The heavy backlog of cases and delays in the Indian judicial system are once again the topic of much discussion, with everything from government callousness to over-litigiousness to judicial activism being blamed for the 35 million cases pending in the courts at all levels.
There are actually two separate but related problems being spoken about: the problem of delay and the problem of high pendency.
Various factors are responsible for the problems, and in order to address them, it is essential to study the data in depth to try and identify what are their causes.
A recent survey of litigants conducted by Daksh, a civil society organization that undertakes research and activities to promote accountability and better governance in India, showed that more than 60% of the respondents believed that the delay in their own cases was due to the judge not passing orders quickly enough.
While this relates to ongoing cases, it is a reflection of the perception among a large section of the population. It may not be entirely correct on the part of the litigant to attribute all the delay to the judge since the lawyer and the other party are also part of the proceedings.
However, there is one stage where the responsibility for delay (if any) can be placed solely on the judge—delivery of judgement after arguments are complete. When a case is heard in depth and arguments are advanced by both parties, more often than not, the judge “reserves judgement”—to examine the arguments, do research and write the judgement before delivering it in an open court.
While the Code of Civil Procedure, 1908, applicable to civil courts, states that judgements should be delivered within 30 days of arguments being closed, no such time restriction is found in the context of Section 353 of the Code of Criminal Procedure, 1974, which prescribes the manner in which a judgement is to be delivered in a criminal case.
No provisions exist for the time to be taken in delivering judgements by the high courts and the Supreme Court.
The need for a time limit for delivering the judgement is not just to avoid delay, but also to prevent a miscarriage of justice.
A judge who takes too long to deliver judgements after hearing arguments may have forgotten some of the arguments or remembered them incorrectly to the detriment of the parties.
For this reason, even though no procedural law prescribes so, the Supreme Court has held in Anil Rai vs State of Bihar case that parties can file an application in the high court seeking an early judgement if it’s not delivered within three months of it being reserved. If it’s not delivered more than six months after being reserved, parties have a right to have it re-heard before a different bench of the high court.
Does the Supreme Court itself adhere to this timeline?
I looked at the judgements delivered by the Supreme Court in 2015, of which 487 contained details of the date on which the order was reserved and the date on which the judgement was delivered.
While some of the remaining judgements were dictated in open court, the others had no details of when the judgement was reserved and so haven’t been included in this study. The time taken to deliver the judgement in these 487 cases is shown in the chart above.
While judgements were delivered within 30 days in 62% of the cases, in at least 85 cases (17%), the Supreme Court failed to adhere to the informal timeline it had laid down for the high courts. In 12% of the cases, the court took more than 120 days to deliver its judgement after having reserved it. The average time taken to deliver judgements in 2015 was 55 days and the median time was 21 days.
While the median time would suggest that the Supreme Court by and large delivers judgements within a month of arguments concluding, the number of cases where the delay is long and unexplained are not insubstantial. In nine cases, the judgement was delivered more than one year after being reserved, with the maximum time taken being 566 days.
Although all the cases in which it took more than one year to deliver the judgement were civil appeals, a broader picture suggests that there is no substantial difference between civil and criminal appeals when it came to the time taken to deliver the judgements.
The difference in the average length of time taken to deliver judgements in civil appeals cases as compared to criminal appeals cases can possibly be attributed to the fact that of the 20 judgements which took the most time to be delivered, only two are criminal appeals. In a criminal appeal, the maximum time taken to deliver a judgement after having reserved it was 325 days.
What the numbers show is that while a judgement is delivered within time in a bulk of the cases, there are a significant number that are slipping through the cracks and taking up much longer than they should.
In the recent past, judgements in two cases that involved highly important questions of law were delivered more than a year after the judgement was reserved.
When Subramanian Swamy sought a direction from the court to the then prime minister, Manmohan Singh, to grant sanction to prosecute telecom minister A. Raja for corruption in the 2G spectrum case, the court took 433 days to deliver its judgement after having reserved it.
In the Naz Foundation case concerning the validity of Section 377 of the Indian Penal Code, the judgement was delivered 624 days later, or more than 20 months after being reserved.
The relatively large number of cases where the judgement is delivered more than 90 days after being reserved by the bench suggest the absence of a system to keep track of how long a case has been reserved for judgement.
From the information available on the Supreme Court website, it is not possible to determine with any accuracy how many judgements have been reserved and for how long.
A recent Right to Information application seeking details of cases that have been reserved for judgement was denied by the Supreme Court.
Ironically enough, the Supreme Court has prescribed precisely such a monitoring mechanism for high courts in the Anil Rai vs State of Bihar case to ensure that too much time doesn’t elapse before a judgement is delivered.
Given that the Supreme Court itself has slipped in ensuring the timely delivery of judgement to litigants, it is high time perhaps that the apex court adopts a system to keep track of reserved judgements in the interests of transparency and accountability to the litigating public.
With inputs from Nikhil Iyer and Aditya Rajagopal, law students who interned at the Vidhi Centre for Legal Policy, Delhi.
Alok Prasanna Kumar is a senior resident fellow at the Vidhi Centre for Legal Policy.
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