The Indian Judiciary is the evaluation sign for this big country. The Indian Judicial structure is viewed as the strongest Judicial System in the world. The Judiciary is often praised for working towards ensuring the protection of its citizen's rights and privileges and also for looking after the weaker sections of the society and delivering justice to everyone. The pendency of almost 4 crore cases depicts the true situation of the Indian Judicial System, from the time India became independent. In the current situation, the judiciary has failed in providing justice because of the numerous pending cases. Citizens go to courts with high expectations and as a last option to solve their problems. They treat courts like heavenly beings, and if they do not get a favorable outcome from their petitions, they suffer great loss.
The term "Judiciary" is the facade of justice and equality that is engraved in our minds, but because of the delay in delivery of justice, causing pendency in courts is the strongest fact that leaves an undying opinion in our mind. The most commonly spoken topic about judicial changes is the pendency of cases in courts. The phrase "Justice Delayed is Justice Denied", is well suited for the current system of India's judiciary.
The Right to Fair and Speedy Trial is considered as a Fundamental Right under Article 21 of India's Constitution, however, deferral in the deliverance of justice infringes this right. The unjustifiable delay causes the breakdown of justice and expansion of the cost of litigation. The quick trial and discarding of cases do not imply a rash deliverance of justice. In some cases, the reimbursement given due to such delays is completely advantageous.
The word "Pendency" refers to the uncertain, indeterminate delay of cases by courts of law. The number of pending cases is rising day by day which depicts the incompetence of the judicial system in delivering justice at the right time. When we compare the judicial system of India with that of other judicial systems in the world, we come to know that India's judicial system is more methodical and honorable. However, the pendency of cases in India is way more as compared to the other judiciaries in the world.
Currently, there are 25 High Courts in India, of which about 46 lakh cases are pending. This means that there are approximately 1.68 lakh cases in every court. Around 20 lakh cases are pending for the last 5 years. In the Indian Constitution, there is a specific number of High Court Judges. This number is 1079. However, there is a shortage of judges because there are only 679 Judges as of now. This creates a shortage of 400 Judges. Many tribunals are established to lessen the burden on the judiciary and for the quick completion of cases. The 272nd report of the Law Commission showed that the goal of setting up tribunals has not been achieved as there is a humongous pendency of cases in many tribunals. In the lower courts, about 4 crore cases, out of which roughly 2 crore cases are criminal and around 88 lakhs of the cases are civil cases, are pending. The most prominent states that have the highest number of pending cases are Uttar Pradesh with 61.58 lakh cases, Maharashtra with 33.22 lakh cases, West Bengal with 17.59 lakh cases, Bihar with 16.58 lakh cases, and Gujarat with 16.45 lakh cases.
Alternative dispute resolution strategies have been increasingly popular over the years as a result of their significant advantages compared to traditional lawsuits. The Ministry of Law and Justice revealed that India is deficient of approximately 6,000 judges in a report presented to the Parliament in September 2014.
It's noteworthy that the cases outstanding in all Indian courts rose by 8.6% from 2006 and 2018, delaying the time required for a magistrate to settle a conflict. These elements make it possible to avoid a lawsuit in India, specifically in commercial disputes that can be handled by other procedures like mediation, which is controlled by the Arbitration and Conciliation Act of 1996.
CAUSES OF PENDENCY IN COURTS
There are numerous causes for the delay in the disposal of cases. A few of the prominent causes and suggestions as well as some recommendations are mentioned below:
(i) Lesser Number of Judges and Lesser Appointments
When the topic of litigation pendency arises, the very first thing that comes to our mind is if there are sufficient judges in the court to handle the pending cases? In the 25 High Courts of India, there is a limitation of 1079 judges, from which only 680 are working. Every year, there is a vacancy of 399 Judges. The High Court of Allahabad has the highest strength consisting of 107 Judges. The Sikkim High Court of Sikkim has the least number of Judges which is only 3 Judges.
Currently, there are 19 judges per 10 lakh people in our country. As per the National Judicial Data Grid, the number of Judges working in the lower courts is 16,726 and the allowed number is 22,474 Judges. This means that in the lower courts there is a vacancy of 5748 Judges. Mr. Ravi Shankar Prasad, the Law Minister of India, said that one of the main reasons for the pendency in cases is the unreasonable delay in appointing Judges and Judicial Officers.
The Law Commission of India, in its 245th Report, said that the issue of pendency of cases has increased to a great extent. It stated that courts need a huge resource to handle this problem and dispose of the pending cases. It is not necessary to increase the number of Judges in the courts for the deliverance of justice.
To get rid of the problem of litigation pendency, the government must fill all the empty posts of the Judges in the various High Courts and the lower courts. Roughly 6000 Judges have to be appointed in the High Courts and the lower courts. As for the Supreme Court, there is a post for 31 Judges and there all are filled. Judges become more experienced when they spend time in judicial work. This means that more the experience the judge has, the more the number of pending cases he/she can finish in a short time. Thus, the retirement age of a Judge must be increased to 70 years, so that older Judges can work and deliver justice more quickly than younger Judges.
(ii) Operation of Law
The time consumed in the proceedings of a case is so long, that some people end up waiting for years in the courts to get justice. There are many hearings of a case, many postponements of a case due to which victims become infuriated fighting for justice. Due to the long period in delivering justice, the accused take advantage of it. The government must adopt ways to lessen the time taken in the disposition of cases. In a few cases, the Supreme Court of India gives directions to the lower courts to finish a trial in a short time limit. In such cases, the courts only dispose of such cases quickly and not the others. There are numerous cases which are pending for more than 60 years. The Supreme Court must provide directions to dispose of such cases swiftly.
(iii) Absence of Judges
Judges are human beings too, they too have families, friends, and relations with the society they live in. They require a vacation to spend time with their family and friends. The Judiciary provides them with vacations to spend time in society, however, some judges take more time to vacation and enjoy themselves.
When judges go on a vacation without a preceding notice, the deliverance of justice is delayed in cases that are to be heard on that specific day. For example, if there is a hearing of an under-trial person for the acquisition of bail and the Judge is not present on that day without informing the seniors, then justice is not given to the under-trial person. There are a few Judges in the judiciary, who only work for the money and benefits they get and who go on vacations without any reasonable cause. In such a situation, the cases that are supposed to be heard on that day have to be postponed. This causes workload on the Judiciary and the number of pending cases to rise every day.
Mr. Ranjan Gogoi, the former Chief justice of India, studied this issue and came up with a solution known as the "no leave formula" for Judges during workdays of the court due to the worrisome number of cases pending in India. The Judges who did not follow this formula would either have his/her name withdrawn from the judge's list or the judicial work be withdrawn from that errant judge of the court.
A Judge is not allowed to take a leave on working days except in case of an emergency. If a Judge is planning to take leave on a working day, he/she must notify their senior officer before taking a leave. They must also coordinate with the Chief Justice of the respective High Court in case of a High Court Judge and a senior, in case of a lower court, so that the case that has to be heard that day can be heard by another Judge.
(iv) High Number of Appeals in a Case
A judgment given by a judge is such that one party wins and another party loses. The party which loses the case can appeal to a higher court if they are not satisfied with the judgment given. Provisions for appeals are created to please parties or to ensure justice. However, litigants have made it a way to earn more money from the aggrieved parties. They appeal in each case heard by the lower courts. This is why the number of pending cases is increasing in the High Courts.
The total number of appeals depends on the judgments given by the lower courts and the higher courts. To appeal in a higher court, a notice of appeal must be presented to the lower court that has given the judgment, informing about the case that is being appealed. The appellate court will not take the case if the notice of appeal is not presented on time to the subordinate court. Generally, 30 days are provided to inform the subordinate court that has delivered a judgment for the notice of appeal in civil cases and 10 days are provided in criminal cases. After the notice of appeal is presented, the advocate can show his/her draft or petition of the case in the higher court.
If a judgment is given by the district court, then an appeal can be made in the sessions court under Chapter 29 of the Code of Criminal Procedure, 1973, in case of a criminal case, and under Section 96 of the Code of Civil Procedure. The Supreme Court of India is the highest court of appeal. No appeal exists beyond it.
In the High Courts, 46 lakh cases are pending, out of which 24 lakh cases are civil and 13 lakh cases are criminal. The rest of the cases are that of writ petitions. Lawyers make it a source of money. If they win the case, it's fine, but if they do not, they appeal in the higher courts only to get money from their clients. Due to such appeals, the number of pending cases is increasing day by day.
There is an urgent need for the courts to determine the reasonable grounds for which appeals are allowed. Almost 7 out of 10 cases based on appeals are dismissed due to the unreasonable grounds on which they are appealed. The court’s registrar must examine the grounds of the appeal and then allow it.
(v) Lack of Infrastructure
If we dig deep and get to the root of the problem of litigation pendency, the reason that leads to more pendency of cases by slowing down the process of the trial is the lack of infrastructure in the courts. Mr. Dipak Mishra, a former Chief Justice of India, in an interview, said that the main reason for the pendency of cases is the lack of infrastructure available for judges, litigants, and the court staff. Lower courts do not have the most basic facilities like clean washroom facilities, hygienic canteens, organized parking lots, libraries for advocates, waiting areas for advocates as well as clean drinking water. If we take a look at the trial rooms in the district or lower courts, we observe that they are extremely small and only 5-6 people can be accommodated.
How can the judiciary do its work in such bad conditions? In the 21st century, where most of the work is done electronically, courts still use papers. Courts in India are ready to keep up with the developing society but, the government is not ready to give facilities like computers, hardware, software, internet facilities, etc. By taking a look at the court buildings, we think that these buildings are a century old. Thus, there is an urgent need for the government to establish new court buildings with good facilities.
The government needs to understand that efficient infrastructure in the courts is very crucial for smooth working and its absence can become a hurdle by not allowing the judges and the court staff from doing their work properly. The government must finance the development of the judiciary. Availability of land for the construction of the Court Building must be sone. The total computerization of court work must also be done to improve the working of the court. The courts must provide the litigants with online connectivity so that they can track the developments in their case, read about the judgments, and come to know of the next date set by the court for their case. Many courts have set up means for online hearings of cases because many people are unable to travel to places for the hearings. This has further reduced the burden of cases on the courts.
The Law Commission of India in its 245th report talks about the establishment of additional courts for the elimination of delays in cases and quick clearance of legal issues. The Supreme Court in Imtiaz Ahmad v. the State of U.P asked the Law Commission of India to establish additional lower courts for the elimination of delay in cases and fast disposal of cases and also asked advocates to reduce their fees.
VARIOUS APPROACHES TO RESOLVING CONFLICTS
As we all understand, there are some options for involved individuals to settle their differences. Perhaps the most usual way is to reconcile the differences via courts. When a conflict occurs among two persons who are part of the same society, it makes perfect sense for the sides to tackle the issues through the courts constituted by that nation's laws. Our existing legal system has become obsolete, necessitating the creation of a new framework to support our justice system as a substitute or option for solving inter-group conflicts.
Our legal system seems to have some flaws, including an overworked court, which takes time and needs an expensive detailed procedure, a poor judge-to-population proportion, and empty openings, that lead to protracted administrative and case-pendency times.
IS THERE AN ALTERNATIVE DISPUTE RESOLUTION MECHANISM IN INDIA’S LEGAL SYSTEM?
Each civilized culture's cornerstone and purpose is equality. For centuries, the pursuit of justice was a goal that humankind strived to. One of the key tasks of the Indian courts in resolving disputes, which is critical for a cohesive society. The Indian government is organized into numerous organs, with the judiciary bearing primary responsibility for the administration of justice.
In India, the judicial system is the heart of the legal system. One of the most important aspects of humanity's comfortable existence is the resolution of disputes. The Indian legal system accepts arbitration in the ADR approach as a means of resolving disputes. Initially, the Indian Arbitration Act of 1940 governed arbitration.
The courts were mostly interested in the arbitral courts' supervision, and they were particularly interested in seeing if the arbitrator had overstepped his power in deciding the subject presented to him for arbitration.
In India, the court system is not only expensive for most people individuals, but it also requires decades and decades to provide justice. The establishment of Alternative Dispute Resolution (ADR) processes such as Lok Adalats, adjudication, negotiation, and arbitration was proposed and pursued with praiseworthy results subsequently to solve the much-criticized delay in the delivery of justice.
The judicial system has played a key role in growing and changing India into an arbitration-friendly state, and the day is not far off where India will be a real competitor for having international arbitration proceedings. The Supreme Court of India and numerous High Courts have adopted a hands-off stance when a party disputes an arbitral judgment.
Indian courts have frequently endorsed an arbitration-friendly approach in recent times. Several cases are reported in which courts have upheld arbitration clauses notwithstanding minor defects, respecting the litigants' determination to settle their disputes through arbitration. Despite taking a pro-arbitration attitude, the Supreme Court upheld an arbitration clause notwithstanding a mistake, reasoning that because the litigants' intent to adjudicate was clear, the Court can render the arbitration clause legitimate even if it has flaws.
When parties have tried to get around the Arbitration Act's provisions, the courts have consistently declined to intervene with the Act's awards. Courts have also been cautious in granting anti-arbitration injunctions. If a claimant has access under the Arbitration Act, the High Court has ruled that it cannot seek an anti-arbitration order from the court by disregarding the Act's terms. One of the arbitrators was appointed in collaboration with another party and without following the agreed-upon procedure, forcing the party to request an order from the Court barring the arbitral tribunal from continuing with the adjudication.
THE RISE IN ALTERNATE DISPUTE RESOLUTION
The techniques for resolving disputes beyond the courtroom were beginning at an early age. The ancient Aryans believed that conflicts could be settled via intelligence, logic, and moderation. This was the foundation for a mediation, and it is still in practice today. Communal conciliation was started in the United States in the 1960s to resolve ethnic and inclusion difficulties. Eventually, it was applied to private things involving family and neighbors. It was then found that if conciliation is removed from the judicial framework, a high percentage of settlements can be achieved.
Following the discovery of mediation's cost-effective and time-saving procedures in the 1980s, private organizations began settling their problems via arbitration. During the pre-British period in India, Mahajans, who were unbiased and respected businessmen, mediated conflicts amongst traders. The Industrial Disputes Act of 1947 established conciliation as a legal avenue in India. Arbitration became legal in 1879. It was also included in Section 89 of the Civil Code Procedure. Subsequently, the Legal Services Authorities Act of 1987 was passed, establishing a National Legal Service Authority tasked with encouraging resolution via arbitration, conciliation, mediation, and other means. The Arbitration and Conciliation Act was passed in 1996. The rise of ADR is primarily due to the number of outstanding court cases.
Because the courts must engage with a large number of cases, several outstanding cases are awaiting them. The review of the cases is postponed as a result of this pending status, and justice is not given promptly. ADR is now considered legal and, in certain cases, has a binding force. The parties corresponded and visited practically every session in the beginning, but now they are divided after a special sitting.
Mediation efficiency scores increased as a result of this strategy. Furthermore, in the past, the arbitrator was expected to have power over the disputing parties; however, today's arbitrator is impartial and has no similar relationship with the parties. Mediation instruction has also been implemented in the country, with numerous seminars held across the nation.
As they're both dependent on each other, ADR and the judiciary should collaborate; the courts should encourage litigants to settle their differences productively through ADR proceedings. The role of the courts in the ADR process should be restricted, and they should only intervene when necessary; the ADR method in commercial conflicts should be granted greater latitude. The arbitrator, who is aiming to be an impartial judge, should be strict and responsible for any responsibility they might face. Arbitrators must be trained, and the judiciary must arrange such advocacy courses to teach and educate them how to behave themselves properly in the ADR process.
It is recommended that the judiciary begin arbitration campaigning under the Arbitration Act in a nation like India, where the ADR system is quickly developing with more cases being submitted, enabling it to settle more lawsuits and dispute issues in India.
Even though the judicial process has tried to remove hurdles during and after the arbitration process by usually desisting from interfering with arbitral tribunal judgments or passing other arbitration-friendly decisions, this will not be enough to incentivize foreign governments to use India as an arbitration facility.
ADR is a non-judicial substitute to judicial proceedings that reduces the strain on the courts while also providing a speedy and cost-effective resolution for the litigants. Nevertheless, it lacks legitimacy, and some ways are not binding on both parties, necessitating judicial monitoring, supervision, and counseling. ADR must be used in conjunction with the court system. Judges must recognize mediators as a component of the system, and judges must be required to send issues to mediation, making mediation more efficient. This would assist courts in reducing their workload, and using mediation as a technique will elevate the court to a sovereign entity for justice delivery.
Collaboration with the court and mediations will speed up the delivery of justice, and mediators' choices or proposals would be more productive.