Obstruction, your honour

44-coverOpening Imaging: Binesh Sreedharan

Out-of-the-box initiatives like doing away with cumbersome procedures and introducing required changes in law could be the way forward to clear the backlog of millions of cases in our courts

Union railway minister Lalit Narayan Mishra was assassinated on January 2, 1975, in a bomb attack at Bihar's Samastipur railway station where he was addressing a rally. Conspiracy theories flew thick and fast, pointing fingers at everyone from the Ananda Margis to the CIA. Forty years later and after 22 judges hearing the case, it crossed the first stage of judicial process on December 8, 2014, when a trial court in Delhi held four Ananda Margis guilty. One of them had died during the trial.

Mishra's kin are no longer interested in the case. "It took 40 years for the trial court to pronounce its judgment," said Jagannath Mishra, Lalit Narayan's brother and former chief minister of Bihar. "Now the matter has gone to the High Court and it has put a stay on the lower court's judgment.” There could be an appeal to the Supreme Court. “At this rate, the case will go on for a hundred years," he said.

India's court system is under severe strain. The average citizen, who has been cynical towards the institutions of Parliament and executive, still has faith in the rectitude of the judicial process and the fairness of the judges, but he is increasingly losing faith in the efficiency of the courts. Justice is not denied in India, but is delayed and thus derailed.

Ask Amar Kaur. The 98-year-old half-paralysed lady still comes to Delhi's Tis Hazari courts in a wheelchair. Once she came on a stretcher. In the court, she sits silently—she can't speak—running her fingers through her prayer beads, witnessing the trial of former Punjab director general of police S.S. Saini and three other police officers, who she accuses of having kidnapped and murdered her son Vinod Kumar in 1994. It was on her plea that the Punjab and Haryana High Court directed the CBI to register a case on April 18, 1994. In 2004, the Supreme Court ordered the transfer of the case from Ambala to Delhi, and Kaur sold her house and jewellery in Ludhiana to move to Delhi and track the case. "There are 36 witnesses; only three have been examined so far," said her surviving son Ashish Kumar, who has lost hope that his mother would live to see his brother's alleged murderers behind bars. And, even if she lives to see a conviction, the accused would appeal to higher courts.

Kaur's is just one of the 2.7 crore cases pending in India's lower courts. Another 40 lakh cases are waiting for disposal in the High Courts, and 59,000 in the Supreme Court.


Civil cases, especially those involving the government or its institutions, fare the worst. The Delhi Development Authority, for instance, had filed a case way back in 1961, claiming ownership of a piece of land in east Delhi. The residents, who have been living there for generations, contested the claim. Finally, a district court dismissed the DDA's petition last year.

Critics of public interest litigation allege that it is a shortcut through the long-winding judicial corridor. But Sureshwar D. Sinha will not agree. He filed a public interest petition in the Supreme Court on July 15, 1992, seeking directions to curb the dumping of industrial waste and sewage into the Yamuna. Today, a quarter century later, the case has earned the dubious distinction of being the longest pending PIL in the apex court. Sinha, who filed the case with tremendous zeal soon after he retired from the navy, is now 80 and has lost hope. "There has been little movement in the case, because of the negative attitude of the government," said Sinha.

The judges are clearly overburdened. There are only 12 judges per million people. Former chief justice R.M. Lodha said India's judges were handling five to ten times more cases than they could. He recalled a meeting with the chief justice of the supreme court in the UK. "He said his court handled 100-150 cases in a year. I told him that my court, on Mondays and Fridays, handled a thousand cases, and the 12-13 benches were assigned 70-80 matters each," said Lodha.

51AmarKaur1 Unyielding spirit: Amar Kaur, 98, has been fighting for justice for 22 years | Sanjay Ahlawat

But there are just not enough judges. The stalemate over the National Judicial Appointments Commission worsened the situation. And the working conditions in several courts are pathetic. Court buildings, especially in the hinterlands, are not in a good condition. "The conditions are poor and yet the judges keep working, even if it means holding court in the veranda of a ramshackle building or under a tree," Chief Justice of India T.S. Thakur told THE WEEK.

Judges and lawyers say the minimum that the government can do is sanction more courts and judges. But state governments have been budgeting too little for the judiciary. Procedural delays are also to be blamed. "Our long drawn procedural laws allow the case to get delayed and time to be taken," said Supreme Court advocate Gopal Sankaranarayanan. There are various kinds of excuses that lawyers make to prolong cases, and the overburdened judiciary readily agrees to delay matters, he said. Civil cases are halted on a regular basis. It happens commonly in matters pertaining to property issues and inheritance and succession. “Civil matters just keep lying in the trial and district courts. At times, there are benefits to be accrued from the pendency, and the lawyer delays matters as per the wish of the client,” said Nikhil Nair, legal expert attached with a Supreme Court committee on road safety.

A property dispute filed in the Bombay High Court in 1969 is the longest pending case in the court. The case is related to properties in south Mumbai and the suburbs, which were owned by textile baron Mathuradas Gokuldas in the 1920s. The properties were vested with the Government of India and the Provident Investment Company of Madhya Pradesh. The family approached the High Court, seeking redemption of the properties. However, the Union government sought a CBI inquiry as crucial documents pertaining to the case were missing, and this, the family alleges, has delayed matters.

Lawyer Kamlesh Mishra, who is associated with Human Rights Law Network, spoke about how going to court and getting a stay on demolition of slums was a way of ensuring that the residents got time to relocate. "These stay orders are helpful as the cases keep pending for some time," he said. He cited the example of the stay order against the demolition of a slum in Shastri Park in east Delhi. It came in early 2014 and the case is still pending. The DDA, which wants the land to be vacated, has not even filed a reply.

Among the reasons for cases getting adjourned is the respondents not turning up. They simply say that they did not receive the summons. Lawyers seek adjournment citing excuses such as he or she is unwell and send their juniors to the court only to seek a later date. Interim applications are filed on a regular basis to delay matters on the pretext of filing additional documents. This is a trick used by lawyers to put the brakes on a case every time it gains momentum.

Parties also go in for appeal in a higher court even as the case is being heard in the lower court. At times, the defendants approach a higher court with a point in law to seek stay on a case even before the hearing has begun. A lawyer revealed how civil cases are known as fixed deposits as they keep on adding years, becoming a regular source of income.

Legal experts say that if judges are strict, lawyers will be deterred from using such delaying tactics. Eminent law academician N.R. Madhava Menon said everyone associated with the system including the litigant was responsible for delay. "A lot of delay can be eliminated through the reform of procedures. Case planning and management is one example. Reducing adjournments by imposing heavy cost on the defaulting party is another. Eliminating too many appeals and interim orders is yet another step," he said. A survey by DAKSH, a Bengaluru-based organisation, threw up some interesting statistics on the adjournment culture. In the 21 High Courts it studied, the average time lag between hearings was 1,086 days. It found that criminal writs got prioritised, whereas civil matters were heard at longer gaps. Tax appeals had the longest time lags between hearings.

50Shambhavi2 Fight against time: Sambhavi Saxena was told by a Delhi court that it had its own priorities, when she asked for an earlier date for her case

Sambhavi Saxena, 22, went to the police on January 25, 2012, alleging that she was assaulted over a reserved seat in a Delhi metro train. She received the first communication from a trial court in Delhi on March 20, 2015. So far, only her statement has been recorded. Once when she requested the court for an earlier date, the judge told her that the court had its own priorities, including cases that had been going on since 1998.

The Hashimpura case is a classic example of justice getting derailed by delay. Twenty years after the massacre in Hashimpura, Meerut, in which 40 Muslims were allegedly murdered by personnel of the Uttar Pradesh Provincial Armed Constabulary, a trial court in Delhi acquitted all the 16 accused in March 2015 for want of evidence. Lawyers say the delay was primarily responsible for the acquittal as many of the survivors had passed away during the trial, making identification of the accused difficult.

Fifty-eight dalits were massacred in Laxmanpur-Bathe in Bihar in 1997, allegedly by men belonging to the upper caste militia Ranvir Sena. A sessions court handed down death sentences to 16 of them, and life terms to ten, but in October 2013, the Patna High Court acquitted all of them. Activists say the delay at every stage of the prosecution was the reason behind the acquittal. The FIR was registered on January 26, 1999, two years after the crime was committed; the charge sheet filed in 2001. The trial took 15 years during which time the accused were out on bail.

Delays in hearings result in justice getting costlier, especially with lawyers charging on a date-to-date basis. Every court appearance, most of which is only for an adjournment, also means the loss of a day's wages for the poor. The worst sufferers are the undertrials. More than 68 per cent of those living behind bars in India are undertrials and, going by the low conviction rate (less than 45 per cent of criminal cases end up in conviction) in criminal cases, most of them may ultimately be proved "not guilty”. A few years ago, the Supreme Court directed that all undertrials who had served half or more of the sentence they might have received had they been convicted, "a judicial shortcut," as a senior lawyer remarked. "Majority of the undertrials in jails are dalits, minorities or adivasis," said social activist Shabnam Hashmi. "They do not have access to legal system. They do not know how to fight cases. There is a huge discrimination by the police." Even if the courts grant bail, they don't have the money to pay for the surety.

Scholars say while the scheduling of cases is on the right direction, better court management is needed. "The Supreme Court and every other court in the country is very badly in need of a professional CEO," said Sankaranarayanan. "A professional CEO will decide which dates to fix for which cases. ”

Government litigation is another major reason for pendency. More than half the cases have the government as a party. A good number of cases are about one department suing another. A National Litigation Policy, which aims at preventing inter-departmental disputes from reaching the court, has been in the works for a few years. Union Law Minister D.V. Sadananda Gowda told THE WEEK that a draft policy would soon be brought before the cabinet.

48sinha1 Making a point: A public interest litigation filed by Sureshwar D. Sinha in 1992 is the longest running such case in India | Aayush Goel

Meanwhile, questions have been raised about the competence of presiding officers, especially in the lower magisterial courts. Often, these young judges get dominated by senior lawyers not just on substantial law, but also procedural law, and are compelled to accept applications.

Former acting chief justice of the Kerala High Court Justice C.N. Ramachandran Nair, who holds the record for having cleared 45,000 cases in 11 years, said the judges needed to show more initiative in clearing cases. "Judges are largely orthodox and insist on going by precedent. And they take pride in writing long judgments," said Nair. "They need to change their style of functioning."

Civil courts and higher courts going on long vacations, like in the colonial days, has been cited as another reason for cases piling up. These courts work only for about 180 days a year. "Why cannot they remain open 365 days if hospitals and emergency services can function throughout the year?" asked Lodha. "At least, we can cut down on the number of holidays. "

Menon said the government could increase the number of courts and give more funds, but ultimately, it would come down to the “human material who ran the system”. “If they change their approaches and coordinate among themselves, much of the delay can be reduced," he said.

Some states are attempting out-of-the-box solutions. In an effort to fast track land acquisition cases, which are notoriously cumbersome, the advocate-general's office in Kerala has been electronically listing the cases, making it possible to club them together on the basis of the date of notification and the purpose of acquisition. "In the last six months, around 1,000 cases have been disposed of in this manner," said a senior government pleader.

Clearly, out-of-the-box initiatives, such as doing away with cumbersome procedures in appropriate cases, are the need of the hour, said S. Sivakumar of the Indian Law Institute, Delhi. Changes in law, such as amendment to the Negotiable Instruments Act, and a law for setting up commercial courts are pending in Parliament.

The Supreme Court is in the process of finalising the optimum number of cases that can be handled by a judge. A judicial order would be passed to ensure that as soon as the number of pending cases per judge crosses that number, the state government would be asked to sanction a new post. Judging by the mountain of cases, however, reducing pendency will be a Herculean task.

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