Last year a report revealed NCLT courts' time to resolution at 643 days (nearly 21 months) as opposed to the 270-day deadline (9 months). By definition, Insolvency and Bankruptcy Courts are expected to fast-track a resolution process therefore providing a speedier remedy to an insolvency process. Unfortunately, the trend in the NCLT is not very different than India's traditional courtrooms where pending case-loads has invited sharp criticism.
According to India's national judicial data grid, 4.46 crore cases were pending as of the time of writing this article. While a majority of these have been pending in subordinate courts for some time, there has been an increase in pending load attributed to High Courts as well (12.3%). Addressing a gathering of Andhra Pradesh Judges, CJI DY Chandrachud expressed concern on the need for clearing pending case-loads, since some of them were pending for forty years. Clearing cases pending since decades could take 464 years according to a 2009 law commission report even as recent estimates by Niti Aayog in 2018 revised the time-taken to 324 years.
The very essence of a fair legal system is swift resolution. Cases dragging on for years defeats the concept of timely justice. A clogged legal system also impedes social, moral and economic growth impacting citizens and the state. Land conflicts divide communities, property inheritance issues tear families apart, and unresolved criminal cases breed resentment and social unrest. The longer these issues remain unresolved, the deeper the wounds become.
WHAT ACCENTUATES CASE LOAD
Trends from High Courts and subordinate courts point towards an imbalance in demand and supply – fewer manpower resources while civil cases and writ petitions get piled up. At the Bombay High Court for instance, the overall pending case load as of December 2023 stood at 7 lakhs of which nearly 600 cases were over 30 years old. Although Bombay High Court has a sanctioned judge strength of 94 (71 permanent and 23 additional), the court has been working with less than that. In 2022 the Bombay Lawyers Association moved a PIL demanding filing of judicial vacancies to expedite case load.
According to a PRSIndia report, 21% of the sanctioned posts of 24,018 judges were vacant. More importantly in subordinate courts, the situation gets grim with paucity of basic infrastructure. The law minister in December 2023 clarified that India's judge-per-million statistic was estimated at 21 judges per million. This needs to change given global benchmarks - Britain at 51, US at 107, and China at 300 judges per million. Having more judges is expected to improve case disposal.
Another major worry from a legal perspective is the amount of legal time that goes into scheduling hearings, deciding admission and reviewing docket/listing completion unlike in developed countries where administrative tasks of courts are supported by an external agency. Limited court time, overburdened judges, and procedural complexities act as formidable barriers, particularly for the marginalized and underprivileged. Besides paucity in judges and resources, the legal delays are complex and intertwined. Recent cases have shown how cumbersome legal procedures can be in addition to inefficient case management techniques. The system often stumbles under its own weight, struggling to keep pace with the ever-increasing demand for justice.
LESSONS FROM WEST
Singapore in recent years has also emerged as a destination for international arbitrations. Singapore's specialized courts for debt recovery follows stringent norms. For reference, a divorce according to the official Singapore judiciary website, could conclude in a record 4 months' time-frame. Following Singapore's lead, virtual hearings too can be widely encouraged to reduce unnecessary physical appearances and speeding up proceedings.
In the US, a special agency called the Administrative Office of the U.S. Courts serves the federal judiciary by handling various essential tasks, from legal counsel to IT support. A similar policy of an administrative arm providing support to legal teams can be observed in Britain and Canada. Canadian legal administrators actively encourage and even incentivize pre-trial mediation and other alternative dispute resolution mechanisms. A major lesson India could get utilize is the Dutch' approach of streamlined procedures and reduced formalities for specific types of cases, like small claims, making them quicker and less expensive to resolve.
Drawing inspiration from Australia's National Court Framework, India can develop a standardized framework for all courts, ensuring consistency and promoting information sharing through integrated case management systems. Although Indian courts have adopted computers to a great deal but the common innovative trend observed in major legal administrative systems is the time-concept or deadline. Setting a deadline at the start of a filing process itself could assure the entities of the duration of the case rather than bracing up for an undetermined time. Despite its challenges, 2023 also saw a silver lining in pending cases - nearly 60,000 cases were resolved within the year. Perhaps, India could do more by starting with a deadline.
Author: Akshat Khetan, Founder, AU Corporate and Legal Advisory Services Limited (AUCL) and is a corporate and legal advisor. Views are personal.