Article

Indian Judiciary: An Analysis Asian Journal of Legal Education

5(1) 21–39
of the Cyclic Syndrome of Delay, © 2017 The West Bengal National
University of Juridical Sciences
Arrears and Pendency SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/2322005817733566
http://ale.sagepub.com

Yashomati Ghosh1

Abstract
India has been experiencing docket explosion and the problem of huge arrears of pending cases for the
past seventy years. At present there are more than 22 million cases pending in various courts across the
country. The large number of pending cases has crippled the efficient working of the judiciary and had
adversely affected the right of the citizens to timely delivery of justice. In this paper a comprehensive
analysis of the state of Indian judiciary has been made. The various factors which have attributed to
docket explosion and arrears have been discussed by looking into various government and judicial
reports, starting from the Arrears Committee Report of 1949 to the Supreme Court Report on Access
to Justice (2016). The paper further discusses the challenges and impediments faced in dealing with the
burdens of pendency and arrears, and analyses the recommendations of the various committee reports
relating to judicial reforms. The article critically analyses the various procedural, legal and infrastructural
reforms introduced in the recent past to bring about substantive judicial reforms, however these efforts
have largely been piecemeal in nature. In addition the difference of perception between the judiciary
and the government regarding the right solution has further aggravated the crisis. In this context the
harmonious functioning of the three organs of the state and honest commitment of all the important
stakeholders such as the Bar Council, the members of the legal profession and litigants holds the key
to resolve the cyclic syndrome of delay, arrears and pendency.

Introduction
In a democracy, court belongs not to the lawyers and judges but to the citizen.
—Jerome Frank

The Constitution of India, through its Preamble, has guaranteed to its citizens ‘Justice’—economic,
political and social. But even after 70 years of independence, achieving substantive justice for the vast
majority of the citizens has remained a distant dream. In the specific area of justice delivery system, India
is faced with several problems relating to large backlogs and pendency of cases. At present, there are
more than 22 million cases pending in various courts across the country. It is often acknowledged that on

1
  Associate Professor, National Law School of India University, Bengaluru, India.

Corresponding author:
Yashomati Ghosh, Associate Professor, National Law School of India University, Bengaluru, India.
E-mail: [email protected]
22 Asian Journal of Legal Education 5(1)

an average, the time length of a case from the date of filing to the final disposal crosses the life span of
the litigant; and in common folklore, it is asserted that litigations in India are handed down from one
generation to another as part of their heirloom. Under the separation of powers doctrine, the judiciary is
an integral part of the state, and adjudication of disputes is one of the core functions of the state.
Independence, fairness and competence of the judiciary are the cornerstones of the Indian legal system.
But the large number of pending cases has crippled the efficient working of the judiciary and has
adversely affected the right of the citizens to timely delivery of justice.
Right to speedy trial is an integral part of the principles of fair trial and is fundamental to the
international human rights discourse. Article 10 of the Universal Declaration of Human Rights has
recognized the right to free and fair trial as an integral part of human rights, and Article 9(3) of the
International Covenant on Civil and Political Rights has highlighted the importance of an individual to
be tried within a reasonable period of time. The Indian Supreme Court in several of its leading judgments
has highlighted the need of speedy trial. The concept of speedy trial is read into Article 21 as an essential
part of the fundamental right to life and liberty guaranteed and preserved under our Constitution.2
Speedy trial is considered as one of the essential facets of reasonable, just and fair procedure post Maneka
Gandhi decision.3
In a democracy, the administration of justice is for the benefit of the citizens, and the lawyers and
judges are important instruments in the fulfilment of that objective. Courts are deemed to be custodians
and protectors of citizen rights. In the words of Justice V. R. Krishna Iyer, ‘The true conception of
the administration of justice is that the lowly concerns of the least person is the highest consideration to
the state and the court.’4 Thus, the judiciary being an integral part of our democratic system, all the
constitutional values and implications must be imported into the judicial process. In a democratic society,
the courts play a crucial role in seeing that neither license nor absolutism becomes dominant; hence, the
various challenges faced by the judiciary need to be effectively met at the earliest. In the words of Justice
Burger,

A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three
things could destroy that confidence and do incalculable damage to society: that people come to believe that
inefficiency and delay will drain even a just judgement of its value; that people who have long been exploited
in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud
and over-reaching; that people come to believe the law—in the larger sense—cannot fulfil its primary function to
protect them and their families in their homes, at their work, and on the public streets.5

Article 14 of the Indian Constitution guarantees to all citizens ‘equality before the law and the equal
protection of the laws’, and Article 39A mandates the state to secure that the operation of the legal system
promotes justice on the basis of equal opportunity and to ensure that the same is not denied to any citizen
by reason of economic or other disabilities. The Constitution guarantees all individuals with equal rights,
but unfortunately a vast majority of our citizens are not able to enjoy the rights effectively due to lack of
ability to enforce them. From the citizen’s perspective, the enforcement of legal rights are done through

2
  Kartar Singh v. State of Punjab, 3 SCC 569 (1994).
Refer also Hussainara Khatoon (I) v. Home Secretary, State of Bihar, 1 SCC 81 (1980); Sunil Batra v. Delhi Administration (I),
4 SCC 494 (1978). 
3
  Maneka Gandhi v. Union of India, 1 SCC 248 (1978).
4
  V. R. Krishna Iyer, Democracy of Judicial Remedies, The Hindu, 7 Jan. 2003, http://www.thehindu.com/thehindu/2003/01/07/
stories/2003010700561000.htm (last visited July 26, 2016).
5
  Id.
Ghosh 23

the judicial processes, but the court procedures are very complex, costly and tardy, putting the poor
people at an extreme disadvantage. It is one of the most important duties of a welfare state to ensure that
the judicial and non-judicial dispute resolution mechanisms are equally and effectively accessible to all
its citizens for the purpose of resolution of their legal disputes and enforcement of their fundamental and
legal rights. The present backlog of cases have resulted in the dilution of the right to access timely justice
and an erosion of the rule of law values which has adversely affected the common peoples’ faith in the
justice delivery system. The emergence of a rights-based approach to development has accentuated the
need of a robust judiciary in India. In this context, it is crucial to comprehensively analyse the state of
Indian judiciary and deliberate in detail the challenges faced in dealing with the burdens of pendency and
arrears. This article discusses the recommendations of the various committee reports relating to judicial
reforms and critically analyses the various procedural, legal and infrastructural reforms introduced in the
recent past to bring about judicial reforms. The various challenges faced in providing an effective and
efficient justice delivery system, which is a necessary component for securing the citizenship rights of
the citizens, can only be resolved by the harmonious functioning of the three core organs of the state i.e.,
Legislature, Executive and the Judiciary.

Factors Attributing to Docket Explosion and Arrears

India has been experiencing docket explosion and the problem of huge arrears of pending cases for the
past 70 years. According to the recent estimates of the National Judicial Data Grid (NJDG), a total of
24,247,103 cases are pending before various courts in India, of which 7,815,594 cases are civil in nature
and 16,431,509 are criminal cases.6 It has been estimated that more than 16 per cent of the cases are
pending beyond the time frame of 5 years, of which almost 9.85 per cent are having a pendency period
beyond 10 years.7 In a rule of law-based society, it is in the well-being of the citizens and the state that
disputes are adjudicated within a reasonable period of time, so as to give certainty and definiteness to
rights and obligations. In case of inordinate delay, the sufferings of the litigants are increased manifold
due to factors such as enhanced cost of litigation, possibility of miscarriage of justice, probability of
memory fading and relief becoming infructuous. Inordinate delay in the delivery of justice often shakes
the confidence of the ordinary litigants towards the judicial system as an effective institution for grievance
redressal and grant of adequate relief. The problem of backlog of cases in India is not of recent origin nor
can it be attributed to any specific region or state. The Law Commission way back in the year 1958 had
emphasized the need to effectively deal with the problem of arrears.8 Judicial backlog is presently a
matter of concern for all the major states of the country. At the national level, almost 55.52 per cent of
cases are pending for a period of more than 2 years,9 and at the state level, it is an acute problem for most
major states such as Uttar Pradesh, Maharashtra, Gujarat, West Bengal, Karnataka, Bihar, Rajasthan,
Tamil Nadu and Kerala.10

 6
  As per the data specified on 2 Mar. 2017 at the NJDG, http://njdg.ecourts.gov.in/njdg_public/main.php (last visited Mar. 2,
2017).
A critical evaluation of the data available at the NJDG has been discussed in The State of the Indian Judiciary, DAKSH.
 7
  This data does not include the cases which are pending in the various tribunals and quasi-judicial administrative authorities.
 8
  Law Commission of India, fourteenth Report: Reform of Judicial Administration, at 64 (1958), http://lawcommissionofindia.
nic.in/1-50/Report14Vol1.pdf (last visited July 14, 2017).
 9
  NJDG, supra note 6.
10
  Id.
24 Asian Journal of Legal Education 5(1)

The issue of heavy arrears pending in the various courts of the country has been a matter of concern
since the time of independence. Several causes have been attributed as giving rise to the problem of the
arrears and backlog of cases. The Fourteenth Law Commission Report had observed that post-
independence, the adoption of the welfare Constitution was instrumental in facilitating a steady increase
in the number of cases filed. In the post-Constitution period, the three primary factors for increasing the
number of litigations were the economic and industrial development of the country, enforcement of the
fundamental rights conferred by the Constitution and expansion of the jurisdiction of the High Court
with the enactment of special laws such as Sales Tax Act, Income Tax Act and Representation of the
People Act.11 These factors along with other causes like low judge strength had contributed towards the
increase in the workload of the judiciary in the early years.12 The Satish Chandra Committee Report and
the Arrears Committee Report (1990) has comprehensively analysed the several factors which have
given rise to the problem of accumulation of arrears of cases in the Indian judiciary in such gigantic
proportions.13 The primary factors contributing to docket explosion and arrears are as follows:

  1. Litigation explosion: It was estimated that the pendency in the High Courts rose from 191,972 in
1956 to 1,546,526 in 1987.14 At present, the number of cases which are pending for more than
10 years in different courts stands at a staggering figure of 2,356,027, which clearly indicates the
gravity of the problem.15
  2. Population explosion: The increase in litigation is directly related to the population explosion in
India. According to the 15th Indian Census, the population of India stood at 1,210,193,422 in the
year 2011, second only to China.
  3. Radical change in the pattern of litigation: The welfare goals of the Indian Constitution had
brought significant changes in the scope and ambit of litigation in India. The judicial institutions
were made more accessible to the common people with the growing legal awareness and
facilitated with the rise of public interest litigations and legal aid provisions.
  4. Increase in legislative activity: The last 70 years had witnessed enacting of various legislations,
dealing with economic affairs, social welfare programmes, environmental laws, corporate affairs,
etc., which have given rise to numerous legal rights, obligations and entitlements, and consequently
caused increase in the number of litigation in society.
  5. Hasty and imperfect drafting of legislation: Lack of proper deliberation with expert bodies,
professional associations, legal experts, etc. before drafting of a legislation often gives rise to
ambiguity, and this led to spurt of litigation demanding for judicial interpretation of the contentious
clauses.
  6. Additional burden on account of election petitions: Vesting of jurisdiction to the High Courts to
deal with election-related disputes increased the number of litigation as well as pendency.
  7. Plurality and accumulation of appeals: Plurality of appeals from first appeal to second appeal to
the Division Bench of a High Court often results in accumulation of cases in the High Court.

11
  The increase in the workload of the High Courts was observed by the High Courts’ Arrears Committee, 1949, as quoted in the
fourteenth Law Commission Report.
12
  NJDG, supra note 6, Vol. 1, at 2.
13
  Government of India, Report of the Arrears Committee 1989–1990, http://dakshindia.org/wp-content/uploads/2016/08/
Malimath-89-90.pdf (last visited Mar. 2, 2017).
14
   Id., at 2.
15
   NJDG Summary Report of India as on 18 March 2017, http://njdg.ecourts.gov.in/njdg_public/main.php (last visited Mar. 18,
2017).
Ghosh 25

In addition to the appeals from the Code of Civil Procedure, there are appeals to the High Court
under special statutes, thereby adding on to the existing burden of pendency.
  8. Revisions: The revisional jurisdiction of the High Courts often increase the arrears and cause
delay in the disposal of the cases in the subordinate courts.
  9. Continuance of the ordinary original civil jurisdiction in some High Courts: The continuance of
original civil jurisdiction in some of the High Courts have added on to their burden of cases.
10. Dispensation of certified copies: The delay in obtaining the certified copy of the judgment/decree
causes lengthening of the litigation time by providing an opportunity for extension in the
limitation period for filing of appeals.
11. Indiscriminate resort to writ jurisdiction: The bulk of the cases pending before the High Courts
are writ petitions and the appeals arising from the decision of the single judges of the High Court.
There has been a tendency to make writ petitions even for trivial issues which often delays the
disposal of important cases.
12. Letters Patent Appeal: The Letters Patent Appeals provide another opportunity for prolonging
litigation by adding one more tier of appeal in the High Courts.
13. Inadequacy of judge strength: There is a need to increase the judicial strength to cope with the
increasing number of cases.
14. Delays in filling up vacancies in the High Courts: This is often attributed as the single largest
factor resulting in huge backlog of cases. Delay in appointments of judges results in loss of
judge-days and causing arrears.
15. Unsatisfactory appointment of judges: Selection of proper judges is essential in ensuring judicial
efficiency. Appointment of improper and unsatisfactory judges does not help in reducing the
number of arrears; on the contrary, it adds to the problems of the judiciary.
16. Inadequacy of staff attached to the High Courts: Lack of adequate manpower such as secretarial
staffs, peons and typists retards the efficient functioning of the courts.
17. Inadequacy of accommodation and other facilities: There is inadequate number of accommodation
and other facilities to the judicial officers appointed which often creates dissatisfaction in the
minds of the judicial officers and causes delay.
18. Failure to provide adequate forums of appeal against quasi-judicial orders.
19. Inordinate concentration of work in the hands of some members of the Bar.
20. Absenteeism and lack of punctuality among judges: Discipline among the judges is necessary to
improve the quality of the justice system. Absenteeism from courts on slightest pretext, non-
adherence to court hours and lack of punctuality result in delay and accumulation of the cases.
21. Civil revisions: Indiscriminate exercise of jurisdiction often results in delay.
22. Second appeals: Ignoring the limitations on exercise of jurisdiction and tendency to make
indiscriminate appeals prolongs the length of the case unnecessarily.
23. Long arguments and prolix judgments: Efforts should be made to reduce the length of arguments,
citation of unnecessary authorities, etc. so as to reduce the litigation time. Judges should write
reasoned decisions, but they need to avoid prolix judgments.
24. Lack of priority for disposal of old cases.
25. Classification and grouping: Failure to make proper classification and grouping of cases adds to
the problems of timely disposal of cases.
26. Granting of unnecessary adjournments: Grant of frequent and unnecessary adjournments prolongs
the length of the litigation.
27. Constitution of benches: It is necessary to constitute proper judicial benches based on the
knowledge, experience and aptitude of the judges. The assignment of cases should be based on
26 Asian Journal of Legal Education 5(1)

the knowledge and expertise of the judges which will ensure proper utilization of judge talent and
ensure better functioning of the court.
28. Commissions of inquiry: Appointment of sitting judges as commissions under the Commissions
of Inquiry Act often keeps them away from their judicial works, thereby causing further delay in
disposal of cases, and adds on to the pending workload.
29. Criminal matters: It has been found that preparation of paper books in criminal cases often causes
delay in disposal of cases. Filing of unmerited appeals should be avoided.
30. Unsatisfactory selection of government counsel: Government cases occupy the bulk of judicial
cases in the Indian courts. However, it has been generally estimated that the selection of the
government counsels is unsatisfactory, which results in unnecessary delay in disposal. The
tendency to file unnecessary appeals adds to the problems.
31. Closure of courts due to deaths, strikes and non-appearance of lawyers: The functioning of the
court is affected because of sudden closure of the courts on the grounds of death, other causes,
non-appearance of lawyers due to strikes and other factors, which results in loss of work hours.

In addition, other prominent factors resulting in high pendency are the low people-to-judge ratio resulting
in huge case burden on judges in each state and the increasing number of government litigation. The total
number of sanctioned judges in India is 21,598, of which 20,502 judges are allotted for the lower courts,
1,065 judges for the High Courts and 31 judges for the Supreme Court. However, there were huge
vacancies in the different courts with almost 3 vacancies in the Supreme Court, 437 in the various High
Courts and 4,432 vacancies in the subordinate judiciary as on 1 March 2017.16 On the issue of high
number of government litigation, it has been estimated that almost 70 per cent of the total cases pending
are involving the government and its various authorities.17 The reason for increasing government litigation
has been attributed to the numerous public services provided by the state and its various agencies.18 If the
citizens are denied access to the various monopolized public services, which are essential to the survival
of most people, the deprived citizens have the right to challenge it in a court of law.

Committees and Commissions on Arrears and Pendency

A cursory glance at the data on arrears and pendency clearly indicates towards the humongous nature of
the problem faced by the Indian justice system. The Indian judiciary enjoys functional independence, but
it is also dependent on the other organs of the state such as executive and legislative for its smooth
functioning. There has been a conscious recognition of the gravity of the problem by all the three organs
of the state, and several commissions and committees had been appointed to look into the problem and
suggest ways and means of improving the judicial system. Some of the major findings and recommendations
of these committees in the last 70 years have been briefly discussed further.

16
   Statement showing approved strength, working strength and vacancies of judges in the Supreme Court of India and the High
Courts (as on 1 Mar. 2017), http://docs.google.com/viewerng/viewer?url=http://judicialreforms.org/wp-content/uploads/2017/03/
Vacancy-01-03-2017-1.pdf&hl (last visited July 14, 2017).
17
   Department of Justice, Government Litigations, http://doj.gov.in/page/government-litigations (last visited July 14, 2017).
18
   Under Article 12 of the Constitution of India, the term ‘State’ includes the union and state governments, the Parliament and the
state legislatures, all local authorities and other authorities within the territory of India or under the control of the Indian government.
Thus, by judicial interpretations and case laws, various departments and ministries have come within the limits of Part III of the
Constitution. Similarly, the ‘local authorities’ such as municipalities, panchayats or similar authorities that have the power to make
laws and regulations and also enforce them and ‘other authorities’ exercising governmental functions as instrumentalities of the
state have been brought within the purview of writ jurisdictions under Articles 32 and 226 of the Constitution.
Ghosh 27

Report of the Rankin Committee 192419

In 1924, under the chairmanship of Justice Rankin, a civil justice committee was appointed to enquire
into the issues relating to changes and improvements necessary to bring in ‘more speedy, economical
and satisfactory despatch of the business transacted in the courts’. Delay in disposal of cases beyond a
period of two and a half years was a crucial concern and it was emphasized that ‘where the arrears are
unmanageable, improvement in methods can only palliate. It cannot cure.’ The committee had identified
insufficient judge strength in some of the High Courts as the principal cause of arrears and delay. Justice
Rankin in the committee report had candidly observed, nearly 90 years ago, that
Unless a court can start with a reasonably clean slate, improvement of methods is likely to tantalise
only. The existence of a mass arrears takes the heart out of a presiding judge. He can hardly be expected
to take a strong interest in the preliminaries, when he knows that the hearing of the evidence and the
decision will not be by him but by his successor after his transfer. So long as such arrears exist, there is
temptation to which many Presiding Officers succumb, to hold back the heavier contested suits is thus
maintained somewhere near the figure of institution, while the real difficult work is pushed into the
background.20

Report of the High Court Arrears Committee 1949 Set Up by the Central Government
under Chairmanship of Justice S. R. Das
The report highlighted that the inordinate delay in filling up the vacancies in the High Courts should be
avoided and efforts should be made to increase the judge strength in those courts where the judge strength
was not commensurate with the volume of work. Increase in the numeric strength of the subordinate
judiciary is crucial in meeting the congestion of work.

Survey Report 1967

The Government of India had conducted a survey of the work of each High Court in 1967, and it was
reported that inadequacy of judges was the main cause for delay and pendency, along with several other
factors like delay in filling up the vacancies, etc.

Report of the High Court Arrears Committee, 1972

The High Court Arrears Committee, 1972, under the chairmanship of Justice J. C. Shah, identified the
denial of necessary judge strength in the High Courts and delay in filling up of the vacancies as the
primary factors affecting the judicial functioning.

19
   Civil Justice Committee 1924–1925.
20
   Id., para 16, at 22. Quoted from Centre for Research & Planning, Supreme Court of India, Subordinate Court of India:
A Report on Access to Justice 2016, New Delhi, http://supremecourtofindia.nic.in/Subordinate%20Court%20of%20India.pdf
(last visited July 14, 2017).
28 Asian Journal of Legal Education 5(1)

Arrears Committee
At the Chief Justices’ Conference held in New Delhi, 1987, the primary focus of deliberation was the
high arrears of cases in the High Courts and the subordinate courts. During the course of the conference,
several factors were highlighted as causing delay in the disposal of cases such as lack of discipline
among the Indian judges, competency of the judges, amendment of the procedural laws, classification
and clubbing of cases, constitution of Conciliation Courts, filling up of the judicial vacancies and increase
in judicial strength. Of the several factors, delay in judicial appointments and the paucity of presiding
judges were considered to be primarily responsible for the arrears and backlogs. Based on the recom-
mendations of the conference, a committee of chief justices was suggested to be appointed to examine in
detail the factors causing delay in disposal of cases. The Government of India in 1989 appointed the
Arrears Committee consisting of Chief Justices Shri V. S. Malimath, P. D. Desai and P. C. Jain to study
the problem of arrears in different courts and look into the factors resulting in high pendency and accu-
mulation of arrears of cases in the various courts of the country.21 The Arrears Committee (1990) headed
by Justice V. S. Malimath in its report had made major recommendations to comprehensively deal with
the problems of accumulation of arrears of cases in the various courts of the country.22 The committee
was of the opinion that the arrears can be substantially brought down with better management, comput-
erization of court system, increased settlements by Lok Adalats, the effective use of provisions of the
Civil Procedure Code with all its necessary amendments and the cooperation of the lawyers and the court
staff. It had observed that ‘the failure on the part of the executive to produce adequate numbers of
competent judges from time to time has substantially contributed to the mounting arrears’. It had also
emphasized that the competence of the judges in terms of quality and quantity of disposals should be
regularly assessed by the superior court judges and reputed senior advocates. The committee suggested
for procedural and process reforms as well as court and case management. It highlighted the need to
simplify and reduce the appeal processes and also emphasized the need to re-look into the issue of origi-
nal jurisdiction of the Chartered High Courts. It further recommended that the Chief Justice of India
should be entrusted with the power to determine the judge strength required for each High Court, in
consultation with the Chief Justice of the High Court, and recommend the same to the President to
appoint the requisite number of judges. It suggested the inclusion of perspective planning in the judiciary
so as to determine the judge strength based on requirement in the foreseeable future. Other recommenda-
tions included infrastructure and manpower improvement, punctuality among judges, prevention of strikes,
avoid loss of work hours, etc. The need to provide alternative machinery for redressal of grievances was
specifically emphasized in order to reduce the burden of the courts in avoiding cases of trifling nature.

Law Commission of India

The Law Commission of India has been the primary body which has conducted several studies on the
various aspects of the justice delivery system in India.23 Law Commission in its several reports have
recommended for reforming legislation and adoption of reformative measures in various judicial institu-
tions for the purpose of maximizing justice in society and promoting good governance under the Rule of

21
   The Judiciary, in Report of the National Commission to Review the Working of the Constitution 1, http://lawmin.nic.in/
ncrwc/finalreport/v1ch7.htm (last visited July 28, 2016).
22
   Government of India, supra note 13.
23
   The Law Commission of India is the primary organization which conducts studies and research on various aspects of legal
reforms.
Ghosh 29

Law.24 Speaking on the importance of justice reforms, it had observed that in an organized society, it is
in the interest of the citizens as well as the state that the disputes which go to the law courts for adjudica-
tion should be decided within a reasonable time, to give certainty and definiteness to rights and obliga-
tions.25 It is the obligation of the state to make justice simple, speedy, cheap, effective and substantial.26
Some of the crucial Law Commission Reports dealing with justice delivery system are as follows:
Fourteenth Law Commission Report on the Reform of Judicial Administration (1958)27
The commission discussed the overall problem of the judiciary. The subject of the report was ‘Reform of
the Judicial Administration’, and it dealt with various issues relating to the administration of justice in
two volumes. Volume I dealt with civil matters from the lower courts to the Supreme Court, including
writ jurisdiction. It dealt with every aspect of law and legal proceedings of judicial system. It dealt with
High Courts, Supreme Court, adequacy of judicial strength, subordinate judiciary, supervision and con-
trol of subordinate courts, delays in civil proceedings, jurisdiction of civil courts, courts of small causes,
trial of suits, civil appeal, civil appellate procedure, civil revision, execution of decrees, written argu-
ment, suits against government, costs, courts fee, insolvency, law of evidence, legal education, the bar,
legal aid, law reports and court language. The volume dealt with the subject matter of overall judicial
reform in civil matters and its judicial administration. Volume II similarly discussed the criminal justice
administration. It dealt with writs, administrative bodies, law reform and legislations, organization of
criminal courts, investigation by the police, prosecuting agency, director of public prosecutions, delay in
criminal trials and enquiries, committal proceedings, criminal appeals, criminal revision and inherent
powers, administration of criminal justice, separation of judicial and executive functions, trial by jury
and state-wise studies of the criminal justice system.
The primary focus of the report was the working of the entire system of administration of justice,
scope and operation of the various courts, effects of substantive and procedural laws on litigation, elimi-
nation of unnecessary litigation along with fast disposal of cases and making litigation less expensive
and more accessible to all. On the crucial issue of making justice ‘simple, speedy, cheap, effective and
substantial’, the commission highlighted the need to overhaul the system of administration of justice.
It observed that ‘the growing accumulation of arrears in the various High Courts and subordinate courts
had created a situation which necessitated a careful examination of the problem of the proper functioning
of the machinery of the courts’.28 Recognizing the need to increase the judge strength post independence
due to the increase in workload, the commission had made the crucial recommendation that it should be
a convention, that if the Chief Justice of a state makes a request for the appointment of additional Judges
and if the need for such additional Judges is accepted by the Chief Justice of India, the Chief Justice’s
request should be acceded to.29
Some of the major recommendations of the commission were as follows:

1. Post-independence enormous increase of work for the courts necessitates the need to give more
attention to judicial administration
2. Need for creation of an independent Ministry of Law and Justice

24
   The Law Commission of India, Ministry of Law and Justice, Government of India, http://lawcommissionofindia.nic.in/
(last visited July 14, 2017).
25
   NJDG, supra note 6, Vol. 1, at 129.
26
   Resolution moved in the Lok Sabha on 19 November 1954 for the constitution of a Law Commission.
27
   Law Commission of India, supra note 8.
28
   Id., Vol. 1, at 2.
29
   Id.
30 Asian Journal of Legal Education 5(1)

3. Adequate administrative facilities for the Justice department

4. Increase in judicial strength
5. High Courts should be empowered to create additional courts whenever it is deemed necessary
without reference to the state governments.
Seventy-seventh Report on ‘Delay and Arrears in Trial Courts’ (1978) and Seventy-ninth Report on Delay and
Arrears in High Courts and Other Appellate Courts (1979)30
The reports dealt with both civil and criminal matters. They candidly observed that the delay in the civil
or criminal matters had decreased confidence among the general public about the judicial system. It was
emphasized that civil cases should be treated as lapsed if the matter was not disposed within one year
from the date of registration, whereas a criminal matter should be disposed within six months and in the
case of sessions trial, it should not go beyond one year. It was also suggested to timely fill up vacancies,
appoint additional and ad hoc judges and increase overall judicial strength.
Some of recommendations are as follows:

1. Improvement of judicial system to meet modern requirements of society

2. Time for scrutiny of the cases should not take more than one week
3. Summons and notices should be attached with the plaint at the stage of filing, without stating the
filing date
4. Procedural reforms in civil and criminal case proceedings.

Hundredth Report on Litigation by and against Government: Some Recommendations for Reform (1984)31
The report dealt with the issue of civil cases which are pending by or against the government. It dealt
with the importance and relevance of Section 80 of the Code of Civil Procedure. The object of the provi-
sion is to give an intimation to the government about the intended litigation so that the government may
consider the legal position and redress the wrong done, without recourse to the court. The report also
proposed for constitution of a ‘Litigation Ombudsman’ for central government and state governments.
Under the scheme, if a person intends to sue the government by writ proceeding, he/she would be
required to approach the ombudsman first and seek for appropriate relief by stating his/her grievance.
The ombudsman office will thereafter examine the matter, inform the applicant about its recommenda-
tions and send a copy of it to the appropriate ministry or department. The commission further recom-
mended for limiting the power of the government to take action against individuals by recommending
that the limitation period of 30 years provided for taking actions against individuals by the government
under Section 112 of the Limitation Act should be amended to make it 3 years, similar to the period
provided to individuals. The commission suggested that the limitation period should be uniform for both
government and individuals.

30
   Seventy-seventh Report on Delay and Arrears in Trial Courts (1978), http://lawcommissionofindia.nic.in/51-100/Report77.
pdf (last visited July 14, 2017); seventy-ninth Report on Delay and Arrears in High Courts and Other Appellate Courts (1979),
http://lawcommissionofindia.nic.in/51-100/Report79.pdf (last visited July 14, 2017).
31
   Hundredth Report on Litigation by and against Government: Some Recommendations for Reform (1984), http://
lawcommissionofindia.nic.in/51-100/Report100.pdf (last visited July 14, 2017).
Ghosh 31

One Hundred Twenty-fourth Report on the High Court Arrears: A Fresh Look (1988)32
The report dealt with the issue of pending and arrears of cases in the High Court. It firstly suggested that
the government should adopt and implement earlier Law Commission reports on the same issue. It iden-
tified insufficient number of judges in the High Court as a primary cause for delay and also discussed
why the best possible minds in the legal profession were not inclined to join as a High Court judge.
In addition, delay by the government in the process of appointment further adds on to the arrears.
The commission recommended that the National Judicial Service Commission should be set up for fill-
ing existing vacancy in the High Courts and the Supreme Court. The second part of the recommendation
was related to the administration of the case management system along with the computerization of the
High Courts. The report also recommended for equipping the High Courts with modern technology for
their smooth functioning, communication, registry system and documentation. The third part of the
recommendation suggested for abolition of original jurisdiction of High Courts and that jurisdiction
should be given to district courts under certain Acts such as Indian Divorce Act, Parsi Marriage and
Divorce Act, Patent and Designs Act, Succession Act, Indian Lunacy Act, Guardianship Act and Company
Act. It was further recommended that the appellate jurisdiction of district courts should be increased.
One Hundred Twenty-sixth Report on Government and Public Sector Undertaking Litigation
Policy and Strategies (1988)33
The report in its introduction states the necessity of the public sector undertakings and their goals, and
the reasons for government to establish corporations and public sector undertakings. The aim of the
government was to ensure overall development of the changing society and fulfil the needs of the society.
The commission asserted that in the absence of social auditing of departments and public undertakings,
these bodies preferred appeals if decision went against them from lower courts to the apex court at the
expense of public fund. The commission held that the lack of accountability from the Public Account
Committee of Parliament or the Parliament in general had also contributed towards increase in ligation
due to unlimited power. The report specifically stated that government and public sector undertakings are
the biggest litigant.
Some of the recommendations are as follows:

1. Government of India and the state governments should direct all public sector undertakings for
conducting mandatory arbitration. Government should set up arbitration panel.
2. Public sector undertakings should constitute grievance redressal cell, and its decision should be
binding on the parties.
3. Government is a class itself and biggest litigant in this country. It should be made mandatory for
concerned officers to reply in person within two week after receiving notice. He/she will send
notice to the person for referring the matter for arbitration, if he/she thinks that the matter should
be decided by arbitration.
4. Creation of a federal legal cell, state legal cell and public undertaking legal cell for proper
management of the litigation.

32
   One Hundred Twenty-fourth Report on The High Court Arrears—A Fresh Look (1988), http://lawcommissionofindia.nic.
in/101-169/Report124.pdf (last visited July 14, 2017).
33
   One Hundred Twenty-sixth Report on Government and Public Sector Undertaking Litigation Policy and Strategies (1988),
http://lawcommissionofindia.nic.in/101-169/Report126.pdf (last visited July 14, 2017).
32 Asian Journal of Legal Education 5(1)

Two Hundred Thirtieth Report on Reforms in the Judiciary: Some Suggestions (2009)34
The report made recommendations for judicial reforms in the High Courts. It gave recommendations on
selection and appointment of High Court judges, age of retirement, increase in number of judges and
creation of new benches, number of working days and vacations, work culture, etc. It also dealt with
other issues such as corruption, access to justice and ethics. It had adopted several recommendations
from Justice Ganguly’s article ‘Judicial Reforms’ published in Halsbury’s Law Monthly of November
2008. Some of the recommendations are as follows:

1. There must be full utilization of the court working hours. The judges must be punctual and law-
yers must not be asking for adjournments, unless it is absolutely necessary. Grant of adjournment
must be guided strictly by the provisions of Order 17 of the Civil Procedure Code.
2. Many cases are filed on similar points and one judgment can decide a large number of cases.
Such cases should be clubbed with the help of technology and used to dispose other such cases
on a priority basis; this will substantially reduce the arrears. Similarly, old cases, many of which
have become infructuous, can be separated and listed for hearing and their disposal normally will
not take much time. Same is true for many interlocutory applications filed even after the main
cases are disposed of. Such cases can be traced with the help of technology and disposed of very
quickly.
3. Judges must deliver judgments within a reasonable time and in that matter, the guidelines given
by the apex court in the case of Anil Rai v. State of Bihar35 must be scrupulously observed, both
in civil and criminal cases.
Two Hundred Forty-fifth Report on Arrears and Backlog: Creating Additional Judicial (Wo)manpower (2014)36
The report analysed the issue of increasing the judicial strength and discussed the various mechanisms
for the purpose of calculating the required number of judges. The feasibility of determining the number
of judges on the basis of population ratio or on the basis of time consumed for disposal of cases, etc. was
discussed. It looked into issues such as ‘deliver timely justice’, ‘backlog of cases’ and current ‘judge
strength’ which are considered to be great barriers in justice delivery system.
Some of the recommendations are as follows:

1. Rate of disposal method and formulae to be followed for calculating adequate judge strength for
subordinate courts, instead of judge–population or judge–institution ratio, ideal case load method
or the time-based method.
2. Increasing judge strength in order to ensure timely justice and facilitate access to justice for all
sections of society.
3. The age of retirement of subordinate judges should be raised to 62 years. The benefit of increase
in the retirement age should be made available to judicial officers in terms of the directions of the
Supreme Court in All India Judges’ Association v. Union of India.37

34
   Two Hundred Thirtieth Report on Reforms in the Judiciary: Some Suggestions (2009), http://lawcommissionofindia.nic.in/
reports/report230.pdf (last visited July 14, 2017).
35
   Anil Rai v. State of Bihar, 7 SCC 318 (2001).
36
   Two Hundred Forty-fifth Report on Arrears and Backlog: Creating Additional Judicial (wo)manpower (2014), http://
lawcommissionofindia.nic.in/reports/Report245.pdf (last visited July 14, 2017).
37
   All India Judges’ Association v. Union of India, 4 SCC 247 (2002).
Ghosh 33

4. Creation of special courts for traffic/police challan so that they can reduce the case load of the
regular courts. In addition, facilities for online payment of fines as well as the payment of fines
at designated counters in the court complex should be made.
5. Need for staff and infrastructure improvement. Periodic judicial needs assessment should be held
to monitor the rate of institution and disposal of cases and revise the judge strength periodically.
Meaningful judicial reform is necessary for proper functioning of the judicial system.

A study of the various reports clearly indicates the concern about the problem of delay and arrears in the
judiciary have been predominant in the minds of the law makers and the members of the judicial com-
munity. An in-depth analysis of the various suggestions to resolve the crisis in the administration of
justice broadly advocates for three types of changes which are as follows: First, structural changes in the
judicial system by building infrastructure, appointing appropriate number of judges and filling up the
vacancies in the Supreme Court, High Courts and subordinate courts. Second, type of suggestion is to
bring changes in to the existing laws by suitable amendments, repeal or enactment. Third, suggestion
involves changes in government policy. There is a need for government commitment towards providing
speedy justice to all needy citizens and clearing the backlog of cases. Based on these recommendations,
in the course of recent years, several remedial measures have been introduced and adopted to deal with
the problems and meet the challenges.

Efforts to Improve the Administration of Justice

In recent years, the government has made serious efforts to reduce pendency in the court. The Vision
Statement adopted in 2009 by the central government at the National Consultation for Strengthening
the Judiciary toward Reducing Pendency and Delays reflects the government’s commitment towards
providing speedy delivery of justice. The primary focus of the Vision Statement was to increase access
by reducing delay and arrears, and enhancing accountability through structural changes and setting
performance standards. In order to meet these challenges, an action plan was formulated. The core
points for judicial reforms in the action plan are as follows:

1. Creation of National Arrears Grid/identification of arrear

2. Identification of bottlenecks in crisis area
3. Tackling the bottleneck areas
4. Adoption of innovative measures for expeditious case disposal
5. Focus on selection, training and performance assessment of judicial personnel and court manage-
ment executive
6. Efficient utilization of judicial system and existing infrastructure through effective manning,
effective planning and timely management by increasing the use of technology and management
methods
7. Uncluttering the system: Removing dead weeds and preventing their re-growth
8. Procedural changes
9. Management and administration

In accordance with the objectives of the Vision Statement, the central government has made efforts to
implement the action plan so as to ensure effective, accessible and timely justice.
34 Asian Journal of Legal Education 5(1)

Structural Changes in the Judiciary and Strengthening of the Courts

The Indian judiciary has faced the problem of inadequate number of judges for a very long time.
In recent years, efforts have been made to fill up the vacancies in a timely manner and also to increase
the number of judges in the Supreme Court, High Courts and subordinate courts. In the last three years
until May 2017, 17 judges in the Supreme Court and 232 judges in the High Courts were appointed, of
which 126 fresh appointments were made in the High Courts.38 The sanctioned strength of the High
Court judges had been increased from 906 in May 2014 to 1,079 judges in May 2017, and the appoint-
ments of these additional judges have already been undertaken. In the higher judiciary, 224 additional
judges were made permanent.39 In the subordinate courts, the sanctioned strength of judicial officers had
been increased by 2,770, raising the strength to 22,288 judges in the year 2016. The present working
strength has increased to 16,413.40
The development of infrastructure facilities for the judiciary is being facilitated by the Department of
Justice. On account of concerted efforts by the state and central governments, the availability of judicial
infrastructure for subordinate courts has increased considerably in the recent past. Under Centrally
Sponsored Schemes, about `22.4973 billion were released for development of infrastructure facilities for
subordinate courts.41 There were 17,300 court halls available and 2,986 were under construction in the
year 2016. In addition, there were 13,201 residential units available for judges and 1,811 were under
construction in 2016.42 The allocation to the states and union territories for increasing infrastructure
facilities for judiciary had been increased from `5.6299 billion to `6 billion.43
The Eleventh Finance Commission recommended a scheme for creation of 1,734 fast-track courts
(FTCs) in the country for disposal of long-pending sessions and other cases. The Ministry of Finance
sanctioned an amount of `5.0290 billion as ‘special problem and upgradation grant’ for judicial admin-
istration. The Ministry of Finance released funds directly to the state governments under the scheme of
FTCs. It is the primary responsibility of the state governments to establish these courts in consultation
with the concerned High Courts. Initially, the scheme was for a period of five years, but the Supreme
Court, which is monitoring the functioning of FTCs through the case of Brij Mohan Lal v. UOI & Ors,44
observed that the scheme of FTCs should not be disbanded all of a sudden and in its order dated
31 March 2005 directed the Union of India to continue the FTCs.45

Digitization of Courts
The central government is implementing the eCourts Project in a mission mode since 2007. The eCourts
Mission Mode Project envisages enhanced ICT enablement of a court through universal computerization,

38
   Department of Justice, Justice for All—Three Year’s Achievements, Government of India, http://doj.gov.in/sites/default/
files/Justice%20for%20All_High.pdf (last visited July 14, 2017).
39
   Id.
40
   Id.
41
   Initiatives Taken by the Ministry of Law and Justice during the Two Years of the Present Government, http://lawmin.nic.in/
la/2year-achi.pdf (last visited July 28, 2016).
42
   Id.
43
   Id.
44
   Brij Mohan Lal v. UOI & Ors, 6 SCC 502 (2012).
45
   Department of Justice, Brief Note on the Scheme of Fast Track Courts, http://doj.gov.in/other-programmes/fast-track-courts
(last visited July 28, 2016).
Ghosh 35

use of cloud computing, digitization of case records and enhanced availability of e-services through
e-filing, e-payment gateways and mobile payments. The project aimed at providing necessary hardware
and software applications to enable the courts to deliver e-services, and to enable the judiciary to monitor
and manage the functioning of courts. The courts are envisaged to provide a host of e-services such as
case filing, certified copies of orders and judgments and case status to litigants and public at large through
the eCourts portal.46 The number of computerized subordinate courts has reached 16,089.47 Efforts are
being made to introduce digital payments in the courts. In its effort to become paperless, Supreme Court
has started digital filing of cases from May 2017. In the last two years, the eCourts Project has received
`5.68 billion for implementation of its programmes. Some of the citizen-centric initiatives include
sending of auto-generated SMSs to lawyers, litigants and judges, online access of orders and video-
conferencing facility.
Legislative Amendments
Delays in the trial of cases are often due to the complicated procedures involved in courts. There may be
delays in the service of summons and notices, parties may seek frequent adjournments, or a number of
frivolous and miscellaneous applications may be filed before the courts. These procedures often compli-
cate the trial process, causing delays and inconvenience to litigants. To overcome these hurdles, the
procedural laws governing both criminal and civil matters have been amended from time to time to
introduce necessary reforms.
Amendments in Code of Criminal Procedure 1973 (CrPC)
The CrPC has been amended several times in recent years to enable the criminal courts to expeditiously
dispose of the cases pending before them. One important amendment is relating to Section 164 of CrPC
relating to confession which enables police officers to record confessions by electronic means. Similarly,
a proviso has been added to Section 275(1) allowing the evidence of a witness to be recorded by elec-
tronic means through audio-video recording, in the presence of the advocate representing the accused.
Section 206 has empowered magistrates to take cognizance in a petty offence to issue special summons
to the accused, giving him/her options to plead guilty and pay the specified fine without appearing before
the court. The scope of summary trials has been increased under Section 260 in the matter of theft and
other property-related offences by increasing the value of the covered property to include properties of
up to `2,000. A new chapter has been inserted in CrPC–Chapter XXIA (Section 265 A to 265L) on plea
bargaining. It has become possible for an accused to voluntarily make an application for plea bargaining
in certain types of criminal cases. Plea bargaining is applicable to offences other than those for which the
punishment of death, imprisonment for life or imprisonment for over seven years has been provided
under the law.
In order to expedite the court proceedings, Section 309 of CrPC has imposed limits on the power of
the court to adjourn proceedings. The provision mandates for day-to-day hearing of the cases and
provides that trials under Sections 376 and 376A or 376D of IPC must be completed within two months
after filing of the charge sheet. Under Section 377, the state government must direct an appeal against
the inadequacy of sentence passed by a magistrate to the court of sessions. The state government can
only appeal to the High Court in cases where the sentence has been passed by a court other than the
magistrate. Section 436A provides that the undertrial prisoners who have spent half of the maximum

   eCourt Services, http://services.ecourts.gov.in/ecourtindia_v5/ (last visited July 28, 2016).

46

   eCourt Project Status Report, http://doj.gov.in/sites/default/files/Status-of-eCourts-Project-as-on-1.03.16.pdf (last visited July

47

28, 2016).
36 Asian Journal of Legal Education 5(1)

period of imprisonment shall be entitled to be released by the court on their personal bond with or with-
out sureties.
Amendments in Civil Procedure Code, 1908 (CPC)
Section 35B of the CPC entitles the courts that on any date fixed for hearing of a suit, if a party fails to
take the step which he/she was required to take or obtain an adjournment for taking such step on the next
date, the court may make an order for the payment of reasonable costs to the opposite party in respect of
expenses incurred by him/her for attending the court on that date. Further, Section 89 requires courts to
refer matters where there exist elements of a settlement to any of the identified alternate dispute resolu-
tion mechanisms, namely (a) arbitration, (b) conciliation, (c) judicial settlement including settlement
through Lok Adalat or (d) mediation. In Salem Advocate Bar Association case,48 it was observed that

[K]eeping in mind the law’s delays and the limited number of judges which are available, it has become
imperative that resort should be had to alternative dispute mechanism with a view to bringing to an end litigation
between the parties at an early date.

The court can direct service of summons to the defendant through speed post, courier services approved
by the High Court or by any other means of transmission as provided in the rules made by the High
Court, including fax and electronic mail. Such modes of delivery can also be used in cases where the
defendant resides outside the jurisdiction of the court. Under Order V, Rule 9-A, the court may allow the
plaintiff to serve the summons to the defendant himself/herself. An amendment was made in Order VIII,
Rule 1 requiring the defendant to file the written statement within 30 days from the date of service of
summons and allowing the court to extend this period until 90 days, for reasons to be recorded in writing.
Where on the day fixed for hearing, it is found that service of summons on the defendant has not been
served on account of the plaintiff’s failure to file the process fee or pay court fee or any other reason
attributable to the plaintiff, the court may dismiss the suit.

Repeal of Obsolete and Redundant Laws

In order to make the legal process simpler for a common citizen, it is necessary to bring clarity in the
laws applicable. Many legislations with the passage of time have become redundant and obsolete, and to
bring in clarity and certainty, these legislations need to be repealed. In recent years, almost 1,200 legisla-
tions have been repealed by the Parliament and another 415 are in the process of repeal.49

National Litigation Policy (NLP)

The necessity of framing an NLP was recognized in the ‘National Consultation for Strengthening the
Judiciary towards Pendency and Delays’. In the consultation, it was recognized that the government is
the biggest litigant; hence, conscious efforts are required to be made to reduce the number of government
litigations. The Ministry of Law and Justice proposed the formulation of an NLP to ensure the practice
of responsible litigation by the central government. The state governments were also encouraged to
frame their state litigation policy. In 2010, the Department of Legal Affairs framed the NLP and launched

48
   Salem Bar Association v. Union of India, 1 SCC 49 (2003).
49
   All India Judges’ Association v. Union of India, supra note 37.
Ghosh 37

it on 23 June 2010 which recognized government as the biggest litigant in the courts and tribunals.50
The policy aim was to make government an efficient and responsible litigant by cutting down on
unnecessary and vexatious litigations by government departments. Conscious efforts are required to be
made by government departments to reduce repeated making of appeals. At present, a new NLP is being
drafted and is likely to be implemented soon.

Case Flow Management Rules

On the recommendations of the Supreme Court in Salem Bar Association v. Union of India,51 a commit-
tee was appointed to study the application of a case flow management system in India, and accordingly
a draft rule known as the ‘Case Flow Management Rules for High Courts and Subordinate Courts’
was prepared.52 Similar recommendations were made in the policy document on ‘National Mission for
Delivery of Justice and Legal Reform’, a blueprint for judicial reforms, Strategic Initiatives 2009–201253
and Justice A. M. Khanwilkar Committee on Case Management System.54 On the basis of all the above
recommendations, almost 21 state judiciaries had adopted the concept of case flow management and
framed their own rules for ensuring timely justice since 2005. But in spite of adoption of the case flow
management rules, there is severe lacunae in the actual application of the same, and hence in the Chief
Justices’ Conference, 2016, a resolution was made towards strengthening case flow management rules
for the purpose of reducing arrears and ensuring speedy trial by all the High Courts.55

Conclusion
A study of the various reports and the remedial mechanisms clearly indicates that inadequacy of judge
strength, delay in filling up of vacancies and unsatisfactory appointment of judges are the core factors
contributing towards the accumulation of arrears. The majority of the problems faced by the judiciary
giving rise to large pendency and arrears have been constant for the past 70 years. In spite of the various
statutory and administrative reforms, the judicial crisis has not been abated. On the contrary, with the rise
of citizen consciousness, the problem of arrears and delay have further intensified in recent years.
A continuous bone of contention in resolving the crisis is the difference of perception between the

50
   Department of Justice, Status Note on National Litigation Policy, http://lawmin.nic.in/la/status%20note%20on%20nlp.pdf
(last visited July 28, 2016).
51
   Salem Bar Association v. Union of India, (I) SCC 49, AIR 2003 SC 189 (2003).
In 2011, Supreme Court in the case of Rameshwari Devi v. Nirmala Devi laid down major guidelines for management of cases in
civil proceedings.
52
   Consultation Paper on Case Management, http://lawcommissionofindia.nic.in/adr_conf/casemgmt%20draft%20rules.pdf (last
visited Sept. 25, 2017).
53
   National Mission for Delivery of Justice and Legal Reform, a blueprint for judicial reforms, Strategic Initiatives 2009–2012,
http://lawmin.nic.in/doj/justice/National_Legal_Mission-7NOV2009.pdf (last visited Sept. 25, 2017).
54
   In 2012, towards implementation of the National Court Management Systems (NCMS) under the auspices of the Supreme
Court, four sub-committees were constituted to look into the specific issues of (a) Court Development Planning System, (b) Case
Management System, (c) National Framework for Court Excellence and (d) Human Resource Development Strategy.
55
   Resolutions adopted in the Chief Justices’ Conference, 2016, http://supremecourtofindia.nic.in/pdf/cir/2016-05-06_1462510021.
pdf (last visited Nov. 1, 2017).
38 Asian Journal of Legal Education 5(1)

judiciary and the executive regarding the measures of solution. Way back in 1958, the Law Commission
had observed that

It appears that the persons handling the proposal in the Ministry have little or no knowledge or experience of
courts and do not appear to be aware even of the distinction between civil revision petitions, civil miscellaneous
petitions, first appeals or writ applications in the matter or the duration of the hearing.56

Speaking on the delay in filling vacancies which have been responsible considerably for the accumula-
tion of arrears, the Fourteenth Law Commission Report observed that

It used to be the practice in the past to select persons appointed to fill vacancies well ahead of the expected
vacancy, so that, the successor would take his seat immediately on the retirement of his predecessor. Of late,
however, vacancies have remained unfilled for months.57

In the Chief Justices’ Conference held in New Delhi, 1987, it was highlighted that ‘whenever there is a
suggestion for more Judges for the subordinate Judiciary, the State Government takes years to sanction
the post. The arrears go on mounting and the judiciary is not able to convince the State Government or
the Central Government about the urgency.’58
Recently, the Supreme Court in Imtiyaz Ahmad v. State of UP59 identified the low judicial strength as
the ‘root cause’ of the problem. In the study conducted by the Supreme Court Centre for Research and
Planning titled ‘Subordinate Courts of India: A Report on Access to Justice 2016’, it was asserted that
‘irrespective of the method employed for determining the existing strength of Judges in the lower
judiciary is wholly inadequate for the kind of workload that is constantly flowing in for disposal by the
Courts’.60
On the contrary, the S. R. Das Committee Report in 1949 had observed that

The necessity of obtaining the consent of the Executive for the creation of Additional Judgeships does not cause
any appreciable delay…. But it is no use creating Additional Judgeships if no officers are available for filling
them by. The real difficulty is shortage of personnel and the Court finds it useless to recommend the creation of
Additional Judgeships, as it knows perfectly well that no officers can be found to preside over additional courts.61

Similar thoughts were expressed in the Tenth meeting of Advisory Council for Justice Delivery and
Legal Reforms (2016), wherein it was categorically identified that filling up of 5,000 vacancies of
judicial officers in the district and subordinate courts is more crucially a matter of grave concern than the
proposal to increase the manpower strength for the subordinate judiciary.62 The matter relating to filling
up of vacancies squarely falls within the purview of the High Courts. Central government and state
governments have very little role to play in this regard. It was further noted that the High Courts need to

56
   NJDG, supra note 6, Vol. 1, at 66.
57
   Id.
58
   Government of India, supra note 13, at 4.
59
   Imtiyaz Ahmad v. State of UP, 3 SCC 658 (2017).
60
   Centre for Research & Planning, supra note 20.
61
   NJDG, supra note 6, Vol. 1, at 155–58.
62 
  Minutes of Tenth Meeting of Advisory Council of the National Mission for Justice Delivery and Legal Reforms held on
18 Oct. 2016, Department of Justice.
39 Asian Journal of Legal Education 5(1)

evolve a suitable mechanism to see that the existing vacancies are filled up on priority basis before a
fresh demand is made for creation of additional posts for the subordinate courts.
In the midst of this controversy, it is necessary to realize that Indian legal system not only faces the
problem of docket explosion but also the more challenging issue of docket inclusion. A significantly
large number of the population have been excluded from justice because of their lack of awareness,
knowledge and resources. The Indian Constitution provides to all its citizens the Constitutional right to
access to justice, but in reality, only a few privileged have true and real access to the justice delivery
institutions. In this context, it is important for all the three organs to come together and work towards
finding a harmonious and sustainable solution to the challenges faced in the justice delivery system.
It is equally important for all the other stakeholders such as the Bar Council, the members of the
legal profession, litigants and witnesses to ensure that the there is no loss of man-days and wastage
of productive judicial time by acts such as strikes, boycotts, absence of witnesses and seeking of
adjournments. Adopting a right attitude holds the key to resolving the judicial crisis, and the poignant
observation of the Arrears Committee should be a constant reminder about the true state responsibility in
the delivery of justice.

It is often not realized how important is the function of the judiciary and how essential it is to the maintenance
of democratic way of life, that the State through its judicial wing should be able to dispense speedy justice. The
common man has still confidence in our judiciary, but that confidence is being shaken by the undisputed fact
that cases are mounting up after they are filed and are not disposed of for years together. The multifarious and
multi-dimensional causes leading to accumulation of cases could be remedied by any single measure or all at
once. The situation has been allowed to develop primarily on account of total apathy and lack of will on the part
of all concerned. It is high time that urgent attention is paid to the resolution of the problem by taking appropriate
remedial measures before the situation deteriorates beyond repair and the system collapses under its weight.
We must act and act now; tomorrow will be too late.63

Acknowledgements
The article was developed in the course of research study on ‘Impact of Karnataka State Litigation Policy and the
Karnataka Sakala Services Act, 2011 in Reducing Government Litigation in the State of Karnataka’ sponsored by
Ministry of Law and Justice, Government of India. This is to acknowledge the research assistance provided by Shri
Shailendra Kumar, Research Associate, National Law School of India University.

63
   Government of India, supra note 13, at 4.