The right to speedy justice is a part of the right to life under article 21 of the Indian constitution. This has time and again been reiterated by the Indian Judiciary in cases like Hussainara Khatoon v. State of Bihar,A.R. Antulay v. R.S. Nayak, etc. This right is also part of various international instruments like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. But statistics show that the problem of unreasonably high delays in judicial proceedings is endemic in the Indian courts. As of 2016, 21.3 million cases were pending in India. An article in 2015 reported that if the judges “attacked their backlog non-stop with no breaks for eating or sleeping and closed 100 cases every hour, it would take more than 35 years to catch up.” Therefore it is crucial to analyse the reasons for such delays. The aim of the project, however is not to analyse all such reasons. The project is restricted to the under-researched and often ignored reasons of such delays and to try and identify the gap in the existing literature.
Before proceeding, it is important to understand what is meant by delay. In this regard, it must be noted that ‘delay’ is different from ‘pendency’. While pendency includes all pending cases even if they were filed a week before, a delay occurs when a proceeding takes longer than the normal time taken by such cases. Although there is no rule for determining what is normal as it is a case to case analysis, the Malimath committee and the Jagannadha Rao committee had set two years as the bench mark. However, the Supreme Court (‘SC’) has categorically rejected any such time-limit in the case of Ramchandra Rao v. State of Karnataka with respect to criminal matters.
A Brief Review of Existing Literature
The problem of delay had been a focus of various commissions and committees and the law commission alone has dealt with this issue in at-least 14 reports.. From 1924, several committees like the Rankin committee, the High Court arrears committee of 1949, the 1967 Survey Report and the high court arrears committee of 1972 and 1990, etc. have all identified insufficient number of judges and the consequent vacancies as the primary reason for such delays.
Other factors that can be culled out from the work of these committees, law commission reports and other studies include misuse of PILs, insufficient use of alternative ways of dispute resolutions, inadequate use of technological and other management techniques, lack of infrastructure, non-compliance with the requirements of the Civil Procedure Code (‘CPC’), lack of specialized knowledge, etc. The lack of government expenditure is another important reason for such delays. Report of the first national judicial pay commission indicates that India spends only 0.2 % of its GNP on the judicial system. A comparison with countries like Singapore, the United States of America and the United Kingdom which spend 1.2, 1.4 and 4.3 % of their GNP’s respectively highlights the gross insufficiency of expenditure by the Indian Government.
Identifying the Gap in the Literature
While the above mentioned factors are indeed important reasons for the existing delays, they are only the tip of the iceberg. Recent studies by Vidhi Centre for Legal Policy (‘VCLP’) and by organisations like, DAKSH provide useful insights on certain under researched, but extremely crucial areas.
A report by VCLP pointed out the inadequacy of the current methodology, which largely relies on outdated and inaccurate data, employed for finding out the reasons for delay. It pointed out the lack of independent data driven research and in-depth analysis of reasons for such delays. Relying on the in-depth analysis of the data obtained from Delhi high court, it provides some very useful insights enumerated below.
The report highlights certain inefficiencies on the part of both courts as well as counsels/ litigants. It was found that 97% of the delayed cases included at-least one of the inefficiencies. Court side inefficiencies, which are 18 % of the total, include the absence of the judge on the day of proceedings and the insufficiency of time. Counsel side inefficiencies, which are 82%, include the time sought by the counsel, the absence of counsel, condonation of delay and the restoration of suits. Within the inefficiencies, the time sought by the counsels and their absence are the most recurring ones. With regard to counsel sought time it was found that in 91% of the delayed cases, at-least one adjournment was granted and in 70 % of such cases, the proceedings were adjourned more than three times. It is important to note that the CPC suggests that no more than three adjournments should be granted. However, the report shows that such adjournments are routinely granted.
This brings us to another less focused reason for such exorbitant number of delays – ‘the existing mind set within the judicial system that let such a culture of delay to fester’.
Based on the recommendation of the Malimath committee certain amendments in 1999 and 2000 were made. However, the amendments have failed to provide the intended change. The 1999 amendment, sets an upper limit of three adjournments. However, the SC has rendered such amendment essentially non-functional. In 2005, the SC in the case of Salem Advocate Bar Association-II has interpreted that such a limit does not restrict the power of the court to grant adjournment more than three times.
It is important to note that according to Order XVII, Rule 1(1) of CPC, a party needs to satisfy the threshold of “sufficient cause” for getting an adjournment. What amounts to “sufficient cause” is inferred from sub-clause 2, which states that the circumstances must be beyond the control of the party that seeks such adjournment. Thus, if a party can demonstrate a sufficient reason beyond its control, it should be granted an adjournment. Now, whether it is a fit case for granting an adjournment or not depends on the facts of each case. Thus, a good way to strike a balance would be the use of section 35(B) of the CPC which allows the court to impose costs. If it is evident that the adjournments are being sought on flimsy grounds or on similar grounds as a matter of routine, the court should impose costs. However, the report by VCLP shows that the Delhi High Court imposed costs only in 20% of the cases where the counsel sought time more than three times.
Similar attitude of the court i.e. the reluctance in specifying a time-period can be deciphered from some other instances listed below. The 1999 amendment had also specified the time-limit of 30 days for service of summons on the defendants. The court in the case of Salem Advocate Bar Association-I relaxed the interpretation to mean – the time-limit within which the plaintiff has to take steps to enable the court to issue such summons as opposed to the actual service of summons on the defendant.
In 2002, another crucial time-limit was specified that provided for written statements to be filed within 90 days. However, the SC in the case of Kailash v. Nankhu relaxed this statutorily prescribed time limit by interpreting the amendment as merely directory and not mandatory. Although the court stated that the time limit must be breached in exceptional situations, this exception has more or less become the normal.
These instances illustrate the obvious reluctance of the courts in following the procedures that require adherence to a time-limit. It is useful to mention that following such time-limits have significantly led to reduction in number of delayed cases in several jurisdictions like the United Kingdom and Singapore. Thus, even if the factors like vacancies and other infrastructural requirements are fulfilled, there is a need of a change in the perspectives of the entire judicial structure wherein the procedural requirement must be taken seriously.
The report by VCLP also highlights that if all the inefficiencies are eliminated, the delayed cases would contain 60% fewer orders than it does now. Thus, it is evident that these inefficiencies contribute heavily in delaying the cases at-least in the Delhi high court. It should be noted that since Delhi High Court has a lesser rate of delays than other Courts in India, it can be reasonably concluded that the position is much worse in other states. However, there is a need for similar in-depth analysis of various other jurisdictions in order to find out the often ignored reasons for such delays which could help in finding effective remedies for the current situation.
Another reason for delays is the use of Appeals to obtain orders that stay the proceedings of lower courts till that appeal is disposed. A study of Rajasthan, Madhya Pradesh, Odisha and Gujarat in 2016 conducted by the Law Ministry found that stay orders extend the life of a case by 50%. Data from National Judicial Data Grid lists also shows that in 15.61 % of the cases delay is caused by the grant of stay orders. However this result is obtained by information from only 10 states and include both civil and criminal cases. Therefore, there is a dearth of data that would help in determining the extent of delay that is attributable to the grant of stay orders in civil cases. However from the limited available data, it can be reasonably concluded that stay orders lead to a substantial amount of delay.
The SC in the case of Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigationhas restricted the duration of such stays to 6 months, which is indeed a welcome change. However, since the main issue before the court was not delay, it can be regarded as an obiter. Thus, a lot will depend on how the courts interpret the judgment which takes us back to the need for change in mind-set prevailing within the judicial system.
Another interesting result that was pointed out by a survey conducted by DAKSH was the correlation between the type of litigant and the consequent delay in civil cases. It was found that when the government or a corporation is the plaintiff and the defendant is an individual, the case takes substantially less time than when the government or the corporation is the defendant. This shows that government entities and corporations are successful in moulding the justice delivery system in their favour. This result is extremely crucial since the government is a part of nearly 50 % of the litigations in the Indian Judiciary.
The report also found the co-relation between delay and the educational qualifications of the litigant. The inference was that; litigants with lower educational qualifications are more likely to get their cases delayed. Furthermore, it was also found that litigations which involve recovery of money and matters which pertain to land and property are more likely to get delayed. This is partly because of the existence of conflicting laws regarding land disputes. A good remedy in this context can be following Sweden’s example by creating special courts. Nearly half of the litigation in Sweden are held by special courts that are meant for dealing with administrative, rent and tenancy disputes. It is admitted that size of Sweden is significantly smaller than India, but a similar practice can be employed by India. However the need for an “in-depth”, “data driven”, and “specific” research which would help identify similar co-relations still exists.
From the above analysis, we see that the existing literature fails to identify many intricacies that lead to such delays mostly due to the lack of data driven research. We also see that apart from reforms such as implementation of better technology, building infrastructure, filling up vacancies, there is a simultaneous need for a broader change in the mind-set prevailing within the entire judicial structure where procedural requirements are interpreted as strictly as the substantive ones and the exceptions remain the exceptions.
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 Supra note9, at1.
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 Supra note9, at16.
 The Code of Civil Procedure, 1908, Order XVII, Rule 1.
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 The Code of Civil Procedure, 1908, Order XVII, Rule 1(2)(b).
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 Supra note9, at21.
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 Supra note9, at16
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