Events & Issues

New Delhi, 2 September 2021

Distant Court, Distant Justice

ONE AMONG MANY PROBLEMS

By Dr S.Saraswathi

(Former Director, ICSSR, New Delhi)

Only one Supreme Court is established in New Delhi for a country extending to 3.29 million sq.km. and a population of over 1.4 billion, which is practically inaccessible to most people  fighting for justice. Is it an “injustice” done to people, spread across the length and breadth of the  country as remarked by the senior-most judge of the Madras High Court at the time of his  retirement recently? Or an unforeseen problem and can be remedied by a bundle of judicial  reforms?

In any case, the remark echoes a common complaint of many litigants and lawyers especially from southern India wanting to approach the Supreme Court in appeal against the verdict of high courts.

Distant court, distant justice – is a strong feeling of aggrieved litigants unable to take their case  to Delhi because of prohibitive costs involved in the process. For them, it means deprivation of right to justice and equality. The judicial system depends on and works with evidences and facts and needs arguments and hearing in  person. Remote hearing is presently a remote possibility.

Regional branches of the Supreme Court, under existing conditions, seem  necessary to make the doors of justice physically accessible to the common man. The SC is meant for the entire population and not just for the people living in around New Delhi is the central point of this argument. The retiring judge suggested that the SC should reconsider its previous decision against establishing branches or the Centre should amend the Constitution to provide for regional Benches.

There are 25 High courts and three of them have jurisdiction over more than one State. The High Court of Assam in Guwahati serves Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura also besides Assam State. The Union territory of Delhi has a separate high court.

Apart from easing accessibility to the common man, more branches will lessen the burden on the SC and time taken for justice delivery. It will reduce pendency of  cases now running to lakhs in the Supreme Court. Data placed before the SC revealed that in the Allahabad High  Court, the average waiting period to get justice in a criminal appeal against conviction by a trial court is around 35 years as the disposal rate is 18% and appeals pending are over 1.83 lakh.

The workload on the Supreme Court is quite heavy as it has original, appellate, and advisory jurisdiction. It is with reference to appellate jurisdiction, the necessity for more SC branches is felt, as involvement of common men are highest in appeals from high courts in civil and criminal cases. Appeals  from any judgement, decree, or final order of a high court can be made to SC if   the concerned court certifies that the case involves a substantial question of law.

Where a high court reversed an order of trial court and awarded death sentence for an accused or where a high court has withdrawn for trial before itself any case from any subordinate court under it which had  awarded death penalty or imprisonment for not less than 10 years or merely certifies that the case is fit for appeal to Supreme Court, the appellate jurisdiction of SC is exercised.

In civil suits, disputes involving not less than 25 lakh in cash or property or issues considered by the High Court as fit for appeal to Supreme court are allowed appeal. SC’s appellate jurisdiction is very wide extending over all courts and tribunals in India except those constituted for Armed Forces. Appeal to SC has become a  routine procedure.

The apex court has also jurisdiction to call to itself any case pending in any part of India if there  was a constitutional question involved. It also has the power to entertain petitions from ordinary people who could not otherwise approach the court due to financial constraints.

The  President can consult the  Supreme Court on  any  question of law or fact that is of public importance and refer to it any dispute within its original jurisdiction. This role is also growing in recent years.

Litigations are increasing over the years with increase in laws, growing social-economic and other issues, problems arising from implementing development and welfare programmes, and growing complexities in social relations and active role of public organisations and political institutions. Citizen awareness to rights and privileges is visible. The workload on the judiciary has increased enormously and the one Supreme Court with three types of jurisdiction, original, appellate, and advisory, must be really struggling under their weight.

Low ratio of judges to population has been cited as a cause for pendency of cases.  It was said in 1998 that there were barely 10.5 judges per million population in India compared to 107 in the US. Judges-population ratio in recent years has grown as19.8 in 2018, 20.39 in 2019, and 21.03 in 2020  per million population, but still grossly inadequate. It results in enormous delay in even taking up hearing of cases causing over-crowding of under-trial prisoners in jails. Some of them  have spent in jail more time than the length of maximum prescribed punishment for the offence  alleged against them. The Law Commission, however, did not consider this ratio as scientific criterion for deciding adequacy of  judges and gave importance to the rate of disposal of cases. 

Number of case pending in various courts was reported to be over 446 lakh and is expected to cross 500 lakh by 2022. Clearing pending cases is aptly described by a lawyer as similar to “draining a bottomless pit”. The National Judicial Data Grid shows that pending cases outnumber the number of new cases filed in any year. It is worse than Covid-19 pandemic cases.  The average hearing time for listed cases on a day could be as small as 2 minutes according to  an analysis  of cases pending in 21 high courts in 2016.

Judicial reforms in recent years have been mooted many times mostly in the context of delay  and pendency.  The issue is linked with vacancy in the post of judges which is said to be four out of 10 in high courts.

Primary role of the SC is to determine substantial questions of law relating to the Constitution and matters of great general importance. But, it is invaded by appeals from other courts.   Setting  up a National Court  of Appeal  can, therefore, be reconsidered.

“We can  assert true accessibility when the person with the maximum disadvantage can still knock on the  doors of the court of justice”,  said the  CJI while speaking on modernising the   judicial infrastructure. He emphasises technological innovations in the justice delivery system which can address problems of timeand  distance  simultaneously. He said, “Modernisation of   judicial structure does not mean building more courts or filling up vacancies…An efficient judicial infrastructure  means providing  equal and  free access to justice.  This  could be realised  through a  barrier-free and  citizen-friendly  environment”.

Efficient infrastructure must include qualified manpower including adequate number of judges whether we go in for virtual hearing or more branches of  Supreme Court.---INFA

(Copyright, India News & feature Alliance)