The fundamental reason why Indian courts have a huge backlog of cases

Union Law Minister Ravi Shankar Prasad told the Rajya Sabha in July this year that more than 43 lakh cases were pending in the 25 high courts in the country, of which over 8 lakh are over a decade old.

Undoubtedly, the biggest challenge before the Indian state in the 21^st century, therefore, is timely justice. If it is not made available by the state to its citizens, human and economic development is retarded and disputed contracts, properties and securities lie frozen in litigation for years. It mocks the constitutional right to property and human right to dignity. Indeed, the credibility of constitutional governance gets steadily eroded over a period of time, if remedies are not sought, and in the case of India, that is the route the country seems headed for. Add to it, the chronic shortage of high court judges — in July this year, 37 percent of sanctioned judge-strength, was vacant — and the woes of the Indian judicial system are complete.

It is not as if the country’s highest judicial officer, the Chief Justice of India (CJI), is not aware of this deadly lacuna. Soon after joining, former CJI Justice Ranjan Gogoi passed an order which directed that judges of high courts and subordinate courts must not take leave on working days, except in an emergency.

Incredibly, this direction did not apply to the apex court, which should have been the case in an ideal world. As a convention, the Supreme Court sits usually for 176-190 working days in a year, the high court for 210 days and trial courts for 245 days a year, with the remaining half-a-year as vacation/holidays.

This includes roughly 104 Saturdays and Sundays, nearly one-and-a-half months of summer vacation, a fortnight of winter vacation, besides several other offs that range from a day to a week.

As an advertisement enticing job seekers, such an opening would be considered unique, but for the huge backlog of cases that stare at the courts in the face.

Take Justice Gogoi’s tenure, which began on October 3, 2018. It was followed by a week of Dussehra vacation (October 15 to October 20), a week of Diwali break (from November 5 to November 10) and beginning December 17, the Supreme Court had the unusual fortnight-long winter break till January 1, 2019! And in the middle of some important cases began the long customary summer vacation (May 13, 2019, to June 30, 2019). Such yawning vacations disturb the impetus of judicial work.

In addition to these long holidays and vacations, the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958, provides individual judges their own quota of earned/casual/medical leaves.

Additionally, it would be difficult to deny a judge these entitled leaves if she/he is willing to avail it on a working day. It makes working hours in the Supreme Court and high courts even in these restricted days, a trifle too leisurely.

While eight hours a day and 48 hours a week constitute a normal working period, judges generally work from 10.30 am to 4.00 pm with an hour of lunch break. These working hours are further marred on Mondays and Fridays every week on account of it being a miscellaneous day. Insufficient judicial manpower working four hours a day for 190 days a year, cannot guarantee timely disposal of new inflow of cases, what with a massive backlog already at hand.

The Indian situation cannot be compared to the American system – it can only be contrasted. The Supreme Court of the United States does not have an annual vacation and gets only ten holidays in a year. Although the hearing sittings are limited to a few months, during the rest of the year, the judges are ‘at work’, reading, researching and holding conferences on the cases that are within their charge. In the remaining few months that are available to pronounce judgments, they effectively dispose of entire dockets of cases.

It is imperative, therefore, that if this vicious cycle of arrear and delays are brought to a fruitful conclusion, then there is an immediate need to first shorten the long vacations and holidays routinely enjoyed by judges of the Supreme Court. Such extensive vacation and holidays are outdated in terms of its relevance, as well as the need.

The Law Commission of India had suggested that vacations be shortened by at least 10 to 15 days and working hours of the court extended by at least half-an-hour.

If courts cannot function the year-round, giving individual judges the choice of holidays and vacations, as proposed by the then Chief Justice in 2014, then shortening of holidays/vacation and increasing working hours seem to be a more workable initiative.

There is little doubt that the entire question of ensuring timely justice has to begin from evidence-based pendency, which turns into arrears. The key question is this: why should pendency be allowed to fester for it to become an arrear? As usual, prevention is better than cure. Experts believe that if the analysis is started at the pendency stage itself, then the causes can be pin-pointed and timely action taken by the high court concerned before matters get out of hand.

The possible solution for pendency and arrears could be case management, court management, witness management, hearings management, and document management, along with deployment of sufficient judicial manpower. That looks like the only way out.