Report No. 79
V. Legal. and Extra-Legal Factors
1.15. Complicated nature of the problem.-
The very fact that the problem of arrears has received attention for such a long time, and has been considered by so many high powered committees, and yet continues to vex all concerned, is enough to indicate that the problem, by its nature, is not easy of solution. Being very conscious of this fact, we have not, in preparing this Report, been unmindful of the complicated nature of the subject and of the numerous issues involved.
The institution of cases and increase therein is not a matter which can be adequately dealt with merely by legal amendments, though certain aspects thereof could be so attended to. Improvement in the rate of disposal of cases cannot also, in its totality, be achieved by mere statutory reforms, since the human factor cannot be overlooked. This human factor comprises so many elements-the judges, the ministerial staff of the courts, the members of the bar, the parties and the witnesses.
1.16. Judicial system not working in isolation.-
It should also be remembered that the judicial system and the legal machinery do not work in isolation from society. They are parts of the entire social and political system and their efficient working must, to a large extent, depend on the co-operation of other elements of the system. Take a familiar but important example. The service of summonses, notices and other documents issued by the courts-that is to say, prompt and efficient service-pre-supposes the promptness and efficiency of the serving establishment.
Where postal service is introduced, it pre-supposes the efficiency and promptness of the postal authorities. Where service is effected through the Government-as for example, in the case of Government servants-co-operation of the head of the office is needed. Delay in these fields-fields which are, in a sense, outside the legal system-necessarily causes delay in the disposal of cases. In this sense, the role of improvements that are operative only within the judicial system is obviously a limited one in dealing with the problem.
1.17. Limitations of reforms in the system and need to look to the future as well as to the past.-
We are mentioning this consideration, elementary though it may be, in order to indicate that without the active co-operation of other agencies, too much should not be expected of the steps that may be taken to implement the recommendations made in this Report or, for that matter, of any other Report on the subject that might have been given in the past.
1.18. Rate of disposal and rate of institution.-
We would also like to make it clear that it is simple arithmetic that arrears arise when-taking one calendar year-the rate of disposal in that year is less than the rate of institution. If disposal maintains a percentage equivalent to that of institution, then certainly no further arrears would accumulate and the problem would remain only of dealing with the past arrears. It is therefore of importance that any steps that may be taken in the matter should look not only to the past, but also to the future. This is not to say that the backlog must not be attended to. It must also be cleared,1 and, in making our recommendations, we have tried to pay heed to that aspect also.2
1. Paras. 1.27 and 1.28, infra.
2. See Chapter 3, infra.
1.19. Complexity of the problem.-
It cannot be denied that the problem of arrears in High Courts is not only serious in its magnitude, but also complex in its character. In order to elicit opinion on the complex issues involved, we invited views through a Questionnaire,1 copies of which were sent to various interested persons and bodies. The Chairman of the Commission also visited several places for holding oral discussions on the subject with the Bench and the Bar. The Commission is grateful for the co-operation of all concerned who were kind enough to spare their valuable time and expressed their views.
1. The Questionnaire is printed as an Appendix to the 77th Report.
1.20. Efforts in the past.-
With a view to solving the problem of arrears in courts, suggestions have been made for the appointment of more judges, changes in the distribution of business, amendments in the rules of procedure, the elimination of delaying tactics and the like. The problem, however, has persisted, requiring again a review of the position. It is no exaggeration to speak of an impending crisis in judicial administration. To understand how this crisis has come about, it is necessary to inquire into the factors leading to work-loads, and the procedure adopted for the disposal of that load.
1.21. Extra-legal and legal factors leading to work-load.-
The factors leading to judicial work-loads may be broadly classified as extra-legal and legal. For example, with the increase in population, there is naturally an increase in the work of the courts. In addition, our society is with the passage of time getting more complex. These are illustrations of extra-legal factors.
1.22. New rights.-
New rights have been brought into being, and older rights (such as contract and property) have been subjected to Governmental regulation and legal control. New social interests are also pressing for recognition in the courts. In part, the increase is contributed by legislation and by broadened governmental programmes of all kinds, since issues arising out of these ultimately reach the courts for resolution. These factors may be described as legal. All these developments have increased the demands on the law and its institutions, and it is desirable to keep in mind factors leading to increase in judicial business.
1.23. Law Commission-14th Report.-
We have referred above1 to the various Reports concerned with the subject of arrears. Some of them have examined the causes of arrears at length. The Law Commission of India, in its 14th Report2 while pointing out that the problem of arrears in the High Courts has to be viewed against in very large increase in the institution of cases in the High Courts, particularly during the post-Constitution period, summarised the reasons for the accumulation of work in the High Courts in the following manner:
"(1) The arrears can be partly attributed to the increase in both the normal work of the High Court and also the expansion of its special jurisdiction under various Acts.
(2) The coming into force of the Constitution has also greatly added to the work of the High Courts.
(3) The strength of the High Courts was not increased in time to prevent the arrears from accumulating.
(4) There has been large increase of arrears in the High Courts and disposals have fallen short of what they should be in a properly regulated court.
(5) Many unsatisfactory appointments have been made to the High Courts on political, regional and communal or other grounds with the result that the fittest men have not been appointed. This has resulted in a diminution in the outrun of work of the judges.
(6) These unsatisfactory appointments have been made notwithstanding the fact that in the vast majority of cases appointments have been concurred in by the Chief Justice of the High Court and by the Chief Justice of India."
The Commission also recommended certain remedial measures.
1. Paras. 1.8 and 1.9. supra.
2. 14th Report.
1.24. View of High Courts Arrears Committee.-
The High Courts Arrears Committee presided over by Mr. Justice Shah, after stating as many as fourteen causes which, in its view, were responsible for the accumulation of cases1 in the High Courts, recommended certain measures for their clearance. The Report of that Committee concluded thus:
"In the last analysis it is obvious that it will depend entirely on the calibre and willing effort of individual judges in the country not only to clear the back-log but keep down the file without unduly affecting the quality of justice. It is our firm belief that if proper care is taken in manning the superior judiciary in the best possible way with men of ability and character, that will be the surest guarantee for achieving prompt and efficient administration of justice in our land."1
1. High Courts Arrears Committee Report, (1972), p. 91-92.
We may mention that most of the High Courts are not able to deal with old cases along with the current files, with the result that there continues to be a heavy backlog of arrears on their file. In some High Courts, the disposals are not keeping pace even with the institution.1 The courts and their staff have begun to feel oppressed and suffocated on account of the heavy work-load in courts.
1. See Appendix.
1.26. Arrears and remedies.-
Every one is familiar with the arrears in law courts, especially in the High Courts in most of the States. The hard fact of delayed justice has driven not only many Judges and lawyers, but also members of the public, to re-thinking about the court procedures and to search for better ways of getting justice. That congestion of cases in the High Courts is chronic and has been allowed lo run for some time is clear from various Reports on the subject from 1924-to-date. Law's delays is not something peculiar to India, but it should be borne in mind that delay is curable if the Government, the members of the bar and the judiciary set their hearts at it. If the right remedies are applied at the appropriate time, the problem is not beyond solution. The need, therefore, at present is to find out the corrective; the causes are, by and large, well known.
1.27. Disposal of arrears and prompt disposal of current files.-
The recommendations already made by us in a separate Report1 for the disposal of suits and other original proceedings in the trial courts will be helpful in expediting the disposal of cases in these courts. Here we are concerned with the measures needed for the disposal of arrears and the prompt disposal of current files by the High Courts and other appellate courts. In doing this, we have to keep two objectives in the forefront-as indeed our terms of reference emphasise-namely, inexpensive justice and obtaining of speedy justice. At the same time, it is necessary to ensure that judicial decisions should not be hasty and made to depend merely on calculation of time.
1. 77th Report.
1.28. Question of balancing justice and speed.-
In order that the respect which the judiciary has earned may be maintained, it is necessary-apart from any other considerations-to examine the problem of delay and its causes. The elimination of congestion in courts will certainly enhance the public respect for the law and the judges to a very considerable extent where it can be achieved without affecting the quality of justice.
This, then, has been the great question that has faced all Committees and Commissions investigating judicial delay-how to reconcile justice with speed, and what kinds of measures to suggest for expediting disposal while maintaining the quality of justice. One could conceive of a variety of measures: reform in the court structures; improvement in the rules of procedure; augmentation of numbers in the judiciary and in the auxiliary staff; improvement in the conditions of service; and many other reforms.
1.29. Structure of appellate court.- Hierarchy of courts inevitable in modern system.-
As to the structure of courts, by and large, the appellate courts in India are streamlined and the causes of delay cannot be sought in their structure. The structure, no doubt, visualises a hierarchy of courts and a procedure of appeals from one court to the other-but that is inevitable in any modem system. No organised system of administration of justice permits the findings of the trial court to carry a stamp of finality. The fact that the findings are liable to be assailed in appeal, constitutes in a large number of cases a guarantee against arbitrariness, and by itself produces judicial constraint.
It is also essential that so far as questions of law are concerned, there should be a uniformity of decisions.1 Our system, therefore, by and large, contemplates that there should be one right of appeal on questions of law and facts and a second appeal on a substantial question of law to a court whose decisions are binding upon all the courts in the State.2
1. See Chapter 4, infra.
2. See Chapter 4, infra.
1.30. System not alien to Indian genius.-
The system, which is in force in many other countries like the United Kingdom, Canada, Australia and the United States of America, has won the support of most of those who have been dealing with law, and, in our opinion, it would not be proper to condemn it as a legacy of the colonial days. No doubt, every system has to meet the needs of national and local requirements, and whenever we feel the necessity of making changes for that reason, we should not be averse to making such changes as may be called for. But, as already mentioned,1 by and large, the system cannot be decried as alien to the genius of India. In this connection, we would repeat what was said by us in the 77th Report,2 where we observed:
"No judicial system in any country is wholly immune from, and unaffected by, outside influences, nor can such outside influence be always looked upon as a bane. The laws of a country do not reside in a sealed book; they grow and develop. The winds of change, and the free flow of ideals, do not pass the laws idly by. The present day complications and delays in disposal of cases are not so much on account of the technical and cumbersome nature of our legal system as they are due to other factors operating in and outside the courts.
In spite of the fact that we are still heavily dependent on agriculture, we can no longer be regarded as an underdeveloped peasant society, in view of the great strides that have been made in the direction of industrialisation and urbanisation of population, besides expansion of trade and commerce. It will be a retrograde step to revert to the primitive method of administration of justice by taking our disputes to group of ordinary laymen ignorant of the modern complexities of life and not conversant with legal concepts and procedures. The real need appears to be to further improve the existing system to meet modern requirements in the context of our national ethos and not to replace it by an inadequate system which was left behind long ago."
1. Para. 1.29, supra.
2. 77th Report, para. 3.1.
1.31. Observations in earlier Report of the Law Commission.-
The Law Commission presided over by Dr. P.B. Gajendragadkar made the following observations in its 58th Report:1
"We have sound judicial traditions; a coherent pattern developed for the organisation of the judiciary; and a rational and systematic judicial process. There is no doubt that these factors have conferred great advantages on the country. An independent and efficient judiciary, a unified judicial system and a modernised procedure-though legacies of the pre-independence era-have been cherished by us. The judicial system has earned the respect of the people, and the respect so earned is well deserved."
1. Law Commission of India, 58th Report (Structure and Jurisdiction of the Higher Judiciary), para. 2.10A.
1.32. Compulsions of modern society as necessitating elaborate legal rules- Example of Soviet legal system.-
We may mention that even in some of the countries which started with simple legal rules, the compulsions of modern society have led to a situation wherein they could not avoid having elaborate and cumbersome legal rules. We may in this context refer to a recent study1 about the Soviet legal system, wherein it is said:
"During the period immediately following the Bolshevik Revolution of 1917 there were devout Communists who believed that their new polity would offer the world a model of a different kind of judicial system. They intended to do away with complex legislation and procedures, to eliminate the roles of lawyers and even prosecutors, and to substitute for professionally trained judges wise laymen who would hear disputes presented by the parties themselves and then make their decisions according to the principles of socialist morality as much as formal norms.
Justice was to be simple, quick and inexpensive and would not require an elaborate system of appellate review, judicial precedents, legal education, or legal scholarship. Within five years this aspiration was shattered. A frenzy of experimentation had produced not the simple, locally oriented judicial system that had been anticipated, but a rather complex and centralised one with institutions that bore embarrassing resemblances to those of imperial Russia and the West European tradition from which the last three Tsars had borrowed.
Judges found it too inconvenient to try cases without the assistance of a public prosecutor, defence counsel, and carefully prescribed procedures, and the courts of the nation were being subjected to ever greater uniformity of decision through the revival of appellate review and the issuance of statutes, decrees, and texts designed to guide the judiciary. 'The primitive concept of judicial procedure had collapsed under the burden of practice', as Professor John N. Hazard concluded 'The formative years had proved to men who expected to avoid complexity and formality that there was no alternative'."
1. Jerome Alan Cohen Will China Have a Formal Legal System, (1968), Vol. 64, American Bar Association Journal, pp. 1510-1511.
1.33. Ancient Indian system also one of regular hierarchy with sophisticated system.-
In the context of the judicial system in ancient India, we had occasion, in the 77th Report,1 to point out that with the grown of society, the function of administration of justice was transferred to the King, who came to be regarded as the fountainhead of justice, and that a regular hierarchy was set up which gradually developed into a sophisticated system.
1. 77th Report, paras. 3.2 and 3.3.
1.34. Dilatory tactics.-
Reverting to delay, it may be said that it is sometimes due to dilatory tactics adopted by one party who attempts to protract the proceedings of the court. The courts must be in a position to control such acts and to see that the case proceeds in conformity with the rules and according to Schedule.
1.35. Rules of procedure not responsible.-
The rules of procedure, on the whole, are simple and devoid of unnecessary technicalities, so that it cannot be said that these rules are responsible for holding up the hearing of cases. Improvements in procedure and administration may, no doubt, be desirable, and will be suggested in due course, but they will not, by themselves, alone solve the problem.
1.36. Volume of work.-
Moreover, the best of rules and the best of judges may be helpless in the face of sheer volume of work. This aspect would suggest that attention will have to be paid to the strength of judges also. Again, it is desirable that the number and quality of judicial personnel is put to the optimum use by proper distribution of business. Thus, the solution lies not in this or that measure, but in a number of measures taken together. Finally, these measures, once adopted, will not solve the problem for all times to come. Periodical review of the impact of measures taken will be needed-an aspect to which we shall revert at the end.1
1. Chapter 19, infra.