The case, which involved the liquidation of the former Berhampore Bank in Kolkata, started after the city’s High Court ordered the insolvent institution to wind up operations on Nov 19, 1948. But a maelstrom of litigation to recover money from debtors left the matter unresolved for seven decades, until January.
For the public, the key takeaway has nothing to do with the case itself, but simply how long it took. The saga serves as evidence of how citizens of the world’s largest democracy often have to wait years for justice.
Law minister Kiren Rijiju noted in parliament in December that the number of pending cases across various Indian courts will reach 50 million in 2023, the highest of any country. Granted, India is set to surpass China as the world’s most populous nation this year. But as of the last count in 2019, there were 105,560 cases still pending that have been in the courts for more than 30 years, according to the law ministry.
Pinky Anand, an attorney who has argued cases at the Supreme Court, said that although the Indian legal system is one of the world’s most creative and substantive, it is riddled with procedural problems that cripple delivery of justice. “An average litigation in India takes five to 10 years, which is phenomenally high,” she said.
Experts say this judicial paralysis owes to a combination of factors, including political delays in judicial appointments, inadequate infrastructure resulting in overburdened courts, and a bureaucratic culture of apathy toward aggrieved citizens. Making matters worse, India has just one lawyer for every 951 residents. In the US, the ratio is one for every 248 residents, according to World Population Review.
India also trails in the number of judges per capita. Responding to a question in the upper house of parliament, former law minister Ravi Shankar Prasad pointed out that as of 2020, the number of judges per million people was nearly 21 in India, compared with 107 in the US, 75 in Canada and 41 in Australia.
Experts say the Right to Information and Education Act of 2009 has also raised public awareness of rights, a positive shift that has nevertheless contributed to the spiralling number of court cases. Anand raised concerns over the Public Interest Litigation system as well, which allows anyone to file a case concerning matters that affect the public and was meant to “empower the underprivileged.” The process, she suggested, “is increasingly being hijacked by vested interests,” and high-profile cases fuelled by sensationalist media coverage, pushing regular cases to the “back burner.”
And then there is the matter of resources. A justice ministry official said the judiciary is allotted only 0.1% to 0.4% of the country’s budget, dismal for a nation of India’s size and population.
Rakesh Purohit, a Delhi-based civil engineer whose father was involved in a property dispute with his family for over 25 years, says justice delayed is justice denied. “My dad fought the case for his rightful share of the familial property,” he said. “But by the time the verdict was delivered, he was no longer alive. He died a bitter and a poor man due to the protracted litigation.”
Purohit observed that archaic laws and their multiple interpretations by different courts are also reasons for prolonged litigation. “Some of our laws date back to the 1880s. If a person wants to fight a case, he is shown a law drafted in the last century. Isn’t it time the judicial system was updated in a country that boasts of being the [world’s] fifth-largest economy?”
In criminal cases, the delays not only create financial hardships but can also keep defendants behind bars for years.
India’s jails are overcrowded, often packed with large numbers of young inmates between the ages of 18 to 30 who are awaiting trial. Prison statistics from the National Crime Records Bureau for 2021 showed the occupancy rate was 130%, up 12 percentage points from 2020. In two states, Uttarakhand and Uttar Pradesh, the occupancy figure was as high as 185%.
As many as 77% of prisoners were undergoing trials. In other words, roughly three out of four inmates had not yet been found guilty. Over 11,400 prisoners had spent more than five years in jail without a conviction, the NCRB statistics show.
Experts suggest creativity may be needed to end the gridlock, such as bringing former judges out of retirement and leveraging their experience to speed up the disposal of cases. Lawyers note that in India, High Court judges retire at 62 and Supreme Court justices hang up their robes at 65, whereas in the UK and Canada judges can serve until age 75. In the US, federal judges are entitled to hold office for life.
Senior Supreme Court advocate Geeta Luthra said that employing hybrid methods, such as building an online justice system, could also speed things up.
“What the Indian judicial system requires is systemic change,” Luthra said. “Setting up of mediation cells to expedite resolution, faster disposal of cases through online or virtual arbitration and adoption of novel methods to whittle down litigation time can help tackle the problem in the long term.”
Anand said that everyone in the system, from lawyers to clients to judges, should “work toward a time-bound resolution, and costs must be imposed on those deploying delaying tactics to derail the procedures.”