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Report No. 125

3.10. An analysis of the causes for delay in disposal of cases and consequently piling up of arrears has been done by a legal academe. He is of the opinion that conceding that looking to the legal system which makes inevitable a certain time consumption for arriving at authoritative and fair decisions, 'we must approach the problem of the overload in terms of institutional factors, which, by their very nature, can be changed with a view to enhancing expedition as an aspect of equity'.1 He categorised the factors contributing to in expedition in at least four categories:

(i) Government-caused delays,

(ii) court-caused delays,

(iii) Bar-caused delays, and

(iv) litigant-caused delays.

Under the heading 'Government-caused delays, he adverted to the delay in filling in vacancies and failure of the Government to make realistic assessment of the judicial manpower needed for maintaining an efficient and a just justice administration. He has also analysed causes for delay in the trial and first appeal level courts but, as this report deals with the Supreme Court, it may not be necessary to refer to the same in detail.

Under the heading 'Court-caused delays', he suggested drawing up a manual of court management for all level of judiciary and that there should be a training programme for the judicial officers. He also advocated holding of seminars to understand the new and comparative methods of court management.

Under the heading 'Legal profession-caused delays,' he states that inequitable distribution of work coupled with forensic habits contribute to the escalation of time taken in disposal of cases which tend to enhance arrears. Under the heading 'Litigant Caused delays', he poses a question whether greater litigiousness, which has become evident since the advent of the Constitution, shows an increasing rights consciousness and access to law.2

1. Dr. Upendra Baxi The Crisis of Indian Legal System, p. 64.

2. Id., pp. 64-78.

3.11. Shri H.M. Seervai focuses his attention on the Supreme Court: Its Working and the Problem of Delay.1 His analysis reveals various causes which, according to him, have contributed to the present situation. Briefly stated they are that the statement of case is unnecessarily dispensed with by the Supreme Court and outline of arguments is not an adequate substitute for a well-drawn statement of case. Another reason advanced by him is that the Judges generally, and the Judges of the Supreme Court in particular, intervene too much in the case.

The third reason, according to him, is that unless the Judges have clear head, sound knowledge of the law, the gift of simple and clear speech and the gift of attentive silence and avoiding wrangles with the counsel, the delay in disposal of cases is inevitable. One more reason, according to him, is that some Judges have a bias for certain causes such as labour law cases.

According to him, the Judges must be value free, value neutral, because the Constitution of India has no fixed "philosophy" or no fixed "values".2 The next cause, according to him, for the delay is the multiplicity of concurring and dissenting judgments.3 The panacea recommended is to follow the Privy Council and the House of Lords without question. Total absence of accountability of the judiciary as an important factor has not met with his approval.

1. H.M. Seervai Constitutional Law of India, 3rd Edn., Vol. II, p. 2454.

2. Id., p. 2492, para. 25.434.

3. Id., p. 2477, para. 25.411.

3.12. The steps taken by the Supreme Court itself to expedite disposal of cases may now be noticed. They are as under. In the years 1978-79 a Committee was set up by the Chief Justice of India to suggest ways and means to tackle the problem of arrears. It is not known whether this Committee submitted any report. As the spectra of mounting arrears was haunting, amongst others, a full Court meeting of the Judges of the Supreme Court, presided over by the then Chief Justice in the year 1983, resolved to specify some matters which can be disposed of by a single Judge of the Court.

The importance of this decision may be appreciated in the light of the provision that ordinarily every matter coming before the Supreme Court has to be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice.1 The incongruity of this provision can be visualised from the fact that in the High Court, numerous matters are disposed of by a single Judge but if a petition for special leave to appeal is preferred against the decision of a single Judge of the High Court, the same has to be heard as hereinabove indicated by a Bench consisting of not less than two Judges.

Therefore, the full court specified matters which can be heard by a single Judge in the Supreme Court. To attain the object underlying this decision of the Supreme Court, the Supreme Court, in exercise of the power, conferred by Article 145 of the Constitution, to regulate generally the practice and procedure of the court, framed a proviso to rule 1 of Order VII, which reads as under:

1. Order VII, Rule 1 of the Supreme Court Rules, 1966.

"Order VII, rule 1.-Subject to other provisions of these rules, every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice:

Provided, however, that the following categories of matters may be heard and disposed of finally by a Judge sitting singly nominated by the Chief Justice:

(1) special leave petitions arising out of the decisions or orders of a single Judge of a High Court or of a member of a Tribunal sitting singly,

(2) bail applications,

(3) applications for substitution other than those falling under rule 1(15) of Order VI,

(4) summons for non-prosecution,

(5) applications for exemption from paying Court-fees,

(6) applications for extension of time for paying Court-fees or for furnishing undertaking, bank guarantee or security,

(7) applications for disposal of an appeal in terms of a compromise petition,

(8) applications for withdrawal of special leave petitions, appeals or writ petitions."1

1. Id., proviso to Order VII, Rule 1.

The rule-making power conferred by Article 145 of the Constitution is conditional in that the Court can frame the rule with the approval of the President. The President accorded his approval to this rule. The rule became operational from 30th July, 1983. A period of five years has rolled by and yet it is a matter of regret that the rule is not implemented. If this rule was implemented, instead of 8 Courts hearing admissions on Monday, 17 or 18 Courts may be hearing the same and the turn out will be multiplied manifold.

It is not possible to discern with accuracy the reasons behind reluctance to implement this rule. Presumably the Supreme Court Bar Association has resisted the implementation, though in a discussion with the former Chief Justice of India, he asserted that the Bar has veered round to co-operate in implementing the rule. The unfortunate fact remains that the rule is not implemented. In fact, in fairness to the Court, it may be pointed out that the Supreme Court itself claims to have taken some steps to tackle the problem of arrears. These steps may be listed:-

"(i) Matters involving common question of law are grouped together and listed in groups so that they can all be disposed of together.

(ii) In most of the matters, printing of the appeal record is dispensed with, which saves a lot of time and expenses of the litigants. In criminal appeals, counsel for the appellant is required to file cyclostyled record to save time, which would otherwise be taken in getting the record printed, so that the matter could be heard orally.

(iii) To save the Court's time, Hon'ble the Chief Justice is taking mentioning matters, which takes about one hour on each day, after the Court hours. (now discontinued).

(iv) Supreme Court Rules have been amended empowering Hon'ble Judge in Chambers and the Registrar to dispose of certain types of matters which have previously been listed in the Court. This has been done to save the Court's time.

(v) Specialised Benches re-constituted by Hon'ble the Chief Justice and particular types of matters are assigned to such Specialised Benches for quick disposal.

(vi) Computer technology is soon going to be introduced in the Supreme Court, which is expected to help reduce the backlog of cases considerably.

(vii) Recently, Hon'ble the Chief Justice has directed that the counsel in each matter should file written arguments, if the arguments are to take more than five hours on each side. The oral arguments on each side (sic) are thus restricted to five hours unless the Court feels that more time is to be given to the counsel, in which case a maximum of ten hours are given for oral arguments to the counsel of each side. The length of oral arguments by counsel of both the sides has thus been curtailed with a view to securing quick disposal of matters.

(viii) The Court Administrator-cum-Registrar, who is a senior judicial officer, has been appointed very recently so that in conjunction with the present two Registrars, there can be a re-organisation of the working of the Registry and improving its techniques and efficiency.".1

1. Source: Answer by Hon'ble the Minister of State in the Ministry of Law and Justice to Unstarred Question No. 1646 on 10th March, 1986, in Rajya Sabha.

3.13. As against these effective steps to deal with the situation, very recently the Supreme Court has enlarged its jurisdiction by holding that a writ petition can lie to it under Article 32 against its own judgment between the same parties. Commenting on this judgment, a national daily stated that "The Supreme Court judgment in the Antuiay case is likely to open the floodgates for appeals against its own judgments when previously there was a finality about them".1

This recent judgment of the Supreme Court is in teeth of a nine Judges Bench judgment wherein it was held that "it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction"2, namely, by a petition under Article 32 of the Constitution.

If a judicial order passed by a High Court cannot be corrected by a writ petition under Article 32 to the Supreme Court, that judgment is a, greater authority of the proposition that a judicial order passed by the Supreme Court cannot be the subject-matter of the writ petition to itself under Article 32 and more specifically between the same parties.

Avoiding any comment on the judgment, it needs to be pointed out that every decision of the Supreme Court would now be amenable to a petition under Article 32 of the Constitution and, therefore, it is impossible to foresee with certainty the torrential inflow of litigation. It further needs to be pointed out that while on the one hand the Supreme Court declined to entertain a writ petition under Article 32 of the Constitution even where it was competent3 yet on the other hand it opens its own gate so wide by a hitherto unknown jurisdiction encouraging persons to approach it to question its own decisions.

1. Editorial in The Hindustan Times, dated May 3, 1988.

2. Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744.

3. AIR 1982 SC 149; (1987) 4 SCC 609.

3.14. While discussing the causes, the remedies offered have also been adverted to. It is an undeniable fact that nothing so far recommended has even remotely improved the situation. It is, therefore, inevitable that drastic remedies will have to be prescribed to reprieve the situation before the situation gets totally out of hand.



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