Legal delays

Suggestions for reducing delay and the number of pending cases in our courts:
We should remember that it is better to complete a few cases every day than to 'hear' many cases a day!Hearing many cases is an input but completing cases is the output. If we have to increase the output, which is the only way to at least arrest the cancerous increase every day of the number of pending cases, the justice administration authority should insist on the number of cases completed, not just the number of cases heard, by every judge in the lowest courts upwards to and including the Supreme Court. This should form a criterion for elevation of judges.
The root-cause for delay is the sum of waiting times and not the time required to give justice, as it is made out to be.
The root-cause of the problem for only hearing and not completing cases is not the time for processing a case – I mean the time for hearing arguments on either side and for the judge to apply his mind and deliver the judgment - but it is the sum of waiting times in the process of the justice delivery system. Unless this waiting time is reduced significantly, there is no way the time for delivering justice will come down. In this sense the process that goes on in courts is identical to the process that goes on in industry and institutions all over the world: It is the waiting time that is the key contributor to the delays and low throughput and not the process times.
Here are a few suggestions for reducing the waiting times:
Suggestion 1: When a judge in any court gives the next date for hearing, it should not be more than a week from the current date of hearing. There is no data or information on earth in today’s internet-connected world that cannot be collected and submitted to the court within one week. In case the judge decides to time the next hearing beyond a week, the judge should give a reason/justification for the extended period of time. I have often seen that the dates given at the smaller courts are at least one month later, and that too on the working day following the completion of one month from the current date and not even one working day earlier to the completion of one month!
Suggestion 2: There should be a ceiling on the number of such postponements of hearing. Today the postponements are for the flimsiest reasons one can think of or for no reason at all! If this ceiling is crossed, and / or in case one of the parties do not appear, (this happens just for getting the case postponed by one party and not for any genuine reason more often than not), it should be made clear by the justice delivering authority in this country that the court will go ahead assuming the absence is deliberate and is meant to thwart the timely delivery of justice and that it will deliver the judgment ex-parte, in the very next hearing that is just one week away, on which there can be no appeal or an appeal to be filed within not more than one week.
Suggestion 3: The judge should come to the court room after reading the relevant papers: This is quite different from today’s practice – at least in smaller courts- that the judge gets the relevant file only when he arrives in the court room. He then starts reading it from the first page and normally the file size is quite thick since the case is going on for at least two decades, and in the meantime, so many judges have changed. As the learned judge is reading the file, everyone else is waiting. If the learned judge comes prepared with the facts of the case, and asks a few vital, probing questions to the advocates on either side that can extract the distinguishing information regarding the legality of the case, justice can be delivered much more speedily. This practice of reading the file and jotting down the vital few probing questions before a judge comes to the court room makes the judges more productive in less time and thus makes them more effective. This may reduce the number of hours the judge spends in the court hall but vastly increase the number of cases not just heard but completed and closed.
Suggestion 4: In the current system, the number of cases just heard per day helps all including advocates, judges and others except the hapless citizens of this country who are the affected parties. So, the number of hearings is advantageous to all stakeholders except the hapless citizen and therefore, whereas the number of hearings keep increasing, the number of cases getting completed keeps decreasing or remain stagnant. Where is the incentive for advocates and judges to close a case? So the current reward system is in the interest of all in the justice delivery system except the hapless citizen looking for timely justice. The reward system should be changed for all involved namely advocates and judges. This country has enough cases pending for feeding the next two generations of advocates and judges at least, so the fear of reduction of income for these people is totally unfounded. Imagine the automobile industry starts doing this, we have to wait for acquiring a car, after booking one, for two generations!
Suggestion 5: More critical than the number of judgments delivered by a judge, is the quality of these judgments. This seems to be an area which no one dares to tread because the trespasser may invite the dreaded contempt of court law. As no one can pass a judgment on the quality of a judgment, the only option we have is using a higher court judgment as a test on the quality of the lower court judgment.
So we suggest as follows:
If any judgment is sustained by the next higher court to which it is appealed, the judge who has passed the judgment at the lower court should get one point on his performance. This is the reward he gets for applying his mind seriously before passing a judgment. Likewise, if a lower court's judgment is reversed by the next higher court, he should get a negative point in his performance. This will deter any judge to give judgments without considering all the points put forth by the advocates for both the parties and without fully reading the file. This will enable him to apply his mind to what the relevant law says and then give his judgment. Today there is a gaping loop hole in this aspect as there is nothing in the justice delivery system that positively prevents a judge from overlooking some key points of law, though they have been put forward by the advocates. There is nothing in the justice delivery system of today that positively prevents extraneous considerations from getting in. After all the judges are also human! As Addison's law states: "If anything can go wrong, it will."
There is another factor that facilitates giving judgments without full application of mind to all the points raised by both the advocates: The lower court judges seem to think that their judgments do not matter that much, because they can always be appealed against! The result is the system we currently have facilitates and encourages appeals, thus over-loading high courts and the Supreme Court.
The cumulative net points to-date earned by a judge as suggested above should be a key parameter in the decision to elevate a judge or not. At least this will bring in much needed accountability in the deliverance of justice. As the system stands today, the accountability of judges in such a critical system as the justice delivery system, is jeopardized.
An ineffective system assumes that people have to be accountable for the role they play, whereas an effective system has catalyst elements in it to make sure that people are indeed accountable for the role they are expected to play.
Suggestion 6: As anything to do with courts take long, even the improvements to the system may take a long time to come. A centipede that is crawling may take a man walking at normal speed as super fast and think such a speed is impossible to achieve by anyone in the world! This perception is already deep in the justice delivery system in India, our country, as can be seen in the statement "justice hurried is justice buried". The million Rupee question is: what is the definition of hurried justice? Is anything less than quarter of a century 'hurried'?
To mitigate the damage done to the aggrieved party in the meantime, the least the courts could do is to expect execution of the judgment of the lower court, without any further delay and prescribe severe punishment for not complying with the lower court order and executing it. Such a provision will at least deny the enjoyment to the wrong-doer till the final judgment is delivered in all civil cases. This will also drive accountability in judges of the lower court since their judgment has now weight in the sense it will be immediately executed. If the lower court judgments are implemented immediately on expiration of appeal period (what is the need to file an execution suit when there is a provision for appeal against any order?), it would be a far better situation. The total number of cases would come crashing down, as the execution suits, that are equal in number to the suits on which any court delivers any judgment, are no longer required. Of course this has to go with other suggestions in this write-up.
Suggestion 7: Why courts shut down during 'vacation'? I had often wondered why courts have a summer vacation. They are not kindergarten schools nor are the advocates or the judges school kids. The entire world industry operates continuously without break but with break for its employees. Why not the court system? This adds enormous delay to the already over-delayed justice delivery system. Why not abolish vacation to courts but continue vacation to all people working in the courts, like in any other industry? Why the courts need vacation, during which the purpose for which they are created comes to naught?
More suggestions follow.
Pareto’s law is applicable to number of cases pending in courts too. Shortly put, this means that there will be several cases that may not need long times for hearing and giving justice and only a few cases needing longer time for disposal. In other words, some 5% of the pending cases only may need long time to close, another 15% may need medium time spans to close and 80% of cases may need very short times to dispose off. This is an inviolable law of distribution of anything including pending cases and delivery of justice.
That being the case, the first step is for the courts to segregate the total number of pending cases in the country as a whole, to long time (L), medium time (M) and short time (S) consuming cases. To do this, certain parameters have to be evolved and then applied to all pending cases in the country. The parameter should not include the time ( years and months ) for which the case is pending but should simply be the critical legal aspect involved – the prima facie legal maintainability- of the case. A committee of one judge or three judges, and the two advocates of the case should go into the legal merit of a case and establish the code mentioned above namely L, M, and S. The two parties involved may be present in this meeting, in addition to their advocates.
Some people may feel that this is not right but remember we are only classifying the cases as L,M and S and not delivering judgments as yet.
In a case, the party initiating the case may be innocent or the party defending it. Also the opposite may be true: the party initiating the case may be the culprit or the party defending it. The committee of 3 or 5 as suggested above should have (as all judges should have) equal respect and openness for the initiator of the case or the defendant. Such a committee will be able to come out with a decision as to whether there is a case at all to be taken up for further investigation, and which of the three categories – L, M or S- a case falls within just one sitting of this committee. If this is organized in the court room itself, the judge will be able to deliver the judgment in the very day of this hearing or at best in the very next hearing. I know many lawyers are nodding their head saying NO but the case study I am going to present at the end of this discussion will be an eye opener for everyone as to how many such cases are pending with no legal substance at all, and the suits are there only because one of the two parties get vindictive at the other. In this country it has become a practice for all people to take revenge against anyone by filing a suit against him/her. The justice delivery system in the country is misused by several people to deny justice to a party and the root cause for this again is the inordinate, non-excusable delay in the justice delivery system.
One may be surprised to know that one party, after listening to the committee, may decide not to pursue the case at all! In the least, this meeting will enable the judge to ask the vital few probing questions to be asked in subsequent hearings to establish the legality or otherwise of the case.
If the S cases are taken up first as above, there will be a rapid disposal of the current pending cases. Remember the S cases are 80% of the total cases pending.
Suggestion 9: Follow suggestion 8 for any case that is getting added anew i.e., fresh cases coming in today and any day from today in the future. This will proactively prevent pointless cases being admitted and clogging the already heavily clogged justice delivery system in the country.
Suggestion 10: There is a period specified for appealing against a judgment to the higher courts. If an appeal to the higher court is not filed within the stipulated time, there is a provision for condonment of this delay in appealing in certain deserving cases. First of all this provision implies that the justice delivery system is not particular about and has scant regard for the time taken for the delivery of justice. What on earth can delay just the filing of an appeal against a judgment in today’s world, where any additional information required can be obtained in a flippy?
This provision for appeal for condonment of delay is being increasingly used, rather misused, to delay the process of timely delivery of justice, particularly by not the aggrieved party but the party trying to get benefit or wreak a vengeance on the aggrieved party. The Supreme court has set a precedent recently by disallowing the condonment of delay even in cases where the Government departments had appealed for condonment of delay on their part, which cited the number of departments through which they have to go through the same.
There is one more associated problem with this: Condoning the delay is a soft option for all courts and judges and so most of the delays in appealing later than the due date, provide a path of least resistance for all courts and judges and the delay gets condoned. If there is any judge who can decide whether or not there is justifiable reason to condone the delay it is the judge of the court that passed the first judgment. Again the judge in the appellate court that hears the appeal for condonment of delay, thinks that his judgment does not really matter as much as it can be appealed against in the higher courts. So they condone the delay without spending time on such cases and close a case and score a point in the number of completed cases to their credit!
What is more, the judgment in the condonment of delay cases, like all others, can also be appealed to the higher courts. This adds to the number and duration of processing of each case for which one party files an appeal for condonment of delay, even in cases where the latter has no justifiable reason for delay The genuinely aggrieved party has no option, when the delay is condoned, except to appeal to the higher court for this case of delay in appeal also. This additional waiting time is completely avoidable by providing for appeal against the judgment in condonment of delay to only one court and not right up to the Supreme court as it is prevalent now.
As it stands today one can take the appeal against the judgment of condonment of delay cases, in steps to the highest court in the country namely the Supreme Court. When you take it up to Supreme court, the Supreme court permits the two advocates to argue in its first hearing, but at its discretion only. So there may not be any argument by either party even in the first hearing. But if the genuinely aggrieved party feels that it has not got justice and files a review petition in the Supreme Court, there is a provision that the Supreme Court should not call the two advocates but give a judgment without any hearing, just by reading the files of the case! This is strange as the review petition by the Supreme court is more critical than the first hearing by the Supreme Court.
If the Supreme court, in its review petition condones the delay in appealing against the judgment by the lower court, the case goes back to the lower court that delivered the first judgment and the cycle starts all over again, as though it is the first hearing of the case – after 25 years of hearing! more