Way out of the impasse of 'law's delay'

Law’s delay is a legendary expression made well known by Hamlet. Efforts are being made in all ages to remedy this situation, without much success. Recently in India, this problem has been highlighted when the chief justice of India made reference to this judicial delay after a stark example of instant justice in a case where four convicts were shot down in an apparent encounter. I am writing not about any particular instance but about how it should be everybody's concern to find a way out of the impasse created by a very long pendency and shortage of judges. Economic analysts have all along been emphasising on the need for judicial speed, not just for justice but to ensure enforcement of contracts, without which a market system cannot flourish. Figures quoted in newspapers estimated a staggering number of vacancies at all stages. On average the vacancy ratio is about 25 per cent to 33 per cent. Figures are changing and not accurate but the magnitude of the problem can be understood from here.

Filling up the vacancies will certainly solve the problem but not more than the proportionate amount. What is needed is to reduce the intake and increase the disposal. That is where I am giving my suggestions here.

Regarding reducing the intake of cases, these are my suggestions.

Admitting too many cases is the main problem. Once a party has won in the lower court and/or in the high court, the appeal should not be admitted easily. Admitting writ petitions and giving interim injunctions rather easily in so many cases is one aspect which has to be considered with due attention. The principle of alternative remedy should get due consideration.

Frivolous appeals from the government side, particularly in fiscal cases, have become quite common. As much as 80 per cent to 90 per cent of fiscal cases are rejected at the high court stage and in the Supreme Court. Government lawyers recommend cases for filing appeal routinely as they get the fees. So the restraint has to be applied by the Central Board of Direct and Indirect Taxes and the office of the attorney general. He has to find some time to look into the lost cases. He has to direct the boards not to commit such a mistake again.

On the disposal side, the following suggestions are germane.

Adjournments are the foremost reason for the very slow disposal of cases. I have seen cases where adjournments are so many that over a period of nearly 25 years, the charge sheet is not issued. In one such case, I was cross-examined seven times. To the seventh judge, who was a woman, I said, taking her permission, "Your Ladyship, Heraclitus had said that one cannot step into the same river twice. In my case, I could not see the same judge twice. I appeared seven times in this case and you are the seventh judge." She was good enough to take my remark smilingly. Later, I was cross-examined twice after the charge sheet was filed. I can give many instances where the cases are adjourned for the asking and they are not decided for too long.

For deciding old cases (which are more than five years old), separate judges should be earmarked so that greater attention can be paid to such files which are usually very bulky and have got dozens of statements and documents in them.

Fast-track courts must be created for rape and child abuse cases as there is immense pendency and it is socially important to instil confidence among women and children. There should be courts on specific subjects, such as fiscal courts and administrative courts, so that the judges can remember the judgments by dealing with them every day. Lastly, let there be the abolition of laws which are basically litigation prone. The worst is the Law of Unjust Enrichment.

The conclusion is that the massive backlog in courts can be reduced not by just increasing the number of judges but at the same time also reducing the intake and increasing disposal of cases.

The writer is member, Central Board of Excise & Customs (retired)

Email: smukher2000@yahoo.com