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Resource centre on India's rural distress
 
 

Focused solutions required to clear pending cases by Bibek Debroy

-The Economic Times

 

All of us are bothered, or should be, about interminable delays in adjudication through formal legal systems. Gypsies are believed to have originated in India and there is a gypsy curse - may you have a lawsuit in which you are in the right. In 2010, there were 54,600 cases stuck in Supreme Court, 4.18 million in high courts and 27.89 million in lower (district and subordinate) courts.

Pedantic differences can be drawn between words like pendency, backlog, arrears and delay, but let's treat them synonymously. I am puzzled. Supreme Court has a publication called Court News. Earlier, through this, you could get reasonably up-to-date information on backlogs. There were time lags, more for lower courts and less for Supreme Court. Subject to that, you got data.

With all this emphasis on reducing backlog, you would expect data to improve. It hasn't. Consequently, Court News data is still for 2010. You obtain subsequent data only when Chief Justice, or some other judge of Supreme Court, delivers a speech. Thanks to such a recent speech, we know backlog in Supreme Court is 56,383 in November 2011. And in high courts and lower courts, in 2010, backlog was 31.9 million. There is more analysis. Quality of data is better for Supreme Court. However, for high courts and lower courts, data quality, interpreted as time lags, seems to have become worse.

That 31.9 million figure, for high courts and lower courts, mentioned by Chief Justice on November 26, 2011, is for December 2010. We now have a break-up of old cases versus new cases, so to speak. The threshold used by Chief Justice is five years and we have been told that 74% cases are less than five years old. Around 26% cases are more than five years old - around 8.5 million (26%) is still quite a number. In general, it is always useful to separate high courts from lower courts, since dimensions of the problem are somewhat different.

For instance, roughly two-thirds of backlog is criminal cases. Criminal cases tend to be concentrated in lower courts and civil cases in high courts. For whatever reason, data on old cases is no longer placed in public domain, perhaps because there are question marks about quality of data. For high courts, I have a figure that goes back to December 2005: 5,31,477 cases in high courts were more than 10 years old. Data on old cases is even more difficult to obtain for lower courts.

Strange though it may seem, such data goes back to late 1990s. It shows 31% of civil cases in lower courts are more than three years old and the figure is 25% for criminal cases. On an average, across high courts and lower courts, around 15% of cases are more than three years old and around 0.5% are more than 10years old. Though high courts and their jurisdictions vary widely, on an average, such old cases number between 7,000 and 8,000 for every high court jurisdiction.

Chief Justice flagged a focus on cases more than five years old and Section 138 of the Negotiable Instruments Act. Around 3.8 million cases are pending in lower courts under the Negotiable Instruments Act. There are generic issues and general solutions connected with reducing backlog. But specific focus is more than about old cases and Negotiable Instruments Act. For instance, government litigation policy for civil cases crowds out citizens from using the court system, though Section 80 of Code of Civil Procedure allows out-of-court settlements. Other than Negotiable Instruments Act, focus on Motor Accidents Claims Tribunal (MACT) cases, petty cases, old cases and cases related to excise is also possible.

Many 'crimes' under Special and Local Laws (SLL) should no longer be 'crimes' in a climate of liberalisation. If one can lick Allahabad (another Bench), Madras, Bombay, Calcutta and Punjab and Haryana, one will solve 60% of the backlog problem in high courts. Similarly, 70% of the backlog problem in lower courts can be resolved by focusing on Uttar Pradesh, Maharashtra, Gujarat, West Bengal, Bihar, Karnataka and Rajasthan. I have a problem with generic solutions, not because they are unimportant, but because they are often expensive. Increasing number of courts to 35,000 is by no means cheap.

Focused and incremental improvements are cheaper, though they have been snidely referred to as load-shedding. Lok Adalats, fast-track courts, Family Courts, mobile courts, Nyaya Panchayats, Gram Nyayalayas, People's Courts and Women's Courts are examples of focus and fast-track courts were also originally meant to have focus.

The really interesting part of Chief Justice's speech is analysis of Supreme Court. To repeat, 56,383 cases are pending in Supreme Court. Just so that we have the perspective right, in 1991, backlog in Supreme Court was 1,34,221. It dropped to 19,806 in 1998, and this improvement was ascribed to IT usage and better case management. The numbers have climbed and in 71% of cases, "preliminaries have not been completed". Of 56,383, only 16,444 cases are 'ready'.

Stated simply, this means that process fees have not been paid, notices have not been served, pleadings have not been completed, case statements have not been filed and so on. Per case, these preliminaries take 710 days. Stated differently, these preliminaries are outside direct control of judiciary. They depend more on lawyers. If one is making a general observation that lawyers (and litigants) are often responsible for delays, that's a fair point to make. Especially in civil cases, once issues are framed, one almost knows the outcome.

Whoever benefits from status quo tends to prolong the case. However, in Supreme Court, these problems also existed in 1998.

(The author is Professor, Centre for Policy Research)