Issue of Rising Arrears and Pendency in Indian Judiciary: A Consequence of Non-Adherence to Policy Recommendation and Uninformed Policymaking

The Indian judiciary at all levels has been clogged with a huge number of cases which are awaiting disposal. As per the latest report of the National Judicial Data Grid (NJDG), as of May 2022, there are over 4 crore cases pending in the Indian judiciary. Over the last decades, the Government has been making efforts to tackle the growing problem of arrears, but the pace has been really slow. There have been a number of Law Commission Reports (77th¹, 79th², 80th³, 124th⁴, 245th⁵) established by the Government to review the functioning of the subordinate courts and High Courts and to give recommendations to improve the situation. The Commissions have often diligently given concrete suggestions with regards to increasing the efficiency of the courts and managing caseload in the courtrooms, but the same had not been implemented by the Government in letter and in spirit. To the overall dismay, the total budget allocation for the Ministry of Law and Justice has been a meagre 0.1% of the overall GDP of the country. With limited funds and the lackadaisical attitude of the Government to implement suggestions, there has been an increasing burden on the Judges to dispose of the matters in time.

As per the latest report of NJDG May 2022, the agewise pendency in the Indian courts stands as follows:

Agewise pendency of cases (as on 1-5-2022)

Source: NJDG agewise pendency⁶

Access to justice

In accordance with the duties imposed by the Constitution of India⁷ on the State, it is incumbent upon them to ensure access to justice for all. However, this access cannot be merely in terms of physical access to courts. Access to justice is a broader concept which includes, but is not limited to, citizen-centric judicial services along with the easy process and steps to ensure litigants can easily submit their petitions before the judicial officer concerned, simplified policies and working rules for judicial officers, affordable and speedy justice, real-time sharing of data amongst the stakeholders, removing barriers to normal flow of cases, integrated justice delivery process and ensuring that cases are not delayed due to infrastructural inadequacies. The Supreme Court of India in a number of its landmark judgments has reiterated that the right of access to justice is a fundamental right of the citizens which entails efficiency, speed, and affordability. However, with the increased reliance on digital media to access courts, store and transmit judicial data it has become imperative to understand access to justice in light of real-time sharing and transmitting data as a fundamental pillar of access to justice. Through an integrated justice delivery system, under both civil and criminal laws, the authorities could be brought on one single platform to share their real-time data with each other. The pilot project of the Integrated Criminal Justice System (ICJS) being run in the State of Telangana is an excellent example of how authorities like the police, prison and courts can be brought on one single platform for real-time sharing of information amongst them in order to reduce cost and time in justice delivery process. To add further to this initiative and bring more efficiency in services, the Governments must also bring the forensic labs (Central Forensic Science Labs/State Forensic Science Labs) onto the integrated platforms for better coordination among the investigation-prosecution network in criminal justice system.

Rising arrears and pendency in the courts

The issue of rising arrears and pendency is not a linear problem and has to be grasped from multiple different factors which come together and produce an effect of rising pendency and arrears and in consequence impede the citizens’ right of access to justice. Through multiple doctrinal and empirical studies conducted by the authors, a number of factors have emerged which affect the efficiency of the courts and lead to delays in the early disposal of cases. Some of those factors are listed hereunder:

Inadequate court complexes: There are States which have deplorably less number of court complexes per district which has an impact on the overall capacity to admit disputes and allocate sufficient resources for their early disposal. In States like Uttar Pradesh and Bihar, there are just two court complexes for every district. These are some of those States where the pendency rate is high. In Uttar Pradesh, there are 1,01,90,901 pending cases whereas in Bihar there are 33,96,383 pending cases as of May 2022. In Andhra Pradesh, there are about 14 courts in each district which has an impact on the number of pending cases which stands at 7,93,363. Thus, having inadequate court complexes is one of the predictors of the rising arrear of cases. It is imperative that more resources be allocated to increase the judicial manpower at the local district level to handle rising arrears of cases.

Inadequate appointment of Judges: There is a huge deficit in the appointment of Judges against the sanctioned quota of Judges in each High Court. In States like West Bengal, Gujarat, Bihar, Telangana, Orissa, Delhi, and Andhra Pradesh have around 50% of the total seats. It is vital to take sincere steps to fill the vacant seats in the higher courts. Not doing so in time will lead to even more pendency and delays in the judicial system. However, any haphazard and knee-jerk reaction toward filling the vacancy might compromise the merit. The authorities must consider filling vacant seats as essential as maintaining the system’s efficiency.

Poor Judge to case ratio: In India there is poor Judge to case ratio which shows how much burden the judicial officers in the country are under. The data as of May 2022 of NJDG suggest that Judge to case ratio is highest in Rajasthan (33,536 cases per Judge), Himachal Pradesh (29,387 cases per Judge), Bihar (28,541 cases per Judge), Uttar Pradesh (28,180 cases per Judge), Gujarat (27,624 cases per Judge), Karnataka (24,098 cases per Judge), Punjab & Haryana (22,906 cases per Judge), Madhya Pradesh (22,872 cases per Judge), Telangana (21,762 cases per Judge), Uttarakhand (20,960 cases per Judge). This ever-increasing burden on the Judges coupled with lesser Judge strength on the Bench has a devastating effect on the individual efficiency of the Judges as well as the quality of the judgments.

Technology-based services of the court: In order to improve the facilities in the court and make the system user-friendly, the Government of India under the e-courts project has initiated a number of steps from automation of case workflows, to interoperability, automated delivery of summons/notices, artificial intelligence-based judgment translation tool, machine learning- based document analytics tool, e-payment and e-filing gateways, virtual courts, judicial data management system, etc. to name a few. These technological assistance tools have increased the efficiency of the courts by removing the hassles involved in a paper-based system. Thus, sharing data has become easy and saves a lot of time. Also, the litigants have access to virtual courts, filing and payment gateways which helps them access the justice system from even the remote parts of their place of residence without the need to visit the courts frequently. But these technological tools also have the potential to create a digital divide among the users of the justice system. On one hand of the divide are those who have access to internet and other technologies and on the other who do not have access to basic technologies. It is therefore imperative that the policymakers do not rush towards an entirely digital judicial system without first ensuring that all the citizens are connected to the technology infrastructure and have basic technical facilities at their disposal.

Structural and policy impediments: The judicial officers who occupy the position as the head of the courts enjoy independence in terms of their selection and functioning. They do not take orders from other branches of the State, and they directly interact with the general public who come to their courts as witnesses or parties. However, there are several policies within the judicial system which were initially designed to improve the impartiality of the Judges but have led to inadvertent and unintended consequences of perpetuating lackadaisical attitude among the judicial officers. Some of these policies are:

(a) frequent transfers and no home-district postings which makes the Judges outsiders to the system after every 2-3 years;

(b) promotions based on seniority;

(c) constant struggle between the Bar and Bench leading to bandhs and boycotts of courts.

These hidden traits of Indian judiciary have a far deeper effect on the performance of the Judges and overall efficiency of the court, further impacting the citizens right of access to justice.

Conclusion

The citizens possess a fundamental right of access to justice which has been adversely affected due to rising arrears and pendency in the system. The reason for such pendency includes inadequacies in infrastructure, including lack of appointment of Judges and uninformed policymaking for judicial officers. There have been efforts made to enhance the capacity of Judges and other stakeholders of the system by integrating technology for court services. However, such efforts must be carefully implemented keeping in mind that the digital divide which exists in India, so as not to further the divide in judicial system.