Having been an accidental litigant on behalf of the government in several custom and excise collectorates such as Kolkata, Mumbai, Delhi, Allahabad and all over nearly for two decades, I am confidently able to say that the vacancy in the judiciary is not the only reason for pendency in courts and tribunals. The vacancy is only part of the truth but not the whole truth.
The present vacancy figures in December are (as found in an article in Business Standard on December 31, 2018) the following:
24 High Courts had 384 vacancies; Bombay 33/93, Delhi 21/60 and, Calcutta 22/94.
Subordinate courts had around 5,000 vacancies, which are about one-fourth of the total sanctioned strength. On average, the vacancy ratio is about 25 per cent to 33 per cent.
If we assume that all vacancies are filled up, the disposal can possibly increase by the same percentage. But that will not make any dent at all on the pendency at the present rate of disposal. So the disposal rate must increase and other improvements must happen if we aim at lowering pendency. The following are the core issues:
Adjournments are the foremost reason for the very slow disposal of cases. I have seen cases where adjournments are so many that over a period of nearly 25 years, the charge sheet is not issued. In one such case, I was cross-examined seven times. To the seventh judge, who was a woman, I said, taking her permission, "Your Ladyship, Heraclitus had said that one cannot step into the same river twice. In my case, I could not see the same judge twice. I appeared seven times in this case, and you are the seventh judge.” She was good enough to take my remark smilingly. Later, I was cross-examined twice after the charge sheet was filed. I can give innumerable instances where the cases are adjourned for the asking and they are not decided. So there must be a positive approach to finish cases without giving adjournments to lawyers for unsubstantiated reasons. Here I suppose direction can be given by high courts in a general manner to lower courts to minimise adjournments.
Another issue is the filing of too many court cases, mainly for the desire of lawyers to create litigation and also to entangle the government from taking straight action. Against the Antiquities and Art Treasures Act, 1972, an interim injunction was brought from a high court in 1987, saying that the law was ultra vires to the Constitution when we seized an article which was 500 years old. The requirement is 100 years. Challenging the parentage of the article is one thing, but to say that the Act itself is unconstitutional is just to bring up litigation to thwart legal action. Such motivated injunctions create a jam. Another type of case which is usually admitted in a high court is when an order has been passed by, say, the Collector of Customs, the appeal is to the Tribunal but very often the case before the high court is admitted as an alternative remedy.
So it brings us to the third point that the courts should not admit cases without proper reason. Admitting too many cases saying that the goods imported may be released now and the merit will be heard later is a big source of litigation, which could be avoided. Once the goods are released, the importers find it convenient to delay the hearing at will.
The fourth issue is that disposal will increase if the cases are bundled issue wise.
The fifth way to improve disposal is to make courts on specific subjects as fiscal courts, administrative courts, etc, so that judges can remember the judgments by dealing with them every day. Last suggestion is to give the old cases to one or two judges so that they dispose of them having no other option.
Conclusion: I do not think that it is any disrespect to the judiciary when I say that the main burden of increasing disposal is on the judiciary. The judiciary can only reduce the number of adjournments. Lawyers will always ask for it since it gives them more income. It is the judiciary that can reduce intake by refusing to admit the cases in limine.
The writer is member, Central Board of Excise & Customs (retired)