Chief Justice of India T.S. Thakur has lobbed the ball in the government’s court, pointing out that the problem of case pendency, which denies justice to millions, owes to its reluctance to fill the benches. His reference to a recommendation from the Law Commission in 1987, which had called for increasing the number of judges fivefold, points a finger at all the governments that have held office since that time. None of them showed sufficient interest in closing the gap, while both the population and the volume of litigation have grown rapidly.
The courts generally draw public attention in extraordinary circumstances — when they rise to defend the Constitution and civil rights, or when they are criticised by the other pillars of democracy for judicial overreach or activism. Now, Justice Thakur has used the occasion of a meeting of chief ministers and chief justices of the high courts to focus, with visible anguish, on the quotidian operational challenges facing the judicial system. How could Make in India possibly work, he asked, if foreign investors are put off by the tardiness of dispute resolution? The flagship scheme provided an excellent tactical target, but the effect of pendency is most brutally felt by those without economic power. Undertrials have their right to liberty suspended for years at a time. The public, which depends on the courts for relief, hesitates to put assets like housing on the market. Indeed, poor legal protection urges Indians to be risk-averse as a matter of course, with significant economic and social implications.
Justice Thakur has drawn attention to a long-festering problem of the judicial system. However, the judiciary, too, has not given sufficient attention to the small systemic interventions that could disproportionately increase the efficiency of justice delivery. For instance, the ease with which adjournments can be secured is a well-known cause of delay in civil cases. A direction from the chief justice limiting reasonable grounds for adjournment would reduce pendency considerably. Besides, cases in busy sectors of civil law fall into repetitive patterns. Tenancy matters tend to be structurally similar, for instance, and focusing on unique factors in each case would speed up trials. The chief justice may also consider communicating with the government, which is a party in a large number of cases. Simplification of tax law, for instance, would sharply reduce the volume of litigation in the higher courts. Justice Thakur has pointed the finger in the right direction, but there is much that the judiciary itself could do to speed up its processes.