It is a sobering thought that the judiciary is entering the new year with the chronic burden of 30 million pending cases in courts, not counting disputes in tribunals. The high courts have some 4,000,000 cases, and subordinate courts around 25 million.
In the Supreme Court, the figures released in November show 57,225 cases in arrears. Of them, 56,383 were carried over from the past. New registrations were 7,360 and the disposal of the month, which could be taken as an average, was 5,716.
Chief Justice S H Kapadia has given a new interpretation of the data referring to the Supreme Court. He said recently that “for years, I have been listening to speaker after speaker slamming the judiciary for mounting arrears. They must know that filing of a case today becomes a pending case tomorrow. But, is that an arrear? Statistics reveal that 60 per cent of the cases pending in trial courts were less than one year old. So, if we take a realistic look at the arrears and exclude those pending for just one year, then the arrears are only one crore cases.” According to him, 74 per cent of the cases were less than five years old. He claimed that the Supreme Court had cleared 79,900 cases last year.
That is the view from the top. But an ordinary reasonable person (famously defined by a British judge in 1933 as “the straphanger in the Clapham omnibus”; and could be adapted here as one in the Delhi Metro) might still have some doubts, while he ploughs his way through the crowds in the corridors of the Supreme Court building.
He would obviously be astonished by the time taken by counsel in presenting their case. The celebrated Kesavananda Bharti case in the 1970s took six months of jaw-breaking arguments. The first “Judges case” in 1980 took four months. Two years ago, the Reliance case took three months of the court's time. Last fall, the Vodafone tax case neared that mark. (The court sits only 190 days in a leap year like this).
Observing this, former judge Krishna Iyer commented that “the art of fast disposal of cases would seem to have become alien to the judges, who do not know the strategy of having a brief hearing and delivering the judgment in a few days. A leisurely, jocose and even bellicose style, a high-and-mighty bearing, and slow and endless arguments are hampering the competent performance of the judges. American judges allow half an hour and no more. Originality, imagination and talent have become scarce.”
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Another scourge of the proceedings is frequent adjournments for the flimsiest of reasons. The Supreme Court itself lamented this malady six months ago in the case Shiv Cotex vs Tirgun Auto. The judges said: “It is sad, but true, that the litigants seek – and the courts grant – adjournments at the drop of the hat. Adjournments have grown like cancer corroding the entire body of the justice delivery system.”
Even after the much-awaited hearing is closed, litigants have to wait for an indefinite period for the decision. A few months ago, the Central Information Commissioner asked the Supreme Court to disclose data about the period for which judgments are kept reserved. The response of the apex court was to move the Delhi High Court challenging the order. The registry said “there does not exist any separate compilation of list of cases where arguments have been heard and orders have been reserved”.
The Supreme Court has asked the high courts to record in their judgments the date they were reserved. Many high courts follow this rule. The time gap hardly exceeds a few months. But the Supreme Court itself does not follow this practice. It has criticised courts below for not delivering judgments for months or years together, or doing it only when one judge is superannuating (Anil Rai vs State of Bihar). “A magistrate who cannot find time to write judgment within reasonable time ought not do any judicial work at all,” the court said. According to the Anil Rai criteria of setting deadlines, if the judgment is not delivered within six months, the case should be heard anew by a different Bench.
However, the Supreme Court does not attempt to heal itself. For instance, the judgment in the 2G licence cancellation case, which rocked the Centre the whole of last year, is still awaited though the hearing closed on March 17 last year.
The fictional “Metro straphanger” will also meet lawyers who fret about judges who write only one or two judgments a year, that, too, of uneven quality. They genuinely worry whether this genus will leave the post without writing any judgment at all. Some have done it before. These are areas in which judicial reforms could start from within, not waiting for the outcome of the bouts in the well of Parliament.