‘To no one will we sell, to no one will we deny or delay right or justice’. The promise made over 800 years ago in the Magna Carta in 1215 forms the template for justice delivery in written and unwritten constitutions of democracies around the world. It is also the mother lode for aphorisms such as ‘justice delayed is justice denied’.
This week saw the revival of the debate over the politics and deficits that detain the delivery of the promise. The stage seems set for another round of contestations between the government and the judiciary. On Tuesday, Law Minister Kiren Rijiju pointed out that the “number of pending cases is inching towards the five crore mark” and observed “It is a matter of great concern”.
Successive regimes have fervently argued that the delivery of justice is daunted by the faultlines in the administration of the judiciary. The proposed solution, the creation of the National Judicial Appointment Commission was shot down by the Supreme Court. On Wednesday, in his maiden address in Parliament Vice President Jagdeep Dhankar slammed the 2015 Supreme Court verdict that struck down the National Judicial Appointment Commission (NJAC) bill as a glaring instance of “severe compromise of parliamentary sovereignty and disregard of people’s mandate”.
It is true that one of the issues haunting disposal of cases is the gap in capacity for adjudication. And this is aggravated by the tussle between government and the judiciary on the mechanism for judicial appointments. In October this year, Justice Ramana, then the Chief Justice of India, stated that the government had cleared seven of 106 names recommended by the Supreme Court Collegium for higher judiciary.
Consider the data on vacant posts of judges across the three tiers of judiciary. As of November 2022, six of the 34 posts in the Supreme Court and one-third or 335 of 1,108 sanctioned posts for judges in High Courts are vacant. The gap is worse in lower courts where the onus for appointments rests with state governments and high courts. The government informed Parliament that of the 24,521 sanctioned posts in subordinate courts, 5,180 are vacant – a third or 1,106 of the 3,634 posts in Uttar Pradesh are not filled.
As the debate on suzerainty continues the spectre of denial on the ground is stark. There are over 4.88 crore cases pending across courts. Of these 69,598 cases pending in the Supreme Court –of which over 11,000 are pending for over 10 years. The number of cases pending in the high courts is 59, 54,550 – of which 10.37 lakh cases await disposal for over 10 years. The picture is worst in district and taluka courts where there are over 4.28 crore cases pending – of which over 20 lakh cases for more than five years.
Pendency is worsened not just by the availability of judges but more critically by systemic deficits in the administrative landscape. There are over 3.19 crore criminal cases pending in courts. In many of them, Justice Gogoi had observed in 2018, even the issue of summons has not been completed. Meanwhile, over 3.71 lakh undertrials are lodged in prisons. The disposal of cases depends on the process of investigation and the capacity of the police state machinery.
On the civil side beyond the individual and private entities, there is the reality of the litigious government. In August 2022 the government informed the Lok Sabha that ministries and departments of the Union Government are litigants in as many as 5.95 lakh cases are pending before the Supreme Court, High Courts, District Courts and Tribunals. In December 2022 as per the data put out by the Law Ministry’s Legal Information Management & Briefing System, the number of pending cases stood at 6.17 lakh. Mind you, these are just cases of the Union government as data on state governments is not collated.
The rise in the number of cases also signals the need to clean up the legislative and regulatory landscape Rishi Agarwal of Avantis Regtech who tracks regulatory compliances points out that businesses are required to comply with 1,536 laws, 69,233 compliances and 6618 filings. There are 843 laws at the Centre and the States with over 26000 compliances which carry the threat of imprisonment. Juxtapose this on the multiplicity of ministries in any one domain – water for instance is governed by six ministries, health care by multiple ministries in the state and in the union government.
There is a cost being paid by the economy for the delays. There is no shortage of literature and studies on what needs to be done. There is the capacity issue and as the Economic Survey of 2017-18 argued, pendency can be mitigated “by merely filling out the vacancies in the lower courts and in the High Courts”. There is also the question of cleaning up the legal landscape to curb the incidence of cases sprouting from between punctuations and political opportunism.
The upsurge in pending cases has long-term implications as it impacts harmony, stability and sustainability. The Constitution of India, in the Preamble, guarantees all its people justice, liberty and equality. The sequence is important. It is the promise of justice which scaffolds the guarantee of liberty and equality.
Shankkar Aiyar
Author of The Gated Republic, Aadhaar: A Biometric History of India’s 12 Digit Revolution, and Accidental India
shankkar.aiyar@gmail.com