minds of the Indian bar and bench. The bar has to dispel misplaced fears of viewing settling of disputes via mediation as a threat to their legal practice and incomes. In the US, most attorneys double up as mediators, thus incentivizing them to work as trained mediators. In fact, about 50 per cent of the members of the American Bar Association are lawyers who are also mediators. Most of these lawyers-cum-mediators have bigger incomes than lawyers who do not act as mediators. There is no reason why the same cannot be done in India.

Arbitration these days has become the most sought after mechanism for resolving disputes of high commercial value. There is no reason for cases of lower commercial value not getting resolved by arbitration. Young advocates should be effectively trained and mentored by seniors at the bar to act as arbitrators for cases of such nature. Retired judges of the superior judiciary, too, should volunteer to act as arbitrators in cases of low commercial value too and not restrict themselves to only high commercial value cases.

If this is not done then we regret, the judiciary which is on the verge of collapse will actually collapse, very soon.

Justice Markandey Katju is a former judge of the Supreme Court of India

Aditya Manubarwala is a law clerk and research assistant at the Supreme Court of India