DMPQ-“Pending cases in Courts are India’s biggest judicial challenge”. Comment.

. Delays and inefficiencies arising from the heavy dockets in Indian courts have long been a matter of concern, and like most matters of systemic concern, they have been allowed to grow gently in the dark. What Covid has done is stall the system; for every day that normal functioning does not take place, pendency multiplies. Courts at the district level often list upwards of a hundred matters daily, of which up to a quarter are fresh filings. All the fresh matters not being filed right now will be filed on reopening, since limitation periods have been extended. The economic slump caused by the lockdowns has also exacerbated the situation because, for one, defaults on debts and deliverables are rising.

Two solutions offered by voices in the senior judiciary are — digital functioning and a procedural revamping. The first is a mirage. Experience has demonstrated that outside of the Supreme Court and certain High Courts, except for bail and other exigencies, courts are not capable of hearing large numbers of cases virtually. There is a yawning digital divide between courts, practitioners and clients in metropolitan cities and those outside. Overcoming the hurdles of decrepit infrastructure and digital illiteracy will take years. To expect this kind of change overnight across the nation is deluded techno-fetishism.

Procedural quick fixes are the easiest to accomplish and therefore attractive — change at the stroke of a pen. However, they often only serve to reclassify matters. For, example, the proposal to decriminalise cheque bouncing would certainly get rid of lakhs of cheque bouncing cases, but most would reappear as criminal complaints of cheating, or as civil recovery proceedings. Procedural shortcuts can also problematically alter the rights of parties and introduce uncertainties into the law.

The failure of the elites of the legal system has been their treatment of the pandemic as being first and foremost a question of the welfare of lawyers, and not a crisis of access to justice. The system is broken at a fundamental level and from the bottom, the subordinate courts are the primary interface of the people with the justice system. Seventy per cent of prisoners in Indian jails are undertrials, who have never been convicted, and are, therefore, innocent. Few pending cases have moved forward over the last year, and adjournments of six months or more are common. It is little wonder that many citizens have lost faith in the courts.

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