33% Cases Coming To Supreme Court Are Bail Applications; This Calls For Introspection : Justice SK Kaul

While inaugurating NALSA’s First Regional Conference for the year 2023 titled ‘Northern Regional Conference on Enhancing Access to Justice’ organised by the Uttar Pradesh State Legal Services Authority at Varanasi, Justice Sanjay Kishan Kaul, Judge, Supreme Court of India & Executive Chairperson NALSA, on Saturday said that to dispose of the pending cases on bail and remission, some kind of a revolution, an out of the box thinking, was required or it it would take 500 or even 700 years for the judiciary to dispose them.  

Pointing out the issue of large number of pending cases, Justice Kaul said, "We have been trying to suggest to the government, not very successfully so far, that on this 75 years of celebration of Independence, some out of the box thinking is necessary. I had an occasion to comment on it judicially where I said, lets segregate the heinous crimes, whatever you say 7 years or 10 years, lets keep a benchmark and if it is less than that, and if it is a single offence case, and if the person has served one-third of the sentence, then take a bond and release him. Why do you want to take it up in Appeal in three tiers again and again and then the State landing up before the Supreme Court in every case."

"This is one of the problems. So that the courts are also little free to deal with the more heinous cases and concentrate on them. They become the most prolonged and acquittal rate is also high," Justice Kaul added. 

Justice Kaul started his inaugural talk at the conference by pointing out that, "The broad parameters on which a justice system is evaluated are availability of justice, accessibility of justice and its deliverability. If I may say so, the equality of opportunity for justice is the base. We are a vast country with a large population of socially and economically underprivileged. How do you create a balance between the two to work out our justice system." 

Issue of Undertrials

Justice Kaul first referred to the issue of huge number of undertrials languishing inside prisons across the country. He said, "One of my great concerns has been the issue of people who are undertrials, looking for bail, cases to be considered for remission, whether they can be dealt with in plea bargaining, etc."

He said, "while a prosecution system needs to be strengthened so that there is an effective prosecution, the defence system also needs to be strengthened so that they provide an equal opportunity. And NALSA’s view is to provide the best of legal assistance to people who are not others able to afford it. And that I think is the singular part of the focus which must be maintained."

Referring to the speech made by The President of India Smt. Draupadi Murmu on National Law Day wherein she had narrated her experience of the state of prisons in India, Justice Kaul said, "We have huge undertrial prisoners. Is it that we think that we cannot convict people so let us punish them by keeping them in prison during that period of time. This unfortunately seems to be a philosophy that permeates. We think he must have done this because he is charged and we must keep him in behind bars for the longest time Somewhere this philosophy needs to be jettisoned. The whole purpose, leave aside murder cases or extremely heinous cases, I have not understood what is the purpose of custodial interrogation or keeping him in custody beyond the period of chargesheet being filed." 

Wrong to burden the SC with bail matters

Justice Kaul then also pointed out that the issues concerning bail and similar matters should be dealt with appropriately at the appropriate levels i.e. the High Courts and the district courts and the Supreme Court should not be over burdened with the same. He said, "before coming here I tried to personally see how many bail matters are coming before the SC. The figure was more than 33%. That means after it has been through he scrutiny by the district level and the High court level, still the SC has to step in for purposes of bail in more than one-third cases. This is only for introspection I am saying. Why is it that we are not able to deal with it at the relevant level. Why should the SC be burdened with this every day, every bench having anything from 5 to 10 matters coming up. Therefore it is an introspection and a rethought process. For which the SC at various times has commented trying to give some guidance for this purpose." 

Every state has its own peculiarities, need to learn from others

Justice Kaul, while calling out the states to learn from other states who are performing better by doing things differently, said, "The problem is of course more aggravated in some states and less in others. In this beautiful town of Varanasi where we are now, UP faces a great challenge. It’s a great challenge because of the number of cases. Each state has its own peculiarities. UP, Bihar and even Maharashtra. Some of the states have greater problems because of pendency issues."

While sharing his experience from the Punjab and Haryana High court and the Madras High Court, Justice Kaul stated, "When I left the Madras High Court, murder appeals of 2016 were being heard in 2017. It's a large court. Is there something they do differently? That’s why I say we need to learn. On the issue of pendency of cases, when I went from Punjab and Haryana, in terms of more than 5 years cases, Punjab and Haryana had an extremely good number. It was less than 5%. Very manageable figures. Broadly same number of judges, same number of litigation filing, same number of subordinate judiciary, similarity of figures between Punjab And Haryana and Tamil Nadu, yet the figure was 24% in Tamil Nadu. So why I am trying to give this example is that there are things happening differently in other states. So, learn from them. Is there something happening where we can improve. So this is a learning process." 

Reach out to People instead of them reaching out to the system

Justice Kaul further said, "We have to see that we take help to the doorsteps. We need to reach out to help people know. Legal Services Authority has done a great job in the last few years in trying to take it to the doorsteps. Different ways, use of technology, how to keep and monitor data, how to solve people’s very very minor problems at times...As people’s aspirations grows, as the problem increase, how to get to that level where people are able to find solutions to their problems." 

Our system still very bureaucratic

Pointing out that our systems are still very bureaucratic, Justice Kaul stated that the work of the legal services authority becomes far more important. He said, "we don’t have the kind of responsiveness of administration to people that is requires in our country and therefore the judiciary in a non-adversarial adjudication of disputes steps in and I think the legal services authority does a very important role in it in trying to bridge this gap." 

Not all cases should go for trial, great believer in mediation

Stating that he was a great believer of mediation, Justice Kaul called upon all the judges in the country to step in and give impetus to mediation. He said, "I am a great believer in solving. I believe if you try all cases, it will never solve, it will never happen. Now where in the world do we face so many cases. On some opportunity to see how the US system works, California has a huge amount of litigation, only 3% cases go for trial. We take 99% cases to trial. Judges must step in to encourage mediation. They must play a hands-on role. We are trying o work out...there is no harm if judges also go through a referral training programme. Some of the states have organised, we are trying o organise for all over the country for whoever s willing."

Narrating his experience from the mediation training programme that he attended, Justice Kaul added, "When some of us in Delhi sat for mediation, we sat through the whole training. I have personally gone through the basic and the advanced training few times. Apart from what I may understand about referral, I think in my own mind it helped me understand the litigation better. Otherwise if we think that all this litigation pending must go through all trial stage, every appeal stage and must be heard at the level of the SC because the state has this privilege and unheeding financial ability to come to the high court then certainly this 500 or 700 years talk will arise. The Legal Services Authority has an important role in steering the system in this area. Try to see how you can solve these issues." 

Need to amalgamate local traditional methods of dispute resolution with the aspirations of the Constitution

Justice Kaul, before ending his speech, said, "As I get to travel more these days, It is really a start of my second innings on this aspect. For example, when I travelled to Nagaland, their traditional methods of resolution of disputes is still very much prevalent. I told them that we are not here to replace your methods. We are here to facilitate those methods. It was appreciated. So we need to create an amalgam of the Constitution and the local issues and local sentiments and local methodologies." 

NALSA’s First Regional Conference for the year 2023, 

The conference was inaugurated by Justice Sanjay Kishan Kaul who was accompanied by Mr. Justice Sanjiv Khanna and Mr. Justice Rajesh Bindal, Chief Justice, Allahabad High Court.

The conference was also attended by Justice Pritinker Diwaker, Judge Allahabad High Court & Executive Chairperson, UPSLSA and Justice Manoj Misra, Judge, Allahabad High Court & Chairman, HCLSC, Allahabad.

The Participants of the conference include Executive Chairperson, State Legal Services Authorities and Chairperson, High Court Legal Services Committee and Member Secretary, State Legal Services Authorities of 11 participating States of the Northern region, i.e., Bihar, Chandigarh, Delhi, Haryana, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Ladakh, Punjab, Uttar Pradesh and Uttarakhand.