Judicial Delays in Administration of Justice

Distinguished Panelists, the Principal of Kristu Jayanti College of Law, Faculty Members, academicians, my dear law-students, participating Ladies and Gentlemen. Namaste! Subodayam! Vanakkam! All protocols observed. Greetings to you all, from the Republic of Seychelles. I am very delighted to be invited to deliver a lecture on the subject the ' Judicial Delays in Administration of Justice'. I am most grateful for the honour, opportunity and time you have given me to share some of my thoughts with you, on this interesting theme. Please, forgive me, if I take the liberty of speaking my mind without reserve, and at times, being outspoken perhaps, outstepping my jurisdiction and expressing my personal views on many issues in this discourse; but all I do with utmost humility respecting the differing views of others.

At the outset, I must tell you that generally ' delay' or ' procrastination' of any action that we perform in our day-to-day life, for that matter, not only weakens the desired result of it, but also at times, such delays defeat the very purpose for which we perform those actions. Obviously, Judicial delay coupled with an alarming increase in the number of backlogged cases in our Courts and in many other countries is now, posing a constant threat to an effective and efficient administration of justice. Rule of law and good governance are put in peril. Above all, the very foundation of justice namely, public confidence in the existing justice delivery system and overall in the judiciary is diminishing. After all justice is rooted in public confidence. The issue of judicial delay and backlog of cases is not peculiar only to India, it is common among many other countries worldwide and has affected many jurisdictions.

For instance, according to the Economic Survey 2018-19, there are about 3.5 crore cases pending in the Indian judicial system, especially in district and subordinate courts. According to a recent survey the Supreme Court of India has nearly 61,000 pending cases. The High Courts have more than 40 lakes pending cases of which nearly 94% have been pending for 5-15 years. The World Bank Report of the same period also shows that the time taken to decide a case in Indian Courts has remained static at 1,445 days. This issue raises a serious public concern. How are we going to cope with the ever increasing ' backlog' in our system and deliver timely justice to the ordinary man?

Whereas, the Preamble to our Constitution has placed justice - social, economic and political - in the highest pedestal, above all the other features like liberty, equality and fraternity. Needless to say, justice delayed is justice denied. Indeed, ' delay' is not a simple postponement of an action over a period of time, but in a judicial sense, it is ' an action in process' that has irreversible long term consequences. This ' process' , with the progress of time, slowly, stealthily and silently kills justice.

The evolution of right to speedy justice, its jurisprudence and the line of its growth now, as fundamental human right historically originates from the mother of all Constitutions of the world, the famous Magna Carta of 1215, the doyen of the English law of the 13th Century. Section 40 of this great Charter reads thus:

'To no one will we sell, to no one will we deny or delay right to justice'

The last four words namely, ' delay right to justice' of the 13th Century expression, born of political revolution, are historically very significant in the evolution of human rights. They are still relevant to the human rights situation of today. Therefore, delay in administration of justice is not a new social phenomenon; it is as old as Magna Carta, and even much older, if I may say so. Theologically speaking, with due respect to all religious faiths and gods, delay in Justice is as old as Adam and Eve. Despite, God in His power and wisdom had ordained that Adam and Eve shall die on the day they eat the forbidden fruit in the Garden of Eden (see, Genesis 3.2), it took 930 years for His order to be executed. Even the execution of God’s sentence of capital punishment was thus delayed, for reasons, only God knows! Hindu scriptures too, show that the issue of delay in justice has been in existence ever since Vedic period. The ancient book Yajurveda stipulates under Chapter VIII, Verse 50 that rulers should be committed to speedy justice and solutions of problems. From this exposure of its origin, let it not be thought that I am justifying judicial delays in the existing justice-delivery-system. I am not.

• Historically, the 6th Amendment to the Constitution of the oldest democracy, the United States of America also provides that ' in all criminal prosecutions, the accused shall enjoy the right to a speedy and public hearing' .

• The right to hearing within a reasonable time is also recognised in the Universal Declaration of Human Rights of 1948; and it is also guaranteed in the Charter of Fundamental Rights of the European Union, in the African Charter on Human Rights, in the Canadian Charter of Rights and Freedoms. The Constitution of the Republic of Seychelles also guarantees explicitly under Article 19(1) that right to a fair hearing within a reasonable time as fundamental right to every person.
• Thus, right to justice within a reasonable time is not only a fundamental right, but also a prerequisite of maintaining rule of law, good governance and public confidence in the judicial system.
• Hence, right to justice within a reasonable time is now accepted as universal human right and so occupies the center stage of national and judicial goals of all civilized democracies in the world.

All modern democratic constitution of the world provides for the right to ' hearing within a reasonable time' and in some jurisdictions it is also extended to civil litigations.

Now, the repeated use of the phrase ' within a reasonable time' which runs as a common-golden thread throughout all those Constitutional provisions may puzzle a law-student particularly, the term ' reasonable' as this epithet appears to be vague, imprecise and uncertain. One may reasonably ask ' What does the term ' reasonableness' mean in the context of setting a time frame in this respect?'

In determining the issue of reasonableness in the context of setting a time-frame for the final disposal of a particular civil or criminal matter before it, the court has to make a subjective assessment of the entire facts and relevant circumstances peculiar to that particular case on hand, and in that light should consider whether the duration taken or likely to be taken from the time the case was filed in Court until such time the judicial process ends to give final disposal to the matter, is reasonable or not. In considering reasonableness, the duty of the decision-maker is to take into account, all relevant circumstances as they exist at the date of the hearing that he must do in what I venture to call a broad commonsense way, not as a judge sitting in the ivory tower, cutting off from the sensitivity of the community but as a man of the world, and come to his conclusion giving such weight, as he thinks right to the various factors in the situation. Some factors may have little or no weight; others may be decisive, but it is quite wrong for him to exclude from his consideration matters, which he ought to take into account. In this exercise, in my considered view the Court may also take judicial notice and cognizance of certain matters, which are so notorious or clearly established or common knowledge, evaluating them as facts proved otherwise than by evidence.

I hope this dictum would throw some light on the understanding of the term ' reasonable time' vis-à-vis ' Judicial delay'

Having said that, it is interesting to note that the Constitution of India does not specifically provide for the right to speedy trial or hearing within a reasonable time, either as fundamental right or otherwise. It apparently remains silent in this respect. This silence should not be seen as a lacuna or misinterpreted that Indian Constitution is outdated or stagnant or inadequate. It is not. The Constitution of India is an organic living institution. It evolves, grows progressively over time, and adapts itself to new circumstances, without being formally amended by the Parliament but it does take place subtly through pragmatic judicial interpretation setting case law for future applications with effectivity. We have an active, strong and progressive judiciary, which from time to time, swiftly and wisely interpret and gives force and life to constitutional provisions and is paving the way to social justice clearing of all obstruction. Thus Judicial activism is so vibrant and it fine-tunes and updates the Constitution effectively, to meet the changing and challenging needs of time, society providing the necessary growth to it, and promoting justice - social, economic and political as contemplated in the Preamble. Indeed, in 1979 the Indian Judiciary in its wisdom broke that apparent constitutional silence on the concept of speedy trial. It filled the gap through interpretation of the Constitution and adopted incorporating the international human right norms on speedy trials to advance our constitutional growth with that of the others in the modern world. Accordingly, it made a dictum in Constitutional law setting a precedent for the future.

In the landmark case of Hussainara Khatoon v. Home secretary, State of Bihar [AIR 1979 SC 1360] the Supreme Court held that the judicial procedure should be reasonable, only when it ensures, reasonable and quick trial. The court also categorically pronounced that expeditious trial is an integral and essential part of the fundamental rights to life and personal liberty enshrined in Article 21 of the Constitution. This remarkable dictum was destined to have important constitutional significance and consequence had to follow.

Having said that, a court of law, be it superior or lower, appellate or trial in the judicial hierarchy, in my view, it should steer the law towards the administration and delivery of justice within a reasonable time, rather than the leisurely mechanical administration of the letter of the law and procedures. Timeliness is absolutely necessary to the achievement of justice. In that process, undoubtedly, its primary function amongst others, is obviously, to adjudicate and give finality to the litigation, but in criminal matters more importantly, justice must also be delivered within a reasonable time, not only in the interest of the accused, but also that of the victim and above all in the larger interest of the nation and its people.

Sadly, at times inordinate delays in the justice delivery system result in the criminalization of politics and politicization of criminality. It is truism that the criminal law is based on the fundamental principle that an accused person is presumed to be innocent till proven guilty. He is released on bail pending the final determination of the case. If the case is procrastinated in Courts, for instance, 15 or more years, a criminal can remain free, beyond the clutches of the courts, sheltering under different shades of politics, contests elections and become a Member of Parliament or State Legislative Assembly or even a Minister at the Centre or in the State government or at times even glitter as a star in the horizon of politics because he has not been proven guilty yet. Thus, inordinate delays in the justice delivery system gives criminals, who committed crimes, enough freedom, time, favourable circumstances and opportunity to destroy or even to manipulate evidence, tamper witnesses and records. Such delay also works as a double edged-weapon. It may also in many cases, cause prejudice and works injustice to the accused persons as well, who are facing serious charges. They may have the best defence-evidence available to prove their innocence, but because of undue delay, they may not be able prepare, proffer and present their evidence in Court at the time of trial due to many factors such as the death of a key Defence-witness, fading or lapse or loss of human memories, loss or destruction of documents etc. The delay itself destroys the authenticity of the evidence.

With due respect, it is my humble view, the good sense of the Court, should always foresee the long term ramifications of the judicial delays and adjudicate the cause so as to prevent or control the contingent delays that could possibly, proliferate in future, due to multiplicity of litigations on the same cause or matter. Needless to say, prevention of potential delays with judicial foreseeability is always better than cure. Therefore, our Courts in India - like any other Court of such foresee ability and sense would do elsewhere - should speed up trials and adjudicate the disputes accordingly and prevent chronic delay that has cancerously afflicted our justice delivery system.

After all, the law is simply a means to an end; that is, justice. If the means in a particular case fails to yield the desired result in time, due to procrastination repeated appeals, reviews, remittals, writs, abuse of process, frivolous and vexations stays, retrials, unnecessary adjournments which all when drag on the cases for decades, the Courts- have to rethink, reinvent, reinterpret and sharpen those means, the tools in order to eradicate the judicial delay, the enemy of justice, as Lord Lane once remarked. Hence, the Courts should never hesitate, where circumstances so dictate, to adopt measures that are just and expedient to prevent the delays, procrastination and the resultant public frustration in the due administration of justice. Now then, I would simply ask: Which is to be preferred the ' means' or the ' end' ?

I have to ventilate what a voiceless common man in the remote corner of the rural India feels and grumbles about the prevailing ' judicial delays' , when some Courts short-sighted by the letter of the law, prefer the ' means' over the ' end' and defeat justice. Faced with glaring injustice caused to a citizen due to procedural delays or legal technicalities in a particular case, we, judges cannot adjust our spectacles on the nose and say ' oh, there is nothing I can do about it, in this case as agency X or department Y is responsible for this delay or that delay or say folding our hands, that ' the procedure code doesn’t provide for this or that, my hands are tied'

This approach implies that the Courts have no power to do justice for that man, over whose head the Damocles’ sword is hanging for nearly a decade or more. Justice cannot be postponed until the legislature finds its sweet-time to make necessary amendments to the procedure code or until such time that man becomes too old to stand trial. What a task is set before Judges! Clearly someone has a duty to do something about this unjust situation. If the Judiciary cannot, then who else can do something about it? In my humble view therefor, the Judiciary in this respect may adopt a triangular approach to expedite the trial or hearing of the case it deals with.

First, the Judiciary as an adjudicator – when dealing with such unduly long pending cases- should bear in mind that the paramount consideration in any adjudication is to serve not only justice, but more importantly, justice in good time.

Secondly, the Judiciary as a supervisor of overall proceedings of those cases before it, should monitor and control the timely input, performance, cooperation and co-ordination of each and every stakeholder involved in the process and ensure a swift progress of the trial or hearing defeating all and any delay-tactics applied by any in the process; and

Thirdly, Judiciary as a protector of the rights of the citizens has to ensure that those rights enshrined in the glassy pages of the Constitution, statutes and the international instruments including right to ' hearing within a reasonable time' are properly respected, suitably applied and effectively implemented by the authorities concerned and protect the rights of those individuals at every stage of the proceedings and at all costs.

Now let us move on to Backlog of Cases, the culmination of ' Judicial Delay' in the administration of justice. The term ' Backlog' refers to a situation where there is a chronic accumulation of cases in numbers that far exceed the disposal capacity of the courts.

As a result, the number of cases on the docket progressively increases and perpetually exceeds the disposal capacity of the court, which eventually contribute to the inordinate delay of justice.

When and where does delay begin?

It is difficult to discern and ascertain when and where delay begins in the justice delivery system or when the number of delayed cases becomes a backlog in a given jurisdiction and time-frame.

Unless a jurisdiction has set time-standards as practice direction or protocols for the progress and disposal of a case and set self-imposed accountability at every level within the judicial hierarchy, it is difficult to distinguish backlog from the normal progress of cases.

In my considered view, different standards should be set at each level for the completion of civil and criminal cases. For instance,

• Criminal cases: Let us say -Two Year
• Civil cases: Let us say -Three Years

If a case remains undetermined after the set time-limits, then it falls in the category of backlog The focus should be given to the oldest in the backlog. Simultaneously, reasoning for the delay and accountability ought to be inquired into, and ascertained for troubleshooting the system.

Visioning Exercise

It seems to me the major challenge the Indian Judiciary is now facing is the ' delayed justice' due to backlog of both civil and criminal cases at all levels trial and appellate.

In my humble view, using visioning exercise Judiciary after collecting all relevant data and doing necessary research, should formulate a Strategic Plan to eliminate, control and prevent inordinate ' Judicial Delays' in administration of justice and clear the backlog of cases, fine-tune and update the existing system so that it is time-efficient and effective, in order to meet the changing and challenging needs of time and public expectations by achieving a dynamic equilibrium between the inflow and outflow in terms of the volume of cases. .

Having read and observed the peculiar facts and circumstances surrounding the justice delivery system in India, to my mind, ' Backlog' has occurred at all levels in the Judiciary, due to many factors. Some of the factors seem to have played and still playing primary roles and others secondary but all act in combination perpetuating the delay resulting in huge backlog. Although I haven’t personally done any research based on observed facts and figures on the face of the situation, it seems to me, one can easily identify the factors so also broadly suggest solutions wherever possible, as follows:

1. Inadequate number of Courts as well as Judges, Munsifs, Magistrates or Judicial Officers at all levels in the Judiciary has primarily contributed to the accumulation of workload and backlog. These numbers can be increased and what one needs is ' Political Will' and ' Necessary Budgetary allocation of Funds' . The recent enactment of The Supreme Court (Number of Judges) Amendment Bill, 2019 that increased the number of Judges in the Supreme Court from 31 to 34, including the Chief Justice of India, is a welcome move in the right direction.
2. Outdated Procedural Rules which are complex, long winded and time consuming. Despite the procedure to secure our constitutional rights in the higher judiciary is efficient, effective and easily accessible, the procedure for protecting the ordinary civil rights of a common man at lower level, is not. Just as the pick and shovel is no longer suitable for the winning of coal, as Lord Denning once mentioned, so also the procedural law of the 19th and 20th Century is not suitable for the winning of freedom and timely justice to an ordinary citizen in the new age.
3. Under-staffed and under-resourced Judiciary and lack of proper infrastructure facilities such as Court Rooms, Offices, equipment’s, etc. This can also be remedied by the Government and necessary budgeting of the funds. Less budgetary allocation should be relooked at. The budget allocated to the judiciary seems to be between 0.08 and 0.09 per cent of the GDP.
4. Some redundant practices from bygone colonial eras ought to be reviewed and phased out. Old order changeth yielding place to new.
5. Inadequate case management and case-flow-management can be improved by giving necessary trainings and refresher course to judicial officers from time to time using experts in the field.
6. Delay in modernisation to embrace technology or failure in widely adopting ICT (Information and Communications Technology) systems in Court administration, case management, maintenance of records and documentation etc.
7. The problem of business-like attitude from some members of the Bar and small size of the legal professionals or lack of advocates in certain suburban or rural jurisdictions have to be looked into.
8. Lack of professional ethics and discipline by lawyers on over-commitments, double booking of cases at the same time in different courts, and their delay-tactics applied for repeated adjournments should be discouraged.
9. Civil and Political vibrancy, at time social unrest in the country has also given rise to increasing number of litigations. The leaders of political, social and religious groups should also be taught on peaceful ways of ventilating their grievances in public, not to resort to unconventional and sometimes violent ways to show it, disregarding the rights of their fellow citizens.
10. Growing litigation-culture among public and lawyers who go to Court as a first option should be discouraged.
11. To meet the need of increasing economic and financial activities due to foreign Direct Investments, international trade and commerce, special tribunals may be established to deal with disputes in this area that would considerably lessen the workload of law courts.

On the remedial side one may also suggest:

• For instance, new protocols may be agreed upon by Judges on delay reduction measures and time standards for disposal. Number of court-working days may be increased. The longer period of court vacations may be relooked at.
• The Court may follow setting priority to old cases for hearing and disposal purposes.
• Part-heard cases may be heard first before starting newer ones.
• Setting a ceiling on the number of part-heard before starting new hearings.
• Prehearings may be held to screen out, unnecessary trials saving the precious time of the Court. Plea bargain can be encouraged.

Having said that, in my humble view:

• Morale and enthusiasm among the Judges at all levels, has to be uplifted by providing adequate remuneration and favourable conditions of employment. Adequate administrative support may also be provided to the Judges and Magistrates.
• Separate Commercial Courts may be set up to handle commercial and small cause matters in all rural districts.
• Simultaneously, Alternative Dispute Resolution Mechanism may be resorted to and extended to all jurisdictions and put into optimum use. ADR Settlements would substantially reduce the backlog and diminish the delay in justice delivery system:
• Mediation and Conciliation should be encouraged and facilitated to reduce the workload and clear the backlog.

Many more such problems and possible solutions are still left untouched. I hope the law schools in India will be able to identify and provide solutions to those problems through research and innovative measures to diminish judicial delays and clear the backlog of cases in the state as well as national levels.

In conclusion, I would like to state that the future of the Judiciary of India much depends on the younger generation of the legal professionals. In spite of the myriad problems in the justice delivery system and implementation of the necessary reforms, I am very optimistic that the increasing number of intelligent, well-educated, well-trained and technologically well-versed students, who are coming out of many renowned law schools each year can do it. Many of them rise through the judicial system, which is independent and strong. They are well shaped to occupy the position of judges in the higher judiciary in future. Youths of great Bharat, dare to dream a Judiciary, which evolves and shines as a centre of judicial excellence and a role model in the region delivering justice for all, in a timely manner, inspiring public confidence, protecting, preserving and defending the Constitution and securing the rights of the individuals. ' Excellence is not an act but a habit' Aristotle.

Thank you very much for your kind indulgence. Jai Hind!