Report No. 77
Law Commission of India Delay in Disposal of Cases and Pending Arrears in Courts
For some time past, public attention has been focussed on the problem of delay in the disposal of cases and pending arrears in the courts. Statistics relating to judicial business, in general, show a continuous increase in the volume of pending litigation. There is already a backlog of cases in many courts; further increase may put a severe strain on the largely over-burdened judicial machinery, and pose a pressing challenge.
In specific terms, the figures of institution; pendency and disposal of cases in the High Courts and subordinate Courts show that the burden has been constantly increasing. The judicial system, by and large, is working well, and this is reflected in the relatively high popular esteem of the courts. But it is apprehended that the increasing volume of cases before the courts might affect the quality of justice and shake public confidence in the courts.
The Law Commission of India has, in conformity with its terms of reference, decided to elicit informed opinion on the subject by means of this Questionnaire.
This Questionnaire, it is needless to say, is not based on any pre-conceived notions as to the remedies that should be adopted to reduce the arrears. The objective is to explore all possible avenues, and to elicit opinion in the hope that ultimately an effective and practicable solution, substantially acceptable to all concerned, might emerge.
Efforts and proposals, to solve the problem of arrears in the Courts have been many and varied in the past. There have been suggestions for the appointment of additional 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 workloads and the procedure adopted for disposal of that load.
The factors leading to judicial workloads 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 court. In addition, our society is now far more complex than twenty-five years ago. These are extra-legal factors.
New rights have been brought into being and older rights (such as contract and property) have been made subject to Government 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 programme 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 ascertain the factors leading to increase in judicial business. The first few questions therefore solicit views on this aspect. In terms of improving disposal, two general approaches are available. The resource inputs [Judges, clerks and facilities] can be increased, or the existing resources can be utilised more efficiently.
It is axiomatic that the workload of a court is determined by the number of cases that have to be handled, multiplied by the average amount of work that has to be performed in connection with each case. The volume of institution and the rate of disposal, therefore, form the subject-matter of the bulk of the questions. The time that is needed for disposal necessarily involves an examination of the procedure for disposal-which has been dealt with in a few questions.
The workload so arising has to be distributed amongst the Judges available. Their numerical strength, and the time actually applied by them in disposing of the workload are therefore relevant and form the subject of a few questions. Attention has also been paid to the question of adequacy of the staff of the Courts.
Bearing in mind that the overall reduction of arrears could be achieved by improving one or more of these three factors, namely, by reduction in the number of cases, reduction in the average amount of work that has to be performed in connection with each case and reduction of the workload of each Judge (by increase in the total number of judges), the Commission has, in the Questionnaire, included questions that deal not only with the organisation of the courts, the number and selection of Judges and the distribution of business, but also with certain suggestions concerned with jurisdiction of courts. Attention has also been paid to the aspect of distribution of business.
Many of the questions focus attention upon the appellate process and appellate jurisdiction. Nobody can object to a given volume of appeals, however large or for that matter, to a given volume of any other type of litigation but if the volume has a serious effect on the speed of disposal, or otherwise has an adverse impact on the judicial process, the matter requires attention.
A view has been expressed that if the High Court is to function well, it is important that certain judges should specifically be assigned to deal with specific subjects so that they can develop expert knowledge in the field. Some of the questions, therefore, deal with this aspect.
The questions relating to delay in the subordinate courts take into account the recent amendments in the Code of Civil Procedure, 1908 and the recent revision of the Code of Criminal Procedure, 1973. It may be that experience of the working of the amended or revised law has not yet been long enough to justify further changes. However, the Commission would like to elicit informed public opinion on the relevant issues.
Some of the questions might appear to carry radical implications. In putting forth these questions, as already stated, the Commission has no pre-conceived notions. The hard facts of delayed justice have, however, driven many persons to a re-thinking about the existing system.
The solution may not be found in any single administrative or procedural measure or merely in the increase in the number of Judges or Courts, but in a combination of several measures, and the efficient use of judicial time and the active co-operation of the legal profession with the Courts in the expeditious disposal of the work of the Court.
It is in this background that the Law Commission of India has decided to elicit views on various aspects of the problem of arrears. The Commission will be grateful for reasoned and detailed expression of views on each question. On any matter not covered by specific questions but regarded as relevant to the problem of arrears in the Courts, suggestions are of course, welcome.