A recent tweet
by LawBeat puts out an interesting perspective on the cases before the
judiciary. It quotes the Law Minister Ravi Shankar Prasad as stating there were
nearly 67000 cases pending before the Supreme Court. If one were to take the
cases pending before the High Courts, there would be 58 lakh pending cases. Given
there are 25 High Courts in the country, an average of more than two lakh cases
are pending before each High Court. If one were to dig deeper and look at the
lower courts- primarily the District Courts- the number touches around 3.3
crores. The number is expected to increase with passage of time rather than
decrease. This virtually implies there is very little time for each court to
sit and adjudicate on the cases and perhaps even lesser time to write judgment
on those cases. Assuming Supreme Court to sit around 200 days per year, they
have to handle 300+ cases per day of their sitting to dispose of the current
pending cases and on an assumption of accepting no fresh cases during this
period. Assuming each of these cases need an average of three judges to decide
and with thirty judges on the roster, each bench has to handle 10 cases per
day. Given the court sits for about 4 hours per day on an average, each case
would get about 20 odd minutes to be heard and adjudicated.
If this data is percolated, the
amount of time per case would perhaps be amounting to a few minutes or max may
be an hour. This would be itself indicative of the justice or the lack of the
same in respect to hearing the cases and consequent judgment on those cases. Furthermore,
each of those cases might go to higher courts in appeal which would eat further
time. The concept of speedy justice seems to be going for a toss. In this
context, it is worth recollecting the amount of time the higher courts both
High Court and Supreme Court spend on issues that are strictly not in their
domain but come under policy domain. They might be playing to the gallery and
might be wanting to see themselves as arbiters of good policy or whatever that
means, yet this eats into their core function of ensuring justice to those who
need it apart from interpretation of laws which is their mandate as per the
constitution. This naturally calls for a discussion on how to resolve these
issues and ensure the current backlog of cases is speedily resolved.
The solution lies in the will power
exercised by both political forces as also the judiciary. The judgments in the
various cases have made judiciary a power structure of their own. They seem to
have taken upon themselves a mandate to adjudicate anything and everything. This
has led to a situation wherein the judiciary often sits on matters making
policy rather than their original mandate. This leads to accumulation of backup
cases. The first solution that is essential is both High Court and the Supreme
Court must curb the notion of public interest litigation unless in extreme
circumstances. The rule of the judiciary must give way to the rule of
executive. There are many who want to rule through backdoor through the means
of the PILs and the courts have conveniently allowed themselves to become an
instrument for the same. The courts must resist this temptation and focus on
clearing pending cases. It is not about the number of judges but about the
exercise of powers under jurisdiction that matters. If the courts stick to
their mandate, a substantial number of cases might themselves a peaceful and quick
resolution.
At the ground level, the trials must
be expedited. There is no reason for keeping the trials in abeyance for years. Secondly,
everything need not go to the higher courts. The Supreme Court should not sit
in judgment for bail petition. The bail must be resolved at the trial court or
magistrate court themselves. The notion of risk transfer has to be eschewed. The
rules for bail can be transformed and made easier so that the lower courts in
the districts or perhaps the taluks can themselves take a decision without a
need to appeal to the higher courts. Bail should often be a right of the
accused who are deemed innocent till proved guilty except in rare circumstances
based on the facts of the case. This would ease up numerous bail petitions and
also free jails from the undertrials to a large extent. The trials must be made
swift. In this it would not be a bad idea to execute plea bargains. For all
those minor cases, the plea bargains could resolve cases in a swift pace.
For civil cases, there must exist a
potential for arbitration and alternative resolution mechanisms and must be
resolved through such means in quick time. The process of appeals must be
eschewed and sort to be resolved at a lower levels. There can be a scope for
setting up Court for Civil Appeals and Court for Criminal Appeals above the
High Courts at different places and these be the final fora for adjudication of
cases. The effects of Article 226 or 232 must not apply to these courts. This
would free up the High Courts and the Supreme Court from the appellate jurisdiction
and focus on original jurisdiction. Moreover, given these courts being located
in different places would ease the pressure on litigants to travel to Delhi for
their cases in the Supreme Court. With reference to the cases being sent for
appeal, the Supreme Court must be granted discretionary jurisdiction so it can
select only few cases for itself. The Supreme Court must restrict to the
original mandate and not focus on other issues. Similarly, the High Court would
be the appellate court for the lower courts but would need greater number of
judges to handle its load. The career path of both judges and prosecutors must
be linked to the swiftness and accuracy in the judgments. This would be
encouragement for them to respond to the incentives and thus dispose cases
fairly fast. These are just some steps that can be taken to reduce the pendency
of litigation at various levels.
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