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Pendency of Cases And Shortage of Judges in Courts And Tribunals

In this article pendency of cases, their problems and possible solutions are talked about. The pendency of cases is a great problem for our Indian Judiciary. Since Judiciary is the third pillar of our democracy its proper working and without any load is necessary. To counter this problem government introduced tribunals as a quasi-judicial body to lessen the burden on the Indian judiciary and lower the pendency but instead the workload on these tribunals increased and the problem of pendency increased more compared to the time when the tribunals were introduced.

In recent times, Our CJI Mr N.V Ramana and Justice R.F Nariman of the Supreme Court spoke on these problems that how they are slowing down the working of our judiciary. An increase of workload in any institution hampers its working and in this case, our judiciary is lagging because of this pendency people don't get justice on time.

Pendency of Cases in both Supreme Court and High Courts gave rise to the emerging need for specialised courts on specific matters for speedy justice and to take off some load from the Courts. Tribunals come into the light as the specialised court. The term Tribunal is derived from the word Tribunes, which means Magistrates of the Classical Roman Republic. Tribunal is an administrative body established to discharge quasi-judicial duties.

An Administrative Tribunal is neither a Court nor an executive body. It stands somewhere midway between a Court and an administrative body. The exigencies of the situation proclaiming the enforcement of new rights in the wake of escalating State activities and furtherance of the demands of justice have led to the establishment of Tribunals.

The Income Tax Appellate Tribunal was created in 1941 to reduce the pendency of income tax-related cases from the courts. In 1976, Article 323A and Article 323B were inserted empowering Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants. Article 323B specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting the law.

In 1985, The Administrative Tribunals Act was enacted and due to which various tribunals received 13,350 pending cases on transfer from the High Courts and subordinate Courts under section 29 of the Administrative Tribunal Act, 1985. The purpose for which the Act was enacted was seemed to be achieved, but this was not the case. (Problems faced by tribunals that made them ineffective)

In the starting, when cases were transferred to these tribunals to reduce the burden from High Court and Supreme Court, the tribunals worked good and reduced significant burden from the courts but after some years everything came back to where it was started from. The pendency of cases didn't get reduced instead as of now the first tribunal i.e The Income Tax Appellate Tribunal has 91,538 cases pending as of End of 2016.

Before talking about the reasons due to which the situation didn't improve rather worsen with passing time. I would like to tell you about the recent situation and interview of Chief Justice of India and farewell speech of Justice Rohinton F. Nariman who also pointed out the pending vacancy of judges all over India and their appointment must be merit-based and more direct appointments in Supreme Court. (One of the reasons for the increase in Pendency of Cases.)

CJI Ramana Says 4.5 Crore Cases Pending, Here's What Has Been Fuelling Backlog In Indian Courts by News 18, Dated 18th July 2021.

Delivering his address at India-Singapore Mediation Summit, Chief Justice of India NV Ramana cited the:
often-quoted statistic that pendency in Indian courts has reached 45 million cases.

A few months back in April, reports said that combined with Covid-19 induced lockdowns and restrictions, the pendency of cases rose by 19 per cent since March 2020. The CJI also told that the perception regarding pendency of cases in Indian courts as being reflective of the:
Inability of the judiciary to cope with the caseload is an overstatement and an uncharitable analysis.

Even former Supreme Court Judge Justice (retd.) Markandey Katju had said in an article in The Tribune in 2019 that it is estimated that if no fresh case is filed, it will take 360 years to clear the backlog of cases in all the courts. He was writing this at a time when the pendency was about 33 million cases.

Merit Must Predominate In Judges Appointments; Time For More Direct Appointees: Justice Nariman In Farewell Address
Live law, Dated 12th August 2021

Justice Rohinton Nariman, who retires as a Supreme Court judge today, said in his farewell speech that merit must be the predominant factor to be considered in judicial appointments. He said, I believe there is a legitimate expectation in the people of India and the litigating public to get a certain quality of justice from this final court. For that, it is very clear, merit must predominate, subject of course to other factors. But merit always comes first. He also pointed out that more direct appointments in Supreme Court should be there as it is followed in High Courts.

Justice Nariman was himself was the fifth advocate to be directly elevated to the bench.

Factors responsible for the pendency of cases and failure of tribunals
Huge pending appointments of judicial, non-judicial officers and judges in the judiciary:
The first and foremost reason affecting the proper working of the judiciary that leads to increase in pendency is Inordinate delay in filling up the vacancies of judicial officers and judges, around 6000 posts are lying empty in the subordinate courts. The Judges to Population Ratio in India is 20 Judges per million Population. Earlier, Law Commission had recommended 50 Judges per million. Not only this, over 400+ vacancies of High Court Judges are vacant and the apex court itself has 4 vacancies. In a court not only judges and advocates are essential for its working but also the non - judicial officers who work in the court.

These non - judicial officers have dedicated posts for them like record keeping, judgement typing, and other essential work which helps to improve court operations, optimise case movement and judicial time. There is a tendency of appointments in these posts also due to which many courts are not able to work properly hence a factor responsible for the increase in pendency of cases. Appointments on these posts should be done before the vacancy is about to be created.

Suppose that, it is known that at the end of the year 30 judges all over the High Courts of India are about to get retired, then the procedure to fill those 30 judges vacancy should get started and the day they get retired the newly appointed can join the next day so that the working is not affected.

Frequent Adjournments:- The laid down procedure of allowing a maximum of three adjournments per case is not followed in over 50 per cent of the matters being heard by courts. Rule 1 of Order 17 of the Civil Procedure Code (CPC) talks about an adjournment, it clearly says that, if sufficient cause is shown, at ant stage of the suit grant time to the parties or any of them, and may from time to time adjourn the hearing of the suit.

Even by the rules laid down, still, advocates seek against the rule request in the court and ask for an adjournment of the case. The reason behind this are many but one is the main reason behind most of the adjournments and this reason has two parts also. The reason behind the adjournment of cases is delaying the case, now the first part of this reason that why advocates want to delay the case proceeding is to benefit their client. In most cases, one of the parties doesn't want the case to be decided because of which lawyers use adjournment of the case as a tool to delay the procedure.

The second part of it is that many lawyers either don't have many cases with them or they have so many cases that they cannot handle its burden single-handedly. The Engagement of lawyers in another court is no ground for adjournment and lawyers mainly use this excuse to adjourn the case.

Early retirement age of Judges - In comparison to other countries, India's retirement age of Judges is the lowest. Now here comes the reason that why early retirement age is a contributing factor in the pendency of cases. Many times it has happened that when the judges are appointed they have only a few years of work left for them, even there have been cases where judges retired after a few months of the appointment because of that judges are not able to properly settle in the court and before they can understand the working of the court they retire. It has been even seen that senior judges when they are about to get retired they work really well and give excellent and landmark judgements too.

The Special Leave Petition (SLP) which the Constituent Assembly hoped would be used sparingly, but which now dwarfs the work of the Supreme Court - Under Article 136 of the Indian Constitution gives an extraordinary jurisdiction to the Supreme Court of India and a power to High Courts and tribunals i.e to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter, passed or made by any court or tribunal in the territory of India. This power was granted for the people in case there has grave injustice been done to them, but instead, it became a contributing factor towards an increase in pendency.

Lower working days in a year - Supreme Court's works on an average of 188 days a year, while apex court rules specify a minimum of 225 days of work but due to frequent strikes done by Bar Association, the working of court gets affected.

Underfunding of Courts by Government:
One of the reasons which are mentioned above is the Inadequate appointments of judicial and non - judicial officers. A hidden reason behind this underfunding of courts. Now why it is a hidden reason its answer is due to low funding, courts do not have enough infrastructure to accommodate those officers to work and also due to low funds paying them becomes a liability and many times it has happened that they are underpaid.

For the proper working of any institute, funds are needed so that the institute is well maintained and can work at its full potential. Since the court are not funded well, so the district courts of the country where the maximum no of cases are pending cannot work properly, hence the pendency cannot be reduced.

For instance, the Allahabad High Court has a total strength of 160 Judges due to its extensive jurisdiction, but currently, only 92 Judges are there and also there is a lack of infrastructure to accommodate all the 160 Judges to sit in the court at a time. This lack of infrastructure is only because of lack of funding due to which it is not possible at this time to appoint the remaining 68 judges and to accommodate infrastructure for their proper working and dispense their duty.

These are the main factors responsible for the pendency of cases in our judiciary. There are many small factors too that affect the judicial pendency but these are the main factors that are responsible for the maximum number of pending cases in India

What is the Impact of Pendency of cases on the Judicial System?
Denial of timely justice amounts to the denial of justice - Timely disposal of cases is essential to maintain rule of law and provide access to justice. Speedy trial is a part of the right to life and liberty guaranteed under Article 21 of the Constitution. Due to the increase in pendency of cases a simple civil case that can be resolved within a few months takes years to get resolved. Not only civil but criminal cases are there too which are pending for more than 15 years, cases in which the accused is in custody but still due to lethargic police investigation and pendency of cases it takes years to dispense justice causing grave injury to the fundamental rights of the citizens of India.

Affects human rights - Overcrowding of the prisons, already infrastructure deficient, in some cases beyond 150 % of the capacity, results in violation of human rights. In Criminal cases, from the day the accused is captured till the judgement of the case comes, he is either kept in jail or released on bail, the other scenario is not so frequent as the first one, and due to the pendency of cases in courts, normal criminal cases take more time to get decided due to which the accused whether guilty or not remains in jail and because of that prisons get overcrowded. Due to which requirements for a prisoner cannot be met leading to a human rights violation.

Corruptions increases - Due to the increase in pendency of cases, people many times don't fight for their rights or the wrongs caused to them. The reason behind this is simply that people know that if they file a suit in court, it will take years to resolve to lead to wastage of time and money. Some instead of fighting the wrong, try to resolve the matter outside the court in an illegal way i.e by bribing the police officer not to file an FIR against them.

Now after telling you all about the pendency of cases, what has been done to resolve, factors responsible for it and the impact done by the pendency of cases. Now I will tell you about the possible solutions which if implemented properly can tackle the problem of pendency efficiently.

Possible Solutions to tackle the problem of pendency in courts
The first and foremost solution of the problem solves one of the main factors responsible for the pendency of cases I.e Frequent Adjournments of cases. The main reasons for adjournment which were told above were either too much work with the advocate or lack of work with the advocate. So the solution to it is to form an Alternate Dispute Redressal Forum inside the court. In Order 26 Rule 9 of the Civil Procedure Code (CPC), it gives the Court power to make a Commission to make local investigations to be requisite or proper for elucidating any matter in dispute. Section 89 of CPC which is the settlement of disputes outside the court, the settlement of dispute outside the court can be referred to as arbitration or conciliation or Judicial settlement including Lok Adalat or mediation.

By Clubbing Order 26 Rule 9 and Section 89 of CPC court can give an option of Alternate Dispute Redressal Forum (ADR) of Civil cases pending for more than 3 years. In this ADR committee, lawyers who are willing to work can be selected and a panel of arbitrators should be made. The criteria to choose lawyers for this panel must be that a lawyer with at least 10 years of standing in the court can give his name for this committee. Fees can be decided beforehand and it will be compulsory for the lawyers to dispose of the case and write the judgement to the case. This judgement will come to the court for finalisation and if the parties have any problem with any part of the judgement can oppose it when the finalisation of judgement is being done and the court after listening to the objection rectify or pass the original order. Also, the Fees to the lawyers who are in the arbitration panel will only be paid after the judgement has been written by them to ensure no backlog of cases exists there.

Since Many lawyers who don't have work will come forward for this committee and also lawyers will get a good exposure of how a judge works and if in future any of the lawyers get appointed as a judge, then the lawyer will eventually become a good working judge and also more lawyers who don't get the opportunity to uplift their legal career will get a platform too.

A similar type of commission can be constituted for criminal cases as well. In criminal cases, small works like examination and cross-examination of witnesses cause unnecessary workload on the court. If a commission is constituted, then this workload will get divided and courts will become swifter and efficient. But for all this to be done a proper infrastructure for working of the lawyers is needed. A major workload is in district courts where lawyers work outside the court beneath a shed or something like that with a chair and table. This working environment is not sufficient for this work. Not only infrastructure but proper security has to be ensured in court premises so that these commissions can work without any fear and biases caused due to security threats to them.

Now the second possible solution will solve the factor responsible which is the Early retirement age of Judges and might be able to solve the pendency of appointment of judges. In India, the retirement age of Judges in District courts is 60 years, in High Courts, it's 62 years and in Supreme Court, it's 65 years. In comparison with the courts in other countries, India has the lowest retirement age, recently in 2019, it was in the news that the retirement age could be changed to 65 years in High Court and Supreme Court's retirement age will be untouched but nothing happened. To overcome this problem of retirement age, judges should undergo a screening committee when they reach the age of 60 years in case of District Judge, 62 years in case of High Court Judge and 65 Years in case of Supreme Court Judges

In this screening committee, the Health condition of the Judge, Any misconduct or complaint against the Judge and the Number of Cases Disposed of by the Judge are the criteria that need to be screened. When all three criteria are in favour of the Judge, then his/her tenure should be increased to 65 years of age. At 65 years of age, both the Supreme Court and High Court Judge (whose tenure got increased) will go through the screening committee and if they are fit then their tenure should be increased to the age of 70 Years and after that judge should be retired and these retired judges can be selected in the selection committee for the same.

As Judges will be screened on the number of cases disposed of so they will be disposing of more cases in their tenure to get their tenure extended, it will directly target the pendency of cases and since judges will be working on their full capacity and also their tenure will be extended then the problem of pending appointment of judges will not be felt that much but still, the appointment of other judicial and non-judicial officers are necessary.

If these two solutions are imposed and other factors are dealt then the problem of pendency will be reduced drastically but still, it will exist. The government tried many solutions like fast track courts and frequent Lok Adalat but because of improper implementations, it didn't turn out as a success. These steps can reduce the pendency of cases but their improper implementations made these steps non-working.

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