Why Courts and Tribunals Are Still Playing Catch-Up With Backlog

Efficient case management will certainly reduce the backlog and allow courts to focus on substantive issues.

That courts in India have the notorious reputation of functioning languorously is well-known. There are 57,346 cases pending before the Supreme Court as of January 1, 2019 (including cases which are not ready to be heard for want of procedural matters to be completed).

Although this may not be the best way to judge the swiftness and efficiency of a judiciary, the judge to population ratio is a good indicator of at least the problem of demand-supply. The 120th law commission report suggested a judge to population ratio of 50 for every million (from the then abysmal 10.5 for every million).

The 245th report of 2014 analysed the problem of backlog from various angles including arrears, delay and processes, and came up with statistics of how much needs to be done in various high courts and subordinate courts across the country.

According to data released by the law ministry, the judge to population ratio increased to 19.49 judges for every million as of 2018.

The scuffle between the Supreme Court and the government over appointment of judges has been heavily reported (and criticised) and is a matter for a whole other piece. Suffice to say that there is a gross lack of sitting strength compared to the amount of caseload.

The diverse things that occur during a case

As a practicing lawyer, here’s an account of the diverse things that happen during the life-cycle of a case (especially in lower courts and tribunals but also in the higher judiciary) that dip into the time taken for a matter to see fruition. Actual enforcement of course is another matter.

In some tribunals such as consumer fora or labour courts, matters may not even be taken up serially but based on as and when lawyers or parties turn up (if the matter is being pursued in person), although they are called out serially.

Through the years of practice, lawyers have had to return from court rooms or other quasi-judicial fora (having prepared to have a matter argued the previous night) on several occasions because a judge was not sitting, no one had been appointed in place of a transferred member for months, the other side was changing advocates and such change took anything between 3-4 dates.

Any significant step taken by one party is then followed by a series of dates. It is as if the taking of an effective step permits allowances in terms of time. There have been times when lawyers are “striking” for one or another reason and those that want to argue their matters have not been allowed to even enter the court room with threats of physical violence.

Some years ago, I had braved one such “strike” and gone to the district court in Saket, Delhi for my case. The judge looked at me sympathetically and said, while he was happy to hear the matter, he would not record my name but just record a “proxy” for my safety and not invite the ire of the striking lawyers.

In one matter recently, I had to return since the tribunal’s building was undergoing repair. In the midst of the crumbling debris, the sitting clerk asked me to come on another date even to take the next date.

The scuffle between the Supreme Court and the government over appointment of judges has been heavily reported. Credit: PTI/Ravi Choudhary

Interim reliefs

In contrast, when litigation has to proceed swiftly, it can and does even in a matter of few hours or days. In the high courts and the Supreme Court, urgent ad-interim or interim reliefs are being sought, a court may be moved and a decision rendered within a day. You can even move the house of a judge on a holiday if extreme urgency is shown.

On the strength of an ad-interim/interim order then, the main case itself can take the time it will because the most pressing problem has been temporarily remedied. The interim order allows the winning party to enjoy the benefits of a slow moving judiciary, since such party can sit on an order (even one that may be eventually vacated) for months.

Often, trials of matters are stayed (even sine die) as a result of some jurisdictional or substantive issue and in such matters, proceeding back to trial can take a lot of time. The Supreme Court did attempt to remedy this situation by way of a judgment it passed in 2018. It stated that a stay granted for trials in civil or criminal proceeding would stand vacated in six months from the date of that judgment (or six months if such stay were to be granted after the date of that judgment) unless extraordinary reasons are shown and the stay is extended by way of a speaking order.

Also Read: What We Can Do to Reform the Tribunals Framework in India

It is not as if the entirety of the judiciary is not proactive. It is, in fact quite to the contrary, where a vast majority of judges are overworked and have to deliver justice (or a version thereof) despite questionable infrastructure. They have to share stenographers, have access to old computer systems and have to deal with a mammoth number of cases every day.

Those that can afford to privatise dispute resolution (such as corporates) are able to benefit from arbitration. The legislature, governments and courts in India have had a very pro-arbitration stance over the last six-ten years. The Arbitration and Conciliation Act, 1996 was amended in 2015. It is being further amended as of 2018.

Institutional arbitration has been the recommended course of action in recent times and on March 2, the New Delhi International Arbitration Centre Ordinance, 2019 was passed to boost India as the hub of international arbitration. All of these developments are welcome.

Yet, there are some fora such as green tribunals and debt recovery tribunals which continue to function as they did, without many strides.

New legislation

New legislation has attempted to tackle the problem of delay in India. The 2018 amendments to the Commercial Courts Act, 2015 require that unless parties are seeking urgent reliefs, they must go through a compulsory pre-institution mediation under Section 12A so that they can attempt a settlement of their matter and litigate only upon such settlement not happening. The idea is for fewer cases to reach court.

The Commercial Courts Act has also introduced provisions into the Code of Civil Procedure, 1908 which provide for the introduction of a (much needed) case management hearing. According to this, (Order XV-A) a case management hearing is to be held in commercial suits where after the stage of admission/denial of documents, the Court will hold a hearing in order to set a timetable for various procedural issues in the case.

At this hearing, the court will first decide if it is a case that requires to go to trial. If the court has arrived at that decision, then it will pass an order framing issues in the suit, setting out the list of witnesses to be examined by the opposite party, fixing dates for evidence, written and oral arguments with time limits thereto (to be fixed such that arguments get over not later than six months from the first case management hearing).

The provision also discusses the various other powers a court would have during a case management hearing including striking off parties, disposing off pending applications, consolidating proceedings, etc. This provision was introduced with a view that practically all matters in a suit other than the final hearing may be dispensed with through the case management hearing.

Practically, suits in Indian courts take a number of years to finish because interim applications and their appeals, applications for introducing or removing parties or bringing heirs on record for deceased parties, applications challenging jurisdiction of the court which usually require to be heard on a preliminary basis, applications seeking impleadment tend to divert the straight course of a suit and tack on further years to the proceeding.

Each application has its review applications and appeals as a result of which, like a slow moving, over-crowded train, the final disposal of the litigation takes decades. Court boards typically have between 50 to 100 cases a day. After one hearing, unless an early date is sought, the matter gets placed in a week or two, sometime more. The life-cycle of an application as a result can range between a few months to even two to three years. Imagine how much that might stymie the actual litigation.

Time will be liberally sought

Unless urgency is shown or pressed by a given party, dates are routinely given based on a wide variety of reasons including the availability of clients and counsel, what matters may be taken up on a given day by a given judge, whether a given matter has been part-heard and remains to be completed on the next occasion.

In lower courts and tribunals, it is almost par for the course to seek adjournments on reasons as varied and sometimes even reprehensible as illness of a relative, dates clashing with other cases, being stuck in another case, weddings and other family issues, travel or, on occasion “not being prepared” to go on with the matter.

As a result, it has become systemic to court practice, that time will be liberally sought (and often given). There is also a sense with judges that they should not be seen as disallowing parties a fair opportunity. But as a result, the cycle of taking time perpetuates. It would be unfair to suggest that the system is not changing. City civil courts in metros are much faster with disposal than earlier. Judges are usually earnest with the material on record and happiest when matters come to an end (or even better, settle).

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To my mind, case management is indeed key. Singapore has done it very successfully and there is no reason why our courts cannot emulate (and even outperform) those around the world. Given a decade or so of institutionalised, disciplined and practiced case management, this is manifestly possible.

A lot of judicial time will be saved when several (often pointless and highly technical) issues are taken up in one or two hearings where lawyers sit together in judges’ chambers and knock them out, issue by issue. This may take time to become endemic, but once it does, everyone involved will benefit from it.

If there is one thing that lawyers and judges love, it is custom. If things are done a certain way, they continue for years as a matter of practice and tradition. There is no reason why case management cannot become a custom.

Trials also need time tables. Case management achieves exactly that. If (like in an arbitration where Procedural Order No. 1 is the key battle since all dates and procedural steps are decided by it) lawyers on both sides, the judge and parties have a sense of when and how their case will move, everyone involved will work towards an agreed central module whether it is witnesses that need to be gathered from other cities and countries or documents that need to be discovered and produced.

There is always a party that benefits from the delay of litigation. But if delay is taken out of the equation (or at least minimised) the fight can then be real on substantive issues that actually count. And may be, justice will also be seen to be done.

Shalaka Patil is a lawyer and works in dispute resolution in a law firm in Mumbai.