JUSTICE DELAYED IS JUSTICE DENIED: IDENTIFYING,

REVALUATING AND REMOVING THE FACTORS IMPEDING THE

DISPOSAL OF CASES IN THE INDIAN JUDICIARY

Submitted by:
Anu Swaraj (1340), Ashna D (1344), Chintakunta Harshith (1347), Dharshini S (1349),
Naveen Kumar LR (1391), Niranjan MS (1372), Padmavathi Prasad (1373),
Saaramsh S (1378), Suhan S (1387), Vallari Dronamraju (1388) & Vismay Gorantala (1389).
VI Semester B.A. LL.B. (Hons.)
The National University of Advanced Legal Studies, Kochi
TABLE OF CONTENTS
Introduction 3
Causes for Judicial Delay in India 3
Delay in Filing Written Statement 3
Transfer of Judges 4
Non-appearance of the Parties 5
Huge Number of Appeals 5
Vexatious Litigation 6
Ratio of Judges to Population 7
Frequent Adjournments 9
Judicial interpretation of provisions in the Code of civil procedure, 1908 that cause Delay
in India 12
Salem Bar Association v. Union of India (Salem 1) 12
Delay in Justice Administration – A Universal Problem with far-reaching Consequences 16
The United States of America 16
Canada 19
Australia, New Zealand and Vanuatu 20
Northern Europe – Denmark, Finland, Norway and Sweden 25
Malasia 28
India 30
Ireland 32
Singapore 39
The Way Ahead for the Indian Judiciary 48
Suggestions and Policy Recommendations to Reduce Delay 57
Conclusion 64
INTRODUCTION

“Justice Delayed is Justice Denied”

This quotation, often attributed to E. William Gladstone (or William Penn, depending on who
you ask) has great significance in a country where litigation can outlive the litigator. It defines
the very fabric of the judicial system in India. Getting speedy justice is in fact a rare
phenomenon.

This is not the first time someone has set out to find a cure to the delay in the Indian judicial
system and it definitely will not be the last. There have been law commission reports and
private studies alike that analysed this issue to the core and presented solutions. But in a country
of 1.3 billion people, It is imperative that constant attempts be made to streamline the judicial
processes and remove bottlenecks to deliver justice to citizens.

The rule of law cannot exist without an efficient judiciary, which is capable of enforcing
rights during a timely and proportionate manner during a way that inspires public
confidence within the administration of justice. For the law to control, the system through
which it's administered must qualify adequately when mapped against the three dimensions of
justice– substantive justice on merits, timeliness within the disposal of cases, and proportionate
use of the State’s resources. Access to justice thus, assesses the fulfilment of an individual’s
entitlement to justice on these parameters to make sure that legal redress doesn't become the
preserve of a handful. It represents the power of each person to enforce the fundamental rights
and freedoms guaranteed by law.

This project attempts to delve into the causes of delay in the Indian Judiciary, the way foreign
jurisdictions deal with the delay and policy recommendations to prevent delay in Indian
Judiciary.

CAUSES FOR JUDICIAL DELAY IN INDIA

DELAY IN FILING WRITTEN STATEMENT

Written submissions and documents submitted by parties in a case play a vital role in the
decision of the case. But it is very common that the counsels for the parties do not submit these
on time on one pretext or the other. In such a situation, judges are handicapped and they have
no option but to postpone the hearing of the case. The Amendments to the Code of Civil
Procedure enacted in 1908 have been made keeping in view the recommendations of the Law
Commission. Anxiety of Parliament as evident from the amendments is to secure an early and
expeditious disposal of civil suits and proceedings without sacrificing the fairness of trial and
the principles of natural justice inbuilt in any sustainable procedure. By the 1999 Amendment
Act amended Order 8 Rule 1 of the Code. The purpose of such-like amendments is stated in
the Statement of Objects and Reasons as "to reduce delay in the disposal of civil cases".

Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written
statement within 30 days from the date of service of summons on him and within the extended
time falling within 90 days. The provision does not deal with the power of the court and also
does not specifically take away the power of the court to take the written statement on record
though filed beyond the time as provided for. However, considering many aspects such as the
object of prescribing procedure is to advance the cause of justice and that in an adversarial
system, courts have leaned towards construing the provision in a manner where it occupies the
court to meet extraordinary situations in the ends of justice.1 There is an impending conflict
between the connotations ‘justice delayed is justice denied’ and ‘justice hurried is justice
buried’2.

Even though such an interpretation to Order 8 Rule 1 is drawn in the light of the principle of
natural justice, this rule is not adhered to by the Courts properly which is another reason for
the delay in civil suits. The provision of the Code which was primarily aimed at speeding up
the process is misused and not followed strictly.

TRANSFER OF JUDGES

When the judges are transferred, the new Judge may at times order for new trial 9 de novo trial)
altogether which postpones the procedures. This is another reason which obstructs timely
disposal of matters. Also, where a prospect of transfer is known to the judge, he can hardly be
expected to take a strong interest in the preliminaries, when he knows that the hearing of the
evidence and the decision will not be by him but by his successor after his transfer. So long as
such arrears exist, there is temptation to which many Presiding Officers succumb, to hold back

1
Sambhaji & Ors vs Gangabai & Ors 2009 (24) ELT 161 (SC) ; Salem Advocate Bar Assn. v. Union of
India 2005(6) SCC 344
2
Sambhaji & Ors vs Gangabai & Ors 2009 (24) ELT 161 (SC) at ¶ 8
the heavier contested suits is thus maintained somewhere near the figure of institution, while
the real difficult work is pushed into the background.3

NON-APPEARANCE OF THE PARTIES

Another reason which leads to delay in civil cases is when the date and time are fixed for a
matter and the parties do not turn up on the given date and time. Since the respondent knows
the probability of the judgment against him most of the time he tries to take as many
adjournments as possible to give his counter. According to the provisions of CPC, if the
plaintiff does not appear on the day of hearing the suit will be dismissed. Thus, the plaintiff
bring new suit or court may restore the suit. Similarly, if the defendant does not appear and
plaintiff appears the court shall decide the suit ex-parte. Further, the delay is also caused
because the parties do not appear for cross-examination. Therefore, non-appearance of parties
on the day fixed for hearing is also a prominent cause for delay in civil proceedings.4

HUGE NUMBER OF APPEALS

When a large number of appeals are brought before the Courts they find it difficult to invest
their time and energy in the disposal of important matters and as a result have to invest their
time in the disposal of these large numbers appeals. Out of total pending litigation in High
Courts sizable portion is in the segment of First Appeals. The First Appeals are filed in High
Courts mainly from Senior Division Courts.

The inflow of first appeals has, barring few exceptions, outnumbered the disposals and thereby
contributed sizably in cumulative backlogs.5 In almost all High Courts, the first appeals are
pending for final hearings since more than 5 to 6 years. At the time of filing the appeal, hearing
for admission is taken up and once the appeal is admitted it is listed for final hearing after
several years. Any interim relief granted at the stage of hearing continues virtually in a
perpetual manner unless set aside by the Appellate court at a later stage. The major problem
which is consistently discussed by all committees is the fall in value of Rupee and
consequential increase in volume of litigation which in olden days constituted high value suits.6

3
Civil Justice Committee 1924–1925, para 16, at 22. Quoted from Centre for Research & Planning, Supreme
Court of India, Subordinate Court of India: A Report on Access to Justice 2016, New Delhi,
http://supremecourtofindia.nic.in/Subordinate%20Court%20of%20India.pdf
4
Pragadeeswaran et al., A study on delay in civil proceeding, IJPAM 120 No. 5 2018, 2571-2582
5
Causes for Delay, Chapter IV, https://shodhganga.inflibnet.ac.in/
6
Law Commission of India (79th reports)(1979); High Court Arrears Committee(1972); Satish Chandra
Committee Report; Malimath Committee Report(1990).
There is a need for periodic review of such limits keeping in view the overall economic
position, pendency of cases etc.

The Legislators in India, being aware of the plague that delay in the dispensation of justice,
amended the Code of Civil Procedure in the years 1999 and 2002. The Amendments that were
made were in order to expedite the delays that exist. The Supreme Court analysed these
amendments in cases of Salem Bar Association v. Union of India7 and The Salem Bar
Association v. Union of India8. In these cases, the Indian Judiciary clarified the operating of
the amended provisions and streamlined the functioning of the Judiciary in a hope to reduce
Judicial delays.

VEXATIOUS LITIGATION

Vexatious litigation refers to filing legal cases “without reasonable ground”. A vexatious
litigant’s ongoing pleas would then be dismissed from the court and the litigant will not be
allowed to file any other civil or criminal cases in the High Court or the lower courts without
prior permission. Laws against vexatious litigation already exist in three states – Maharashtra
(since 1971) and Tamil Nadu (since 1949, when it was still the State of Madras) and recently
in Madhya Pradesh ( 2017). In 2005, the Law Commission had proposed a similar legislation
for the whole country, its argument rooted in the idea that a court’s time should not be taken
up by those who persistently litigate without a justifiable cause. If the bill eventually becomes
an act, the state’s advocate general will have the power to submit a High Court application
against any person he claims has been habitually filing civil or criminal cases without any
reasonable ground.

In the 189 th Report of the Law Commission of India on ‘Revision of Court-Fee Structure’
(February 2004), there was a reference to ‘frivolous and vexatious’ litigation. In the
Introductory Chapter and in Chapter VI of that Report, the Commission had occasion to refer
to the constant demand for increase in court fee to prevent frivolous or vexatious litigation.
Subsequently the 192nd Law Commission was set up to deal with Vexatious litigation leading
to delays.

In the case of Secretary to Govt. of Madras vs. P.R. Sriramulu : 1996)(1) SCC 345 (p 351), it
was observed as follows- “In the beginning the imposition of the (court) fee was nominal but

7
AIR 2003 SC 189.
8
(2005) 6 SCC 344.
in the course of time, it was enhanced gradually under the impression that it would prevent the
institution of frivolous and groundless litigation and as an effective deterrent to the abuse of
process of the Court without causing any impediment in the institution of just claims. However
significant this view may be that the levy of fees would have a tendency to put a restraint on
frivolous litigation, that view, at any rate, had the merit of seeking to achieve a purpose which
was believed to have some relevance to the administration of justice. Since about past two
decades, the levy of court fee on higher scales would seem to find its justification, nor in any
purpose related to the sound administration of justice but in the need of the State Government
for revenue as a means for recompense.”

RATIO OF JUDGES TO POPULATION

Going back to the 120th Report of the Law Commission of India (July, 1987) titled “Manpower
Planning in the Judiciary: A Blueprint”,9 which essentially dealt with the problem of manpower
planning in India’s judiciary. The Commission had opined that the complacence shown by the
country even since the colonial period. It states that the “overall lack of attention to this problem
on the part of political parties, free press, social activists and the Bar” was the primary reason
for this issue not being brought forth. The Commission further added that “the Judges of the
High Courts and the Supreme Court of India, sitting or retired, have also not lent their weight
to this constitutional cause in any major way.” Emphasis was laid on to Article 39-A10 of the
Constitution of India, 1950 which was the primary Directive Principle which could reform the
judiciary and help provide equal opportunities for justice. The Commission further made note
of a need to assess the number of judges that will be required based on the rate of litigations
filed in the country. The Commission also recommended the number of judges per million to
be increased from 10.5 to a more suitable 50.11 The current status is that access to justice is a
fundamental right transcending the scope of Part IV alone.12 This makes it imperative for the
executive to ensure that adequate steps are taken to match the ratio of judges with the
population.

9
http://lawcommissionofindia.nic.in/101-169/Report120.pdf
10
Article 39-A - Equal justice and free legal aid: The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
11
Supra note 1, at 3
12
Tashi Delek Gaming v. State of Karnataka; (2006) 1 SCC 442
Law Commission of India once again in its Report No. 245 also recommended the need for
filling vacancy of judiciary. It says that “data obtained from High Courts indicates that the
judicial system is severely backlogged, and is also not being able to keep pace with current
filings, thus exacerbating the problem of backlogs. The system requires a massive influx of
judicial resources in order to dispose of the backlog and keep pace with current filings. The
data indicates the need for taking urgent measures for increasing judge strength in order to
ensure timely justice and facilitate access to justice for all sections of society.”13 The Report
had also made suggestions for the provision of adequate staff and infrastructure in line with the
decision and observations of the Honourable Supreme Court in All India Judges Association v
UOI, where it held: “We are conscious of the fact that overnight these vacancies cannot be
filled. In order to have Additional Judges, not only the post will have to be created but
infrastructure required in the form of Additional Court rooms, buildings, staff, etc., would also
have to be made available.”14

Speaking in terms of present day numbers, as per a statement issued by the Department of
Justice15 of the Government of India (dated 01/04/2020) which shows the sanctioned strength,
working strength and vacancies of Judges in the Supreme Court of India and the High Courts,
the total sanctioned strength of Supreme Court Judges is 34 and that of the High Court Judges
in the country is 1079. The Supreme Court functions at a nearly full strength of 33 with only
one vacancy noted. The High Courts, on the other hand, have a very disappointing working
strength of 690 out of the sanctioned 1079. This amounts to a nearly 35% deficit in the number
of judges in the upper echelons of our judiciary. Subordinate Courts in the country are
sanctioned a total number of 22,704 judges whereas the total working strength is 17,028 (as of
2017)16. The major brunt is borne by the subordinate courts of the country where majority of
the litigation occurs. India’s population, as per estimate provided for the year 2020 in the UN
World Population Prospectus 201917 stands at 1.38 billion. Holding the numbers as a rough
estimate, this makes the judges to citizens ratio in India a drastic 1 : 77,750, i.e., one judge for
every 77.75 thousand people. To match the required ratio of judges as 50 : 10,00,000 (as per
recommendation of the 120th Report of the Law Commission) based on present population
statistics, there needs to be an increase to 69,000 judges. This discouraging and vast gap in the

13
Law Commission of India, Report No. 245, Arrears and Backlog: Creating Additional Judicial
(wo)manpower, July 2014; http://lawcommissionofindia.nic.in/reports/Report_No.245.pdf
14
(2002) 4 SCC 247
15
https://doj.gov.in/sites/default/files/Vacancy%2801.04.2020%29.pdf
16
Examining pendency of cases in the Judiciary (https://www.prsindia.org/blogcomment/843022)
17
https://population.un.org/wpp/Download/Standard/Population/
required numbers against the ones available is the most fundamental reason for the continuing
backlog of cases in the country.

FREQUENT ADJOURNMENTS

Frequent adjournments back off the justice delivery system in common issues. Law
Commission of India in its Seventy Seventh Report (dated 27th November, 1978) likewise said
frequent adjournments as an imperative reason for delay.18 Though the Code of Civil Procedure
provides that "no such adjournment should be allowed more than thrice to a party to the suit,"
the courts are not following this properly.

Prior to 1999, there was no limit on the number of trial adjournments courts could grant. The
1999 Amendment fixed an upper limit of three adjournments that courts could grant during the
hearing of a suit. However, in the 2005 case of Salem Advocate Bar Association-II (2005 (6)
SCC 344), the Supreme Court interpreted this restriction as not curtailing the court’s power to
allow more than three adjournments.

This decision has had an active afterlife, having been invoked by tens of high court decisions
which proudly proclaim the court’s inherent rights to endlessly adjourn.

The 1999 Amendment fixed the timeframe for yet another important provision which directly
impacted the court’s general power to extend timelines. It specifically disallowed the courts
from enlarging the time granted by them for doing any “act prescribed or allowed by the Code”
beyond a maximum period of 30 days. However, in the same 2005 case, the Supreme Court
interpreted this timeframe as one not attenuating the inherent power of Indian courts to “pass
orders as may be necessary for the ends of justice or to prevent abuse of process of the Court”.

In order to curb the practice of non-prosecution of cases filed by litigants, the 1999 Amendment
also fixed an outer timeline of 30 days for service of summons on defendants. However, in
2003, in the case of Salem Advocate Bar Association-I (AIR 2003 SC 189) the Supreme Court
interpreted this to mean that 30 days limit designated only the outer timeframe within which
steps must be taken by the plaintiff to enable the court to issue the summons. In other words,

18
Law Commission of India, Seventy Seventh Report, Delay and Arrears in Trial Courts, November 1978
the court held that the provision did not specify a time limit within which summons ought to
be served on the defendant by the court.19

In Salem Advocate Bar Association, Tamil Naidu vs Union of India20, the Supreme Court while
examining the scope and validity of several sweeping amendments brought by the 1999
amendment to the Code of Civil Procedure, 1908 effective from 1.7.2002 and while dealing
with amended Order 17 and especially Rule 2,CPC observed thus:

"We may, however, add that grant of any adjournment let alone first, second or third
adjournment is not a right of a party. The grant of adjournment by a court has to be on a party
showing special and extra- ordinary circumstances. It cannot be in routine. While considering
prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict
grant of adjournments".

In the case of Raj Kumar v. Ramesh Kumar and ors. It was observed by the judge that “After
the amendment of Order 17, CPC adjournments can no longer remain a plaything in the hands
of litigants and lawyers before a hapless court to delay the progress of a suit by trying to avoid
timely achievement of target milestones in its life. I should like to think, that 'last opportunity'
when granted by Court should be read independently as an adverse order reviewable or
revisable by itself in a superior forum in appropriate proceedings, failing which the first such
order would attain status of finality or a case which is decided. If this principle is accepted it
may go a long way to get rid of the pernicious culture of adjournments that is gnawing at the
system of delivery of speedy justice. This should become the inflexible rule and adjournments
the exception. Of what I may call a part of Judge made law.”

The Law Commission in its 77th Report on Delay and Arrears in Trial Courts21, laid down
suggestions for clearing the same and decreasing backlog. One particularly striking and
apparent cause is the practice of adjournments. The Report referred to the changes that had
been made in Or. 17 of the Code of Civil Procedure with effect from February 1, 1977 by Act
104 of 1976. It was suggested that the new provisions, if enforced strictly, would prevent
unnecessary adjournment of cases. The Report had referred to one provision in connection with

19
https://timesofindia.indiatimes.com/blogs/toi-edit-page/what-causes-judicial-delay-judgments-diluting-
timeframes-in-code-of-civil-procedure-worsen-the-problem-of-adjournments/
20
AIR 2005 SC 3353.
21
http://lawcommissionofindia.nic.in/51-100/Report77.pdf
avoiding the recording of evidence in instalments which shall be discussed later. The other
provisions discussed were22:

“(b) no adjournment shall be granted at the request of a party, except where the circumstances
are beyond the control of that party.

(c) the fact that the pleader of a party is engaged in another court, shall not be a ground for
adjournment.

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than
his being engaged in another court, is put forward as a ground for adjournment, the court shall
not grant the adjournment unless it is satisfied that the party applying for adjournment could
not have engaged another pleader in time.

(e) where a witness is present in court but a party or his pleader is not present or the party or
his pleader, though present in court, is not ready to examine or cross-examine the witness, the
court may, if it thinks fit, record the statement of the witness and pass such order as it thinks
fit dispensing with the examination-in-chief or cross-examination of the witness, as the case
may be, by the party, or his pleader not present or not ready as aforesaid.”

It was further provided:

“Where the evidence or a substantial portion of the evidence of any party has already been
recorded and such party fails to appear on any day to which the hearing of the suit is adjourned,
the court may in its discretion, proceed with me case as if such party were present.” This
allowed for the court to proceed ex-parte to prevent another unnecessary adjournment.

The Commission had stated that “Another salutary practice which must be adhered to while
recording evidence is to complete the entire evidence and to avoid recording of evidence of a
party in a case in instalments. According to cl. (a) of the proviso to sub-r. (2) of R. 1 of Or. 17
of the Code of Civil Procedure23, when the hearing of the suit has commenced, it shall be
continued from day to day until all the witnesses in attendance have been examined, unless the
court finds that, for exceptional reasons to be recorded by it, the adjournment of the hearing
beyond the following day is necessary. As things are at present, the practice prevailing in most
of the courts is to record evidence in instalments.” The Commission also laid emphasis on the

22
Or. 17 R. 1(2), proviso CPC.
23
Or. 17 R. 1(2), proviso CPC.
condemnation of said practice by the 14th Report of the Law Commission.24 They concurred in
entirety with the views held in the latter. This set of observations and submissions made in the
report held true in 1978 and regrettably hold true even to this day. This unfortunate lack of will
to reform this practice in the Indian judicial system has led to many cases of relatively small
magnitudes being dragged on for years together.

JUDICIAL INTERPRETATION OF PROVISIONS IN THE CODE OF CIVIL PROCEDURE,

1908 THAT CAUSE DELAY IN INDIA

Salem Bar Association v. Union of India (Salem 1)

Background –

A writ petition was filed by the Salem Advocate Bar Association. This particular petition was
filed by the association in order to challenge the Amendments that were made to the Code of
Civil Procedure in the years 1999 and 2002.

The following are the observations that the Supreme Court made in the case in the context of
reducing delays in litigation.

Section 27 (Time period for Issuing Summons)

This particular section of the Code that provides for “Summons to Defendants” was amended
by the Amendment Acts. The Court was of the opinion that the words “on such day not beyond
thirty days from the date of the institution of the suit” suggests that all the formalities that have
to be observed by the plaintiff has to be observed with a period of thirty days from the date of
the institution of the suit. It does not mean that the Court has to physically send out the
summons within a period of thirty days from the institution of the suit. The Court was of the
opinion that the main reason for delay in this regard was due to the plaintiff not completing the
requisite formalities.

Section 89 (Reference of cases to Alternate Dispute Resolution Mechanisms)

This particular section provides for referring certain cases to ADR. The court observed that the
parities have to decide as to what form of ADR they would like to resort to. The court held that
in spite of there being a provision that provides for ADR, the burden on the courts has not been
reduced. Therefore, the court ordered for the setting up of a Commission consisting of Mr.

24
14th Report, Vol. 1, p. 335, para 63.
Kapil Sibal, Mr. Arun Jaitley, Mr. C.S. Vaidyanathan and Mr. D.V. Subba Rao. To provide for
modalities on how section 89 is to operate and to provide for a case management formula.

Section 100A (Intra – court appeals)

The court considered the question as to whether any further appeal should be contemplated
when an appeal is filed in the High Court against the decree of a trial court. The Court held that
to give the further right of appeal to cases heard by a Single Judge in the High Court, where
the amount involved is a nominal amount would really increase the workload unnecessarily.
The court was also of the opinion that there is no prejudice caused to the appellant if such right
is not granted.

Order 7 Rule 11 (Rejection of plaint)

The Court held that the a plain that does not comply with clause (e) (Plaint to be filed in
duplicate) and clause (f) (failure to comply with Order 7 Rule 1 i.e – procedure for the
admission of a plaint) the courts should not straightaway reject the plain, however, they have
to give the plaintiff the opportunity for rectifying the defects.

Order 16 Rule 1 (List of witnesses and summons to witnesses)

The Court held that when a witness is produced by a party who wishes to rely on the evidence
that is produced by that particular witness, the examination – in – chief can be undertaken by
filing an affidavit. But there are situations where the witness that the plaintiff wishes to rely on
may not be willing to co-operate with the party who wishes to rely on their evidence and file
an affidavit. In such a situation, the court observed that if the court summons the witness on
behalf of the party, then filing of an affidavit is optional. The Court could also order for the
witness to be present, depending on the facts and circumstances of the case.

Order 18 Rule 4(2) (Recording of evidence)

There was an apprehension that was raised that once a court appoints a commissioner to record
evidence, it forfeits its right to record evidence. The Court in this case clarified this position
and held that the court can order a commission to record all the evidence; can order a court to
record all the evidence or it can order a commission to record part of the evidence and court to
record part of the evidence.

Order 18 Rule 17A (Adducing additional evidence)

The counsel contended that the deletion of the particular rule by the amendment Act will cause
untold hardships to litigants. The Court held that this particular rule was inserted in the year
1976, and that by removing this particular rule, status quo has been reverted back to. The Court
observed that this is necessary to curb unnecessary applications and prolonging of trials.

Order 41 Rule 9 (Registry of memorandum of appeal)

The counsel contended that there was an apprehension that the appeal had to filed in the court
against whose decree the party prefers an appeal. This position was clarified by the court in
this case and the court observed that the appeal has to be filed in the court in which it is
maintainable. The particular appeal will be filed in a register called the ‘Registry of
Memorandum of appeal”.

Note: The Salem 1 case, appointed a Commission to establish a case management formula.

Salem Bar Association v. Union of India (Salem 2)

In this particular case, the court reconsidered what was held in Salem 1 and the Committee that
was appointed by the Court in Salem 1 put forth its report. The Report was in three parts. The
Court in Salem 2 considered all the three parts of the said report.

Firstly, the Court in this case considered the question as to whether it was valid for a
commissioner to record evidence under Order 18 Rule 4. It was contended that in such cases,
the court is deprived of the opportunity to gauge the demeanour of the witnesses. The Court
rejected this contention and held that the legislative will cannot be questioned in this regard.

Order 18 Rule 19 and Order 26 Rule 4A

The Court also held that there is no conflict between Order 18 Rule 19 and Order 26 Rule 4A
and that the court can order a commission to record evidence at the appellate stage.

An additional question as to whether a commissioner can declare a witness to be hostile was

considered. The Court held that the powers that are delegated to the Commissioner under Order
16, Rules 16, 16A, 17 and 18 do not include the discretion that is vested in Court under section
154 of the Evidence Act to declare a witness to be hostile.

Order 18 Rule 17A

The question of whether the deletion of Order 18 Rule 17A of the code disentitles production
of evidence at a later stage was raised. The court held that the deletion of Rule 17A does not
disentitle production of evidence at a later stage. The Court may permit leading of additional
evidence at a later stage on such terms as it may appear just.

The amendment Act of 1999 provided that the defendant shall within 30 days from the date of
service of summons, present his written statement in Court. The power to the court to extend
this period up to 90 days was given to the court. The question that was raised was whether the
court has the power to extend this period beyond 90 days. The Court in this case held that the
provision that provides for a maximum period of 90 days is not mandatory but is only directory.
The court arrived at this conclusion because the consequences of not filing the written
statement within the 90 days has not been provided for in the Act.

The court however held that an order that extends the time limit to file a written statement
cannot be made in routine and that it should only be made in exceptional circumstances. If this
is not so, the will of the legislature will not be followed.

The Act restricts the granting of adjournments to three. The question that was raised was
whether further adjournments beyond three can be granted in circumstances beyond the control
of the party. The Court held that this could be done however, the circumstance should be grave,
for instance, a party may be suddenly hospitalised on account of some serious ailment or there
might have been an Act of God that has intervened in the life of the party. In such cases the
court can grant adjournment beyond three times.

Section 148 (Enlargement of time for doing any act prescribed or allowed by the Code)

In this regard, the court held that it has the inherent power to extent time beyond 30 days and
it observed that the rigid operation of section 148 can lead to absurdity and hence that extension
beyond 30 days can be permitted.

These observations of the court are illuminative of the legal position in India pertaining to the
reduction of pendency of litigation and to expedite the judicial process. We will see later in the
project, how various other jurisdictions combat the menace of judicial delay and also put forth
several policy changes that can be brought about in order to curb this menace. But before that,
we shall go into further detail of some of the aspects that are mentioned above.
DELAY IN JUSTICE ADMINISTRATION – A UNIVERSAL PROBLEM WITH FAR-

REACHING CONSEQUENCES

Courts are expected and obliged to dispose of cases in a reasonable time and to conduct a fair
trial in those cases that proceed to hearing. Failure of courts to dispose of cases in a reasonable
time can affect the public perception of the courts and cause citizens to lose trust if they see a
court is functioning too slowly or unpredictably. This loss of trust can have significant
consequences.

It can lead to unrest in the community if disputes remain unresolved because the public may
perceive the courts as blocking and impeding justice. For example, in some Pacific Island
Countries (PIC), lengthy delays in the disposition of disputes related to land have been cited as
causes of broader community tensions that in some cases have led to violence.25

The World Bank while commenting on the socio-economic impacts of such delays, said,
“Inefficient court systems illustrated by possible extended court litigation act as a disincentive
for large investments to stream in. More importantly, the nexus between an effective judiciary
and genuine development is recognized. It has been cited that inconsistencies in the decision
making, along with courts saddled with large case backlogs, contribute to the erosion of
individual and property rights, stifling private sector growth, and, in some cases, even violating
human rights.”

Judicial systems all around the world face this problem. Therefore, one way to approach the
problem of delays in India is to analyse how other countries tackle this issue. In this section,
we shall look into some countries from across the world that have attempted to reduce delays
using several innovative methods.

THE UNITED STATES OF AMERICA

The U.S.A has a unique Court system which is largely decentralised. It has State Supreme
Courts as well as a Federal Supreme Court, in addition to Circuit and District Courts. District
Courts in particular, are increasingly overwhelmed by the demand for judicial services. Here
are some methods that courts across the United States have implemented in their civil court

25
Edward Laws, Addressing Case Delays Caused by Multiple Adjournments, GSDRC Helpdesk Research
Report 1374, https://assets.publishing.service.gov.uk/media/57a9c983e5274a0f6c000006/HDQ1374.pdf (2016).
system. The World Bank has also put forth many suggestions to improve the justice delivery
system in the US.26

First, formulating objective criteria to determine the number of judgeships in each district and
constantly evaluating such criteria. This should be roughly proportional to that district’s case
filings and include aspects such as population, income and population density. This might
discourage individuals and firms from initiating litigation, creating a false impression of less
demand for judges.

Second, the judiciary should work with the other branches to introduce improvements in
management practices and digital information management. Courts with similar caseload per
judge differ widely in terms of median time to civil disposition, showing potential for
improvement. In accordance with previous literature, scheduling of case deadlines and
improvements in digital information management seem to be promising.

Electronics has found application in at least three ways: technologies to improve courtroom
functionality, digital management of case files, and technologies to improve judges’ chambers’
functionality. Some devices improve the quality of the evidence brought to the courtroom, such
as multimedia presentation capabilities, wireless headsets for the hearing-impaired and
language interpreters.

Other devices improve the efficiency of the procedure, such as videoconferencing equipment
for virtual courtroom testimony and viewing depositions, and the ability of attorneys to
download a real-time transcript of the proceedings onto their computers. Federal District Courts
allow the electronic filing of documents in civil cases. Implementation of the Case
Management/Electronic Court Filing (CM/ECF) program started in 2001 and by December
2006, the system had been introduced in most District Courts and has dramatically increased
access to information and process efficiency through 24/7 availability of case documents using
standard software, immediate docket updating and automatic notice of filings to the opposing
counsel.

The system will inter alia allow thorough real-time statistics on court activity. The judge’s
chamber has also been equipped with a series of instruments, including real-time chat
capabilities, to enable communication between the bench and chambers while the court is in

26
The World Bank, Report on Reducing Court Delays: Five lessons from the United States
http://documents.worldbank.org/curated/en/676191468130802640/pdf/21584-BRI-REPLACEMENT-
premnote34-PUBLIC.pdf (last visited Apr. 9, 2020).
session. This feature has proven to be invaluable: not only can the judge ask questions to the
law clerks during the session, but the clerks can also hear the proceedings in real time through
speakers.

In Colorado Courts27, e-filing is permitted in the district courts thereby streamlining the
process for the Court of Appeals to receive transcripts and records. Videoconferencing is also
used for oral argument presentation, which reduced scheduling delays. Further, Courts here do
not grant requests for oversized briefs and fix word limits on appellant briefs and reply briefs
(at around 9,500 and 5,700 words respectively). The Colorado Court of Appeals regularly
denies extension requests by Counsels, and grants them only in exceptional circumstances.
This largely cut down the time taken to dispose of each case.

Justice System Coordinating Committees that were set up to look into the issues of delay
also suggested the following measures.28 First, it was important to collect statistical or sampling
data on case processing times from commencement through disposition. Active, pending cases
should be inventoried to determine the magnitude of the backlog and to pinpoint the exact cases
contributing to delay.

Next, establish a permanent monitoring and control system. Few automated information
systems generate case flow related data. Statistical information to monitor the movement of
cases within the limits of the new goals may have to be drawn from a number of manual and
automated systems. Once the information is collected, the critical need is for analytical
capability to separate procedure or time standard problems from resource problems. The most
cost effective means of developing monitoring and control functions appears to be the
integration of these functions into the clerk's office, or the court administrator's office. In some
situations, new staff with special technical skills must be hired.

The Committee noted that the key factor in reducing delay and backlog is the commitment of
the managers of the adjudication process. Particularly important is the role that judges play in
maintaining control over the case process from filing to termination. Encouragement by the
judiciary for early disposition of cases avoids needless expenditure of court resources,
resources often expended for cases that never come to trial.

27
Nicole L. Waters et al., Examining Delay: Its Causes, Consequences, and Possible Solutions in the Colorado
Court of Appeals, NCSC, https://www.ncsc.org/microsites/trends/home/Monthly-Trends-
Articles/2018/Examining-Delay.aspx (2018).
28
U.S Department of Justice, Report on Court Delay Reduction, NCJRS,
https://www.ncjrs.gov/pdffiles1/Digitization/98250NCJRS.pdf (last visited Apr. 9, 2020).
The next aspect that was stressed on was time management. The Committee found that when
time limits were set, from filing in civil matters, to cover each step in the case process, it was
easier to push for compliance with time limits. A number of states have reduced civil court
delay through the exercise of rule making powers, and through state wide case reporting
systems. A unique capacity exists, at the state Supreme Court level, to assure that efficiencies
in case processing are not only achieved but maintained.

The eight areas the Committee focussed on were – appointing administrative judges, setting
case time limits, avoiding random case assignments, uniform procedures for use of audio and
video technology, restriction of case continuances, time limits for delivering judgments,
quarterly reviews of judges' personal dockets, case dismissal where no action has been taken
within six months and preparing monthly summary reports to be sent to the Chief Justice by
each trial judge. More specific case studies were undertaken and implemented in the States of
Alabama, Massachusetts, New Jersey, Kansas, and Ohio.29

CANADA

The Canadian Bar Association came up with a ten pronged approach to deal with the issue of
delays in their country. A Senate appointed Committee also looked into this issue in detail and
came out with many suggestions that were successfully implemented. The suggestions that are
relevant to civil cases have been listed below.

Suggestion 1: Appoint Enough Judges

In many regions, vacancies on the Bench have been unfilled for years. Promptly filling those
vacancies, increasing the complement of judges where required, and appointing more
experienced civil lawyers would make a difference.

Suggestion 2: Prioritize Early Resolution

A robust pre-trial procedure allows more accurate estimates of court time needed, saving time
and resources later. In our context, it would help if High Courts came out with guidelines that
lawyers must follow in civil disputes, to prevent the case coming before courts in the first place,
particularly the higher judiciary.

Suggestion 3: Use Technology

29
Id.
Modernize routine court appearances. When necessary, allow for counsel participation by
phone, email or video conferencing.

Suggestion 4: Resource the System

Delays often occur when Crown attorneys, court staff and courtroom facilities are inadequate
or unavailable. Equipping courts with better resources is crucial to avoiding delays.

Suggestion 5: Keep Preliminary inquiries

Rather than consuming extra time, preliminary inquiries usually mean an earlier resolution of
the case. In the minority of cases that still proceed to trial after a preliminary inquiry, matters
are significantly streamlined.

AUSTRALIA, NEW ZEALAND AND VANUATU

One of the common objectives for court services across Australia is to process matters in an
expeditious and timely manner. An annual Report on Government Services conducted by the
Australian government in the year 2015 highlights the aspects of ‘Civil Timeliness Factors’
which point out the factors that affect the timeliness. These factors are as follows:
- The parties to a case can significantly affect the conduct and timeliness of a case, that
is, matters may be adjourned at the instigation of, and by the consent of, the parties -
such consent arrangements are outside the control of the court.
- Where civil cases are contested, a single case may involve several related applications
or issues that require judgments and decisions by the court.30

To these, courts offer ‘Diversion Programs’ to improve the quality of outcomes. These can also
involve processes that are outside the control of the court administration and can turn out to be
quicker and cheaper form of dispute resolution. For example, processes such as:

- Mediation: A court may require parties to complete a mediation program within a

specified time. The completion time can be affected by the complexity of the dispute
and the number of parties involved. Usually, all parties consent to mediation but in
some states, parties can even be mandated to mediate their dispute.
- Arbitration: Referrals to arbitration are made early in the proceedings and the court
supervises the process. The hearing is shorter than a court hearing.

30
Report on Government Services 2015 , Govt. Of Australia, https://www.pc.gov.au/research/ongoing/report-on-
government-services/2015/justice/courts/rogs-2015-volumec-chapter7.pdf (last visited Apr. 10, 2020).
 - Reference to a referee: Technical issues arising in proceedings may be referred to
suitably qualified experts for inquiry and report. The court may supervise the process
and then adopt, vary or reject the report.31

All these steps contribute in decreasing the time period between lodgement and finalization of
cases.

Upon implementing these measures, the Report on Government Services 2015 found that the
Local Court of New South Wales which handles more than 90 per cent of the state’s civil cases
from start to finish, had the lowest backlog and the highest percentage of cases finalized within
12 months. Further, over the same period, the Local Court increased its clearance rate from
99% to 102%, which means that it is not only finalizing new cases but also efficiently clearing
old matters as well.32

The Pacific Judicial Development Programme which is funded by the Government of New
Zealand and managed by the Federal Court of Australia studied the issue of court delays and
backlogs in detail in the year 2015.33 On the basis of these studies, the following suggestions
are of relevance. This diagram illustrates the steps suggested.

Step 1: Prepare to Reduce Backlog

31
Id.
32
Ministries Media Releases, NSW Local Court most efficient court in Australia, NSW Government,
https://www.justice.nsw.gov.au/Pages/media-news/news/2015/NSW-Local-Court-most-efficient-court-in-
Australia.aspx (last visited Apr. 10, 2020).
33
Pacific Judicial Development Programme, Reducing Backlog and Delay Toolkit,
http://www.fedcourt.gov.au/pjdp/pjdp-toolkits/Reducing-Backlog-and-Delay-Toolkit.pdf (last visited Apr. 9,
2020).
Problems such as respondents removing themselves from the jurisdiction of courts are common
to most civil judicial systems. The Vanuatu Pilot Project managed to successfully reduce
backlogs by creating a plan to manage them. First, it involved courts consistently
communicating with important stakeholders and receiving valuable input from judges and
lawyers during consultation workshops. Using an external facilitator, the workshop’s
constructive dialogue set the tone for continued co-operation and dialogue about delay
reduction between the court and the law society. During the Pilot Project, judges continued to
meet once per week over lunch at the invitation of the Chief Justice, to discuss the backlog
project and other management matters of the court. Regular staff meetings with court personnel
were held to discuss progress, problems and solutions. These meetings helped motivate and
educate personnel to ensure they understood new concepts and permitted problems to be
discussed and resolved swiftly. Another way that backlogs were efficiently reduced was by
maximising the use of existing technology.

Step 2: Create an Inventory

An inventory is simply a list of every case that is recorded as open and not yet closed. An
inventory is carried out to bring order and insight into the caseload by providing a profile of
the case types, age, status and next actions required amongst other data. Using the same data,
the inventory can be arranged to show the ‘active list’ the ‘inactive list’ and those cases that
should be closed. This resulted in the creation of a priority list involving the following steps –

• Select Case Types

• Make a Master Inventory according to a) case type and age and record: b) docket judge
c) case number d) parties (note gender where possible) e) case title f) date filed g) stage
of case h) last event and next scheduled event with date h) reason for delay (if easily
ascertainable) i) contact information for the parties.
• Estimate and record the complexity of the case - simple, standard, complex.
• Classify if active or inactive - if inactive, why?
• Determine action needed to resolve the case if ascertainable.
• Identify the personnel to conduct the inventory analysis. It is recommended that each
judge and secretary conduct the inventory.
• Where docket judges are not involved, personnel will need to be trained and supervised
and seek agreement of the docket judge before examining files.
 • Review indexes/registers starting with the oldest open case and identify all undisposed
cases for entry on the master inventory list.
• Systematically find each file that is open and cross-reference it to the list.
• Analyse the results.

Step 3: Clear and Create an Active Case List

While preparing this list, it is important to analyse the following parameters could be assessed
to rule out certain issues.

A) Does the court have jurisdiction? B) Are the summonses served in compliance with
procedure? C) Do pleadings comply with the technical rules on the form and substance of initial
pleadings? D) Do filings comply with the prescriptive period for filing a case? E) Is there
compliance with speedy trial or other time related rules? F) Can the case be resolved on the
basis of affidavits? G) Is the case suitable for referral to mediation? H) Have pre-trial
procedures been complied with e.g.: filing of pre-trial briefs?

It is also important for the Court to consider the possibility of potential Alternative Dispute
Resolution options. Where these options are available, full use of should be made of these
programmes for backlog cases to encourage settlement, withdrawal of the complaint or
clarification of the issues in dispute. A time limit should be set for this process so that it does
not contribute to more delay.

Step 4: Intense Pre-trial Management

While dealing with case backlogs, cases must be strategically and separately dealt with. This
has the advantage that new cases do not mix with backlog cases and risking new cases being
delayed. Some steps that can be used in this process are as follows:

1. Engage retired judges and members of the local legal profession to sit as a judge to free a
sitting judge to deal with backlog matters. This has the advantage of developing local talent for
judicial appointments.

2. Procure short-term temporary judicial assistance from other jurisdictions. These “flying
squads” are generally effective, however care is required to ensure that cases do not become
part-heard and judges have to return to complete cases.

3. Promote temporarily judicial officers from lower courts.

4. Extend the powers of Registrars and Masters to relieve judges of administrative duties and
quasi judicial responsibilities.

5. Extend court sitting times to include evenings and weekends.

6. Acquire additional court-rooms by using rooms of other government departments or rent

office space.

7. Dedicate selected court personnel to prepare, manage, organize and monitor backlog cases
in teams.

8. Acquire legal assistance by offering internships for law students.

It also includes holding status conferences and creating individual case resolution schedules;
maximising the use of alternative dispute resolution; intensively managing land matters;
developing a transparent and consistent approach for the prioritisation of backlog cases, and
land cases in particular and re-organising existing resources or acquire additional resources to
focus on backlog cases.

Step 5: List and Hear Trials

This step involves setting firm trial dates and having a strict adjournment policy for each court.

Step 6: Monitor and Report

In this process, regular reports must be provided to the Chief Justice and other senior judges as
well as monthly reports to the Backlog Reduction Team at a quarterly meeting.

It is a fact that tolerating non-compliance breeds more non-compliance. Therefore, courts must
be encouraged to be consequent in relation to each act of non-compliance that is not acceptable.
Here a lack of readiness to proceed on set trial dates, being a major contributor to delay and
being late for court, should be paid particular attention. Some suggested measures include the
following:

a) Rejecting incomplete or non-compliant filings; b) Expressing annoyance on the court record;

c) Seeking an apology; d) Making an “unless” order, for example: “Unless the statement is
filed by the XXX, costs will be payable in the amount of XXX to be made forthwith.”; e)
Moving the case to a special ‘non-compliance list’ overseen by the Chief Justice; f) Dropping
the case to the bottom of the list; g) Cautioning the lawyer in open court in front of the client;
h) Threatening costs against the party; i) Threatening costs against the lawyer personally; j)
Threatening contempt of court proceeding; k) Imposing costs against the party; l) Imposing
costs against the lawyer personally; m) Complaining to the law society and requesting action;
n) Only after other approaches have been tried and in the most exceptional of circumstances,
take action for contempt of court.

Moreover, as a rule, an “equitable and efficient” case assignment system must be adopted.
There can be efficiency advantages gained through the allocation of cases to specialist Judges
who possess an expertise in a field of law and volunteer to do cases in their area of specialty
e.g.: For example, judges may find it useful to specialise in family law or youth matters.

Another important aspect to keep in mind is improving the efficiency of filing systems. For
instance, in the Supreme Court of Vanuatu, the court removed the possibility of files stagnating
in a central file repository by implementing a procedure where all files are allocated
immediately to a judge and that all files are kept in the chambers of the docket judge. The
Vanuatu Supreme Court also developed a special roster of judges for urgent matters and
immediately allocates the files and documents to that judge to avoid delay. Training and
involvement of court staff proved very important in successfully reforming the document and
case flow systems in Vanuatu. Many such measures have also been adopted by Australia and
New Zealand.34

NORTHERN EUROPE – DENMARK, FINLAND, NORWAY AND SWEDEN

In a report prepared by the European Commission for the Efficiency of Justice (CEPEJ)35,
several recommendations were made after analysing policy reports and administrative studies
conducted by the members of the CEPEJ. The following pages contain some of the best
practices adopted in these countries across Northern Europe.

A. SWEDEN

• In Sweden, the National Courts Administration, makes statistical follow-ups on the

basis of average current duration of different cases and on cases older than six and
twelve months. It also helps the courts by producing tools as a support in their
operational planning and follow-up. The courts make their own follow-ups and most of
them report on cases that have been pending for a given length of time. In these reports

34
Id.
35
European Commission for the Efficiency of Justice (CEPEJ), Time Management of Justice Systems: A
Northern Europe Study, https://rm.coe.int/european-commission-for-the-efficiency-of-justice-cepej-time-
managemen/16807882bb (last visited Apr. 9, 2020).
 one can, for example read the reasons for delay. Currently, several trial projects are
implemented on a local level in Sweden, aiming at reducing the length of court
proceedings.
• A particular reason of concern is the huge workload of the “summoning organisation”,
which results from lack of resources. As a consequence, authorities have started to turn
to private services in serving of notices and some Swedish authorities have had very
positive experiences. For example introducing private companies to perform this task
in the Police has resulted in reducing costs. Using fax machines has also worked out.
• All Swedish courts have started to use the new electronic case management system
“VERA”. Through the VERA database, it is possible to combine information for
various different purposes. If one wants to examine the timeframes of proceedings
instead through the time between filing an application for summons and the judgment
a more realistic picture can be obtained.

B. DENMARK

• In Denmark, the most time-consuming phase in civil matters is the preparatory phase,
where parties involved present relevant material. It was found that if the overall
processing times were to be significantly reduced, the amount of preparation time had
to be cut down. For this, the process of “steering judges” has been introduced. Here,
judges began to play an active role and in requests for extension, reasoned and justified
postponements were demanded. The pilot project also aimed at developing forms to
combine written and oral forms of preparation. The written procedure was combined in
courts with direct dialogues and contacts with the parties involved. The employment of
the increased steering measures were not restricted to only one type of a preparation
procedure but could be applied to both procedures. Defining dates for court hearings
and active use of timeframes is especially relevant when the actual time period is
expected to be prolonged, for example because many individual calendars must be co-
ordinated. Stable lines of actions were established and as a basic rule not to allow
adjournments in cases where the timeframes have not been adhered to. Both judges and
lawyers agreed that telephone meetings were especially suitable in preparation of most
general civil matters.
• The Danish National Court Administration has also developed IT-systems that support
case processing in simple matters. This system is used in order to register cases, to
prepare these and also to help deciding a date to the court hearing. The main advantage
 of the system is that by registering special codes for deciding cases and codes for the
sliding scale of cases it is easier to estimate the needed resources in different work
phases. There are also different IT-systems available for different case types. An
important advantage of the system is that it presents, automatically, information of
received matters, decided matters and matters that are pending. The system is connected
to a statistics module in each case handling system. This means that each court can
relatively easily send an electronic file containing six or twelve month statistics to
National Courts Administration. The data can then be quite easily summarised
regarding general courts and district courts.

C. FINLAND

• The Finnish Supreme Administrative Court has set the average processing time to 10
months. In addition, the aim is to process 25% of the cases in less than four weeks and
35% of the cases within 6-9 months. Courts pay special attention to overall processing
times to enhance the processing of cases that have been pending over one year.
• When the matter is pending or in dispute in two Courts, co-operation between different
courts has been called for in order to develop guidelines to establish the best possible
practices. Before the main hearing the judge must ask the parties to express a proposal
for the schedule for the main hearing. The plan must include an assessment of the time
needed for the various stages, for example the time needed for presenting evidence.
The judge must go through the suggested timeframe and if needed modify the plan
with the parties. The time plan will set a binding frame for main hearings.
• The current types of specialisation available for judges can be divided into three
groups. First specialisation carried out by centralising the processing of certain matters
to special courts, secondly centralising the processing of certain matters to one or more
individual courts and thirdly specialisation by centralising proceedings in certain
matters within individual courts. The two first types are related to certain laws or/and
regulations whereas the third type takes place on courts’ own initiative to organise the
proceedings in a way that particular judges specialise in certain matters. Such
specialisation helps retain efficiency and accuracy.
• Finland is now also conducting a videoconferencing pilot project. According to the
legislation, the use of videoconferencing in court proceedings has been allowed since
2002 in Finland. In the district court of Helsinki the experiences of the pilot project
have been positive. Most of the videoconferences held concerned cross border cases
 financed by legal aid. Also the “telephone hearing” is a widely used procedure in
Helsinki district courts.
• Two systems enabling extensive use of IT in written preliminary hearing have been
developed in Finland; the TUO MAS case management system and the SANTRA
electronic transfer system. The courts get about 65% of the applications a year
electronically by way of the SANTRA system. Also electronic mail or fax can be used.
These e-service courts have contributed to lesser disposal time per case.

D. NORWAY

• In Norway, possibilities for simplified registration routines and for other means of
efficiency that could be brought to action by information technology have been
examined and are being explored. Electronic case processing increases efficiency by
“recycling” information and by simplifying routines.
• In Norwegian courts, the cases are often distributed by a fixed rotation system which
means that there is some version of an equal allocation of cases, based on a certain
mathematical formula. However, there were some exceptions made in matters that
were somehow special or exceptional, in situations where the workload of certain
judges had to be taken into account and in cases where the timeframe of a specific
case affected the distribution of duties. The use of the system depends also on the
varying interest and competence of different judges. In order to protect oneself from
suspicions of misuse, the case distributing officials talked about applying the system
also to them if there were no judicial obstacle for it. Such division of tasks has helped
cut time of pendency.

MALASIA

Background

Malaysia shares a lot of similarities with India. It is a middle-income country which became
independent in 1957, adopted a parliamentary democracy following the Westminster model. It
is a former British colony but unlike Great Britain, its federal constitution is the supreme law
of the land, much like India whose constitution in turn influenced that of Malaysia’s. The
judicial system is also similar with respect to the source of laws and the structure. Common
law procedures, which have been developed by the Malaysian courts in accordance with the
local circumstances, are followed; further, even the organization of the courts is unitary, instead
of federal. All of these factors make Malaysia a great example to draw lessons from.36

In the late 1980s, Malaysia’s judiciary faced two difficult decades which challenged its
reputation for probity and speedy delivery of decisions which declined dramatically. In late
2008, Malaysia began a reform program which aimed at reduction of delay and backlog
exercise. Initially, the reform was focused especially on the Civil High Court Divisions in
Kuala Lumpur and Shah Alam but it was later expanded to other High Courts.37 Owing to the
similar background and following the reforms in recent years, Malaysian courts enjoy very low
pendency rate in comparison to Indian courts and has become a good jurisdiction to benchmark
with.

The key components of the program were:

a. Creation of an inventory of cases

b. Purging of “closed cases” and the separation of inactive (hibernating) cases for rapid
closure or further processing (depending on the interest of the parties)
c. Introduction of “Case Management” (Pre-Trial processing of cases by appointing
“Managing Judges”)
d. Introduction of a “Tracking system” to facilitate the closure of older cases
e. Incorporation of an automated Case Management System
f. Creation of new and specialized court divisions such as High Court Civil and
Commercial Divisions to handle more specialized matters
g. Promotion of Mediation and other such measures.

Some of these components have already been incorporated into the Indian judicial mechanism
and are successfully in place, while the rest of the components are something that could be
looked into. These areas have been elaborated upon hereinafter:

a. Incorporation of an Integrated Case Management System (a central database): In 2017,

an Integrated Case Management System of the Supreme Court of India was launched.
The system was aimed to help litigants access data and retrieve information online, a

36
LINN A. HAMMERGREN, JUSTICE REFORM AND DEVELOPMENT: RETHINKING DONOR
ASSISTANCE TO DEVELOPING AND TRANSITIONAL COUNTRIES (2014).
37
World Bank, Malaysia Court Backlog and Delay Reduction Program: A Progress Report,
https://openknowledge.worldbank.org/bitstream/handle/10986/16791/632630Malaysia0Court0Backlog.pdf?seq
uence=1&isAllowed=y (last visited Apr. 10, 2020) [hereinafter Malaysia Report].
 step towards a paperless Supreme Court. This system will help reduce manipulation
and update the progress of the case on a real-time basis. Although it was a laudable
step, it has only been implemented solely for the Supreme Court of India. The system
can be extended to include all the 24 High Courts and the subordinate courts which will
make it easy for the litigants across the country.38
b. Separating Judicial and Administrative functions: The core judicial function of judges
is allocating, listing and deciding of cases and precious judicial time should be strictly
focused on completing core judicial functions.39To enable the same, efficient
administrative functioning is a pre-requisite. Courts require effective and competent
administration which will ensure that processes are followed, documents are submitted
and stored, facilities are managed and so are human resources.
In Indian courts, the administrative responsibility is assigned to the Chief judicial
officer of the court. However, not all judges get adequate support teams or adequate
administrative support which hampers the strictness of the judicial functions as the
focus is repeatedly interrupted. Hence, a dedicated administrative functioning team
(with broad representation from the judiciary) will make time for strict judicial work.40
c. Introduction of a tracking system: A system whereby all the cases could be separated
on the basis of those that can be dealt with just affidavits and those that require full trial.
After which, judges can be assigned to either of the tracks on a weekly basis or so and
a quota of cases can be set which need to be disposed of. Although this doesn’t have to
be similar to what Malaysia has introduced, it has the potential to reduce the backlog
of certain types of cases to a good extent. The system can be best used to separate cases
by the level of effort required for their resolution.41

INDIA

In a democracy, the administration of justice is for the benefit of the citizens, and the lawyers
and judges are important instruments in the fulfilment of that objective. Courts are deemed to
be custodians and protectors of citizen rights. In the words of Justice V. R. Krishna Iyer, ‘The
true conception of the administration of justice is that the lowly concerns of the least person

38
PTI, PM launches Integrated Case Management System of Supreme Court, THE HINDU,
https://www.thehindubusinessline.com/news/pm-launches-integrated-case-management-system-of-supreme-
court/article9690081.ece# (May 10, 2017).
39
Pratik Datta, Towards a Tribunal Services Agency, 8 NUJS Law Review 181, 204 (2015).
40
Pratik Dutta et al., How to Modernise the Working of Courts and Tribunals in India, NIPFP Working Paper
258 (2019), https://www.nipfp.org.in/media/medialibrary/2019/03/WP_2019_258.pdf.
41
Malaysia Report, supra note 2.
are the highest consideration to the state and the court.’ Thus, the judiciary being an integral
part of our democratic system, all the constitutional values and implications must be imported
into the judicial process. In a democratic society, the courts play a crucial role in seeing that
neither license nor absolutism becomes dominant; hence, the various challenges faced by the
judiciary need to be effectively met at the earliest. According to the recent estimates of the
National Judicial Data Grid (NJDG), a total of 24,247,103 cases are pending before various
courts in India, of which 7,815,594 cases are civil in nature and 16,431,509 are criminal cases.42

The 14th Law Commission Report on the Reform of Judicial Administration suggested that
post-independence enormous increase of work for the courts necessitates the need to give more
attention to judicial administration. It also recommended the need for creation of an
independent Ministry of law and justice along with adequate administrative facilities for the
justice department and an increase in judicial strength.

Efforts to improve the administration of justice include creation of National Arrears

Grid/identification of arrear, identification of bottlenecks in crisis area, tackling the bottleneck
areas, adoption of innovative measures for expeditious case disposal, focus on selection,
training and performance assessment of judicial personnel and court management by increasing
the use of technology and management methods, uncluttering the system, procedural changes
etc.

The development of infrastructure facilities for the judiciary is being facilitated by the
Department of Justice. On account of concerted efforts by the state and central governments,
the availability of judicial infrastructure for subordinate courts has increased considerably in
the recent past. The Eleventh Finance Commission recommended a scheme for creation of
1,734 fast-track courts (FTCs) in the country for disposal of long-pending sessions and other
cases. The Ministry of Finance sanctioned an amount of ₹5.0290 billion as ‘special problem
and upgradation grant’ for judicial administration. The Ministry of Finance released funds
directly to the state governments under the scheme of FTCs. The central government is
implementing the eCourts Project in a mission mode since 2007. The eCourts Mission Mode
Project envisages enhanced ICT enablement of a court through universal computerization, use
of cloud computing, digitization of case records and enhanced availability of e-services through
e-filing, e-payment gateways and mobile payments.

42
http://njdg.ecourts.gov.in/njdg_public/main.php (last visited Mar. 2, 2017).
Many legislations with the passage of time have become redundant and obsolete, and to bring
in clarity and certainty, these legislations need to be repealed. In recent years, almost 1,200
legislations have been repealed by the Parliament and another 415 are in the process of repeal.43

The necessity of framing an NLP was recognized in the ‘National Consultation for
Strengthening the Judiciary towards Pendency and Delays’. In the consultation, it was
recognized that the government is the biggest litigant; hence, conscious efforts are required to
be made to reduce the number of government litigations. The Ministry of Law and Justice
proposed the formulation of an NLP to ensure the practice of responsible litigation by the
central government. The state governments were also encouraged to frame their state litigation
policy. In 2010, the Department of Legal Affairs framed the NLP and launched it on 23 June
2010 which recognized government as the biggest litigant in the courts and tribunals.44 The
policy aim was to make government an efficient and responsible litigant by cutting down on
unnecessary and vexatious litigations by government departments. Conscious efforts are
required to be made by government departments to reduce repeated making of appeals. At
present, a new NLP is being drafted and is likely to be implemented soon.

On the recommendations of the Supreme Court in Salem Bar Association v. Union of

India,45 a committee was appointed to study the application of a case flow management system
in India, and accordingly a draft rule known as the ‘Case Flow Management Rules for High
Courts and Subordinate Courts’ was prepared.46

IRELAND

Legal proceedings in the civil courts in Ireland have historically had a poor reputation for
delay. The time limits provided by the Court rules, unlike in England and Wales, are regularly
ignored without serious consequences. Applications to strike out proceedings because of delay
are often brought by frustrated defendants. Where the decisions are appealed, these are now
heard by the Court of Appeal. Prior to October 2014, parties often waited more than four years
for an appeal to be heard by the Supreme Court. There was a certain irony where appeals were
brought in cases alleging delay in the proceedings. However, the new Court of Appeal is now
starting to deal with the backlog. The Judges are adopting an approach which has led to some

43
All India Judges’ Association v. Union of India, (2002) 4 SCC 247.
44
Department of Justice, Status Note on National Litigation Policy,
http://lawmin.nic.in/la/status%20note%20on%20nlp.pdf.
45
Salem Bar Association v. Union of India, AIR 2003 SC 189.
46
Consulting Paper on Case Management,
http://lawcommissionofindia.nic.in/adr_conf/casemgmt%20draft%20rules.pdf.
viewing the Court as a “colder place” than the Supreme Court. However, this does not mean
that all cases are automatically struck out where there was found to be “inordinate and
inexcusable delay”.47

THE PROBLEM OF DELAY IN THE CRIMINAL COURTS:

The Rape Crisis Community has for decades witnessed first-hand the detrimental impact of
delays in the legal system on victims of sexual violence. We have also witnessed the impact of
delays on attrition rates when supporting victims who decide that they can no longer be
involved with the legal system as the personal cost is too high.

Recommendation 22 of “Rape and Justice in Ireland” (RAJI) (2009) states: “With regard to
every stage of the process, but particularly once the case is returned for trial, every possible
means of reducing delay should be explored and pursued where appropriate. It is recommended
therefore that the National Crime council research recommendations of delay set out in this
report are followed.”

Two major studies in the last decade have both identified serious delays in our criminal courts
as a significant problem: RAJI, referred to above (2009), and the National Crime Council
Report (2006)48. Since then, it appears that there has been some improvement in the waiting
times from return to the Central Criminal Court to trial, but the most up to date available data
tells us that the problem of delay is still very much with us49.

As its authors point out, the National Crime Council Report recommended that the overall
delay from initial arrest to return for trial should be no longer than 54 weeks ordinarily, with
no more than six months from return for trial to the start of the trial itself.

These reports refer only to the first time that a case is listed for trial. However, it is the
experience of victims, their supporters, criminal lawyers and Court Service staff alike is that
cases are often listed more than once for trial. There are no recent published figures which set
out the average number of times a case is listed for trial, or which tabulate the recorded reasons
for these relistings. The problem is nevertheless real and widespread, and presents continuing

47
https://www.mhc.ie/latest/insights/insurance-law-update-is-the-irish-court-of-appeal-becoming-stricter-on-
delay.
48
The Report of the National Crime Council, An Examination of Time Intervals in the Investigation and
Prosecution of Murder and Rape Cases in Ireland from 2002-2004 (GPO, 2006),
http://www.crimecouncil.gov.ie/downloads/Time_Intervals_Research.pdf.
49
“Rape and Justice in Ireland”, Rape Crisis Network Ireland, 334-35 (2009).
difficulties for victims of sexual crime, their family, friends and other supporters, other
witnesses, Court Services staff, actual or prospective jury members, and of course, for our
judges. Sometimes, of course, a late adjournment or postponement is unavoidable.

These delays have important additional consequences, as it is clear from the available research
that they contribute to the attrition of rape cases from the criminal justice system. As the authors
of “Rape and Justice in Ireland” report, “….three‐quarters of withdrawn cases, originally
directed ‘prosecute on indictment’, were withdrawn after two years or longer…”.

The analysis of the primary stated reasons for withdrawal before trial includes a figure of
almost 20% for “did not want to attend court”, and the analysis of secondary reasons reveals
that 20% of respondents stated “want to move on” as a reason why they were withdrawing
from the case. RCNI’s (Rape Crisis Network Ireland) view is that these are two reasons which
are likely to increase as the delay lengthens before the case comes to trial.

To help reduce these delays, and therefore the additional stress and trauma they cause to
victims, RCNI proposes an organised system of case management and pre-trial hearings in
order to prevent as far as possible late, unnecessary and avoidable adjournments and
postponements which result in cases having to be sent back through the listing system, as this
recycling process can add substantially to the overall delay before a case is heard.

Case Management refers to the supervision by a judge of the overall conduct of a criminal trial,
including the determination of certain administrative and discrete legal issues by pretrial
hearing, in such a way as to improve the administration of justice generally while having regard
of course to the paramountcy of the rights of the accused, as well as to the rights of others
concerned.

Pre-Trial Hearing refers to a pre-trial court appointment where administrative matters and
certain discrete legal issues are settled as far as possible in advance of a criminal trial by the
trial judge, so as to increase the overall efficiency of the trial itself, in a manner which is
compatible with the paramountcy of the rights of the accused, and indeed, with the rights of
others concerned in the criminal justice process. The administrative matters include such things
as availability of witnesses, estimated length of the trial, practical arrangements re
communications technology, need for any interpreters, and so on. The discrete legal issues
include e g, issues in relation to the validity of any warrant, whether there are any admissions
of fact, any witness statements which can be read out, applications to sever an indictment, and
disclosure. Neither list is intended to be read as exhaustive. Note that many matters, especially
administrative ones, are capable of agreement pre-trial between the parties, and that a Pre-Trial
Hearing system provides a convenient early focus point for such agreements to be made and
recorded.

Such a system would provide significant additional benefits, including greater clarity and focus
on the relevant issues in the trial, shorter and more cost-effective trials, more effective
administration of justice, and greater public confidence in the criminal justice system. Of
course, reduction of delays after return for trial also depends on the availability of sufficient
numbers of judges, essential Court Services staff such as Registrars, and court rooms to
accommodate hearings in a timely and efficient manner. Shortages of judges, support staff and
court rooms can be solved by appointing more judges and by allocating enough money to allow
them to carry out their judicial functions.

The RCNI sees Case Management and Pre-Trial Hearings as important to the improvement of
the criminal justice system experience for survivors of sexual violence. The reasons are
manifold:

1. To reduce additional stress and trauma to survivors and their supporters arising from
avoidable delays before and during criminal trials, as far as possible, by reducing delays
before trials are heard, and eliminating, where possible, or where not, reducing delays
during trials;
2. To reduce additional stress and trauma to survivors and their supporters arising from
the continuing uncertainty before criminal trials, as far as possible, about specific issues
such as the timing of the trial, its length, whether there will be more than one trial, and
so on;
3. To reduce the number of times cases are listed for full hearing, are not effective because
of issues which could have and should have been resolved well before that date, and
are then recycled through the listing systems for another full hearing;
4. To reduce the number of cases which are lost to the criminal justice system as delays
extend; To provide juries with an uninterrupted flow of evidence, by eliminating where
possible the need for interruptions in the course of the trial arising from legal arguments
in their absence; To narrow the issues and improve presentation of cases, thereby
5. Improving the quality of justice for survivors of sexual violence in our criminal courts,
Upholding the public interest in the running of fair, timely, efficiently- run trials, and
improving public confidence in the criminal justice system as a result;
 6. Reducing the number of cases which are appealed,
7. Reducing costs to the public purse of these avoidable delays.

Such a system would provide significant benefits, to include a greater clarity and focus on the
relevant issues in the trial, shorter and more cost-effective trials, an augmentation of the
effective administration of justice, and greater public confidence in that administration. It is
clear that Pre-Trial Hearings, as part of a Case Management system based on statute and
underpinned by detailed Rules, with appropriate safeguards, can function without any
undermining of the Constitutional and Convention rights of the accused to a fair trial. It is also
clear that the cost savings could be made to our legal system through much greater efficiency
and the demonstrated successes in other countries.50

Courts have the right to strike out proceedings for want of prosecution:51
While there is a legislative basis for this power contained in Order 27 rule 1 and Order 122
rule 11 of the Rules of the Superior Courts, the courts also have an inherent jurisdiction to
strike out proceedings for want of prosecution.
The test under which the courts exercise this jurisdiction was initially set out by Finlay P on 31
July 1979 and was approved by the Supreme Court in the 1994 case of Primor plc v. Stokes
Kennedy Crowley.
The basics principles are as follows:

1. The delay must be inordinate and inexcusable.

2. If inordinate and inexcusable the court must in its discretion decide that the balance of
justice lies in favour of the case not proceeding.
The courts will look at any relevant factors in particular any delay on the part of the defendant
and whether the delay prejudices the defendant or creates a risk that it is not possible to have a
fair trial. It is important to note that fault on the part of the plaintiff is not essential.
Despite the Supreme Court’s endorsement of this test such orders were granted sparingly by
the courts. However, there appears to be a shift in the willingness of the courts to strike out
cases for want of prosecution as illustrated in the recent case of Brian Maxwell v. Life
Assurance plc and John Fallon. This case concerned an action against an insurance company
for specific performance of an insurance contract. Despite the fact that the motion to dismiss
for want of prosecution was served within a year of the Plaintiff seeking voluntary discovery

50
https://www.rcni.ie/wp-content/uploads/RCNICaseManagementandPreTrialHearingspositionpaperMay12.pdf.
51
https://hayes-solicitors.ie/News/-To-Delay-Justice-Is-Injustice----Even-If-It-s-Not-Your-Fault.
the court ordered that the case be struck out for want of prosecution. The First Named
Defendant identified three specific periods of delay: three years from delivery of letter denying
liability to issue of proceedings, 22 months from delivery of notice for particulars to delivery
of replies to particulars and two years from delivery of replies to particulars to delivery of letter
seeking voluntary discovery.
The court deemed the appropriate standard for examining whether delay was inordinate was
by reference to ordinary standards of litigation. The court focused on the periods of delay from
issue of proceedings and found them to be inordinate.
The Court then examined whether the delay could be excusable and whether there was a
reasonable or credible explanation for the delay. The Plaintiff’s replying affidavit set out a
number of excuses for the post-commencement delay including; a change in Plaintiff’s
solicitor, an erroneous belief that a defence had not been served when it in fact had (the defence
was mislaid), delay in advice on proofs from counsel and even staff holidays! The Court found
none of the excuses offered to be persuasive and found that the post-commencement delay was
inexcusable.
The court in examining whether the balance of justice lay in favour of granting of the order
identified two issues to be examined: (1) anything which militates against the court exercising
its discretion and (2) potential prejudice to the Defendants’ capacity to defend the action in a
way that a fair trial could not now be held.

The Plaintiff alleged delay and acquiescence on the part of the Defendants. The court found
the longest period of delay was four months and attributed little weight to same.

With regard to prejudice to the Defendants the Court focused on three issues:

1. A phone call alleged to have taken place between the Plaintiff’s wife and the Second
Named Defendant in September 2004. There was no note evidencing this call and so its
contents and indeed whether the call took place would be a matter of significant dispute.
2. Whether at the time the Second Named Defendant was aware of the Plaintiff’s family
medical history. This would involve an examination of the Second Named Defendant as
to knowledge he allegedly possessed some 10 years before. This would be extremely
difficult to prove in the absence of documentary evidence of which there was none.
3. The availability of the Plaintiff’s medical records. The Plaintiff claimed the records were
likely still available but had not taken up copies of same.
The Court focused on the potential issues arising from the phone call. The call is alleged to
have taken place some 10 years before the motion issued on an unspecified date in September
2004. The court acknowledged this call was central to the defence and acknowledged the
potential difficulties in defending an action which hinged on whether a phone call was made
on an unspecified date more than ten years prior to the date of trial. It is accepted that where
matters at issue are not, or are not fully, covered by documentary evidence, there is a greater
likelihood of prejudice resulting from the delay. The court accepted striking out a motion for
delay was a draconian step however they deemed it appropriate in this case due to the potential
prejudice to the Defendants’ ability to defend the proceedings.
In examining excuses for the delay the court made it clear that while it was suggested that the
delay could have been blamed on the Plaintiff’s legal team, they must be viewed as being within
the Plaintiff’s control. Therefore, it is essential that all Plaintiffs remain in regular contact with
their legal team to ensure their case is being progressed in a timely manner or they could face
their claim being struck out for want of prosecution.

In coming to its decision, the court proceeded by reference the principles found in the Court of
Appeal judgment in Farrell v. Arborlane Limited and Others52. A court must ask three
questions when considering a strike out application such as this. They are as follows:

1. Has there been an inordinate delay in progressing the proceedings?

2. Is there a reasonable excuse for the delay or is it inexcusable?
3. In the circumstances presented before the court, where does the balance of justice lie?

Applying this three-part test to the facts at hand, the court decided that there was an inordinate
delay in the proceedings, that the delay was inexcusable and there were no factors to suggest
that the balance of convenience would favour the plaintiff. Accordingly, the court granted the
application and struck out the proceedings.

The High Court handed down judgment two months earlier in the similar case of Noel
Mulligan v. Wilkie and Flanagan Solicitors. It was also a professional negligence claim
against a firm of solicitors.

Proceedings were issued in March 2011 and a defence was delivered in May 2014. The
plaintiff failed to make adequate discovery despite motions and reminder letters, the last of
which was sent in September 2016. The plaintiff did not dispute that there had been inordinate

52
Farrell v. Arborlane Limited & Others, [2016] IECA 224.
and inexcusable delay. The sole issue for the court to decide was where the balance of justice
lay. In deciding that it lay in favour of the court granting an order dismissing the proceedings,
the court was influenced by various factors including the prejudice suffered by defendant
because almost six years had elapsed since the alleged negligence without any intimation of a
claim. 53

Ireland also provides for pecuniary and/or non-pecuniary damage caused by excessive delay.
They may also allow disciplinary action in some instances.54

SINGAPORE

The goals of all ASEAN member states are to “accelerate economic growth, social progress
and cultural development” and “promote peace and stability” in the region.55 To achieve these
goals, the public will need to trust and respect the Judiciary. Such trust and respect can be lost
if there are inefficient practices that result in delay in the courts.56 The Singapore Judiciary is
presently lauded for “its efficiency, its technological sophistication, its accessibility and the
confidence of Singapore’s citizens and businesses in the system.”57 The World Economic
Forum has also ranked Singapore first (out of 142 countries) in recognition of Singapore’s
efficient legal framework for settling disputes.58 These accolades were only possible because
of the collective efforts of all the relevant stakeholders to constantly improve our legal system.

The picture in Singapore slightly over two decades ago was different. Courts suffered from
delays in the hearing of cases, and a backlog of cases accumulated.59 One possible cause for
these delays and the case backlog was the increasing volume and complexity of commercial
cases coming to the courts arising from rapid globalisation in the late 1980s to the 1990s.

Unfortunately, the then-existing system of judicial administration was not designed with the
fast-changing landscape in mind and it struggled to cope. By the end of September 1990, “there
were still 1,963 suits begun by writ and 108 admiralty suits which were awaiting hearing dates

53
https://www.lkshields.ie/news-insights/publication/striking-out-proceedings-for-delay-a-new-approach-by-
the-irish-courts.
54
The length of civil and criminal proceedings in the case-law of the European Court of Human Rights, Council
of Europe Publishing, https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-16(2007).pdf
55
The ASEAN Declaration (Bangkok Declaration), 8 August 1967.
56
Sir Jack Jacob, The Reform of Civil Procedure Law and Other Essays in Civil Procedure, (London Sweet &
Maxwell: 1982), p 2.
57
Waleed Haider Malik, Judiciary-Led Reforms in Singapore: Framework, Strategies and Lessons, (World
Bank, 2007), p 1.
58
Global Competitiveness Report 2011-2012 (last accessed 2 February 2012).
59
Michael Khoo, “Procedural Reforms on Court Congestion in Singapore”, [1981] MLJ cxi-cxv and Errol Carl
Foenander, “Administration of Justice in the Subordinate Courts in the 1990s”, (1990) 2 SAcLJ 209.
in the High Court”.60 Some of these cases had been set down for hearing as early as 1982. It
was then estimated that up to five years was needed before these cases could be disposed of.

To address the case backlog, the Singapore Judiciary implemented a host of measures in the
1990s aimed at eliminating “court congestion and excessive delay[s] in the resolution of …
cases”.61 These included initiatives in case management, change management, and procedural
reforms. These phrases would be known and familiar to many. In Singapore’s search for
solutions, we have come up with a unique “toolbox of techniques”, which can be classified
broadly into four categories, viz, diversionary, facilitative, monitoring and control, and
dispositive measures.62

THE MODELS OF CASE MANAGEMENT:

“Active case management” commonly refers to the various systems and processes employed
by court or tribunal officials to assume close supervision and control12 (both via judicial orders
and administrative measures) “over the litigation process than is traditionally associated with
common law litigation”.63

Active case management” is the comprehensive system of management of the time and events
in a lawsuit as it proceeds through the justice system, from initiation to resolution. The two
essential components of [active] case management systems are the setting of a timetable for
pre-determined events and the supervision of the progress of the lawsuit through its timetable.64

Active case management covers a wide range of possible approaches and methods, such as
harnessing the benefits of technology and information to “manage the life cycle of a case” more
effectively.65 The goals of active case management include “timely disposition” of each
individual case, “enhancement of the quality of the litigation process”, ensuring “equal

60
Yong Pung How, Speeches and Judgments of Chief Justice Yong Pung How, (Law & Tax: 1996), at p 26.
61
Fern M. Smith, “Case Management”, http://lawcommissionofindia.nic.in/adr_conf/FERN%20SMITH%20-
%20%20CASE%20MANAGEMENT7.pdf.
62
Chief Justice Chan Sek Keong, “Pursuing Efficiency and Achieving Court Excellence – The Singapore
Experience”, 12-16 June 2011, Seoul, South Korea, at para 4.
63
Scott, “Caseflow Management in the Trial Court” in Reform of Civil Procedure (Clarendon Press: 1995)
(Zuckerman and Cranston ed), at p 2.
64
Case Flow Management: An Assessment of the Ontario Pilot Projects in the Ontario Court of Justice, A
Report to the Courts Administration Division of the Ministry of the Attorney General, November 1993, p 4,
cited in Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the civil justice system in
England and Wales (June 1995), p 30.
65
Chief Justice Chan Sek Keong’s paper delivered at the 14th Conference of Chief Justices of Asia and the
Pacific (see supra note 10), para 1.
treatment of all litigants” and instilling “public confidence in the court as an institution”.66 In
order to achieve these goals, there must be proactivity, timeliness and fairness. From reflecting
on the reforms introduced in Singapore and other jurisdictions, it is possible to distil a few
possible case management models.

THE CLASSICAL MODEL

At one end of the scale lies the classical “non-interventionist” model, in which the Judiciary
plays no role or, at most, a very minor role in case management. In such a “somnolent regime”,
the progress of cases is entirely dependent on the initiative of the parties or their lawyers. The
court’s primary task is to decide the cases whenever they are ready for hearing. The Summons
for Directions is probably the only time the court takes stock of preparations for trial.67

This model is based on the premise that parties have the correct incentives to advance their
cases, as they would be in the best position to know what they need.68 Essentially, the court
sits as a passive umpire69 and only intervenes on its own motion in the most egregious cases
where justice delayed amounts to justice denied. Apart from such egregious cases,
considerations of timeliness and efficiency do not generally come into play and the courts
refrain from acting on their own motion to avoid being seen or perceived as behaving contrary
to the “adversarial system” which, in common law jurisdictions at least, is regarded as the best
means of achieving justice.

Under this classical model, case statistics are of little utility because no active case management
is involved. Without a concrete and well-defined role for the court (and conceptual
underpinning for such a role) in managing cases, there is no general need to have regard to
timelines and disposal rates.

THE FACILITATIVE MODEL

Moving up along the scale, we have a system where the court plays a larger facilitative role in
managing cases. Unlike the classical (non-interventionist) model, parties do not have free rein
over the conduct of their disputes. Instead, the court will help the parties to crystallise the issues
in dispute and provide a set of initial instructions to reduce unnecessary interlocutory

66
Maureen Solomon and Douglas Somerlot, Caseflow Management in the Trial Court: Now and for the Future,
(American Bar Association: 1987), p 5.
67
Singapore Rules of Court, (Cap 322, R 5, 2006 Rev Ed), O. 25.
68
Jacob, The Fabric of English Civil Justice, (Stevens & Sons: 1987), at pp 15-16.
69
Marvin Frankel, “From Private Fights Toward Public Justice”, (1976) 51 N.Y.U.L. Rev. 516.
proceedings and to minimise delays and their attendant costs. The aims of this model are
typically achieved by holding one main pretrial conference or case management conference at
a certain stage of the proceedings to establish a set of comprehensive timelines for completing
various key pre-trial milestones. Thereafter, the onus is on the parties to abide by or enforce
these timelines, as the case may be.

One advantage of this facilitative model is that it has room for flexibility. The parties are free
to vary or modify any directions or timelines given at the first pre-trial conference, so long as
the case is ready for trial at the stipulated date, usually, the date of the last pre-trial conference.
On the other hand, absent the conditions that are vital to its success, the facilitative model
would hamper case management efforts. Allowing ample time before convening the first pre-
trial conference, may lead to parties delaying their preparations or doing nothing before the
first pre-trial conference. This would then mean unnecessary delays that will detract from the
“just, expeditious and economical disposal”70 of proceedings.

THE POLICEMAN MODEL

The court will hold regular pre-trial conferences to monitor and give directions to ensure that
cases move along at an acceptable rate. The court is given the broadest power and discretion in
this regard.71 The court can give directions on its own motion and impose harsh sanctions.72
Before each pre-trial conference, lawyers and parties are expected to complete all the necessary
pre-trial preparations required to move the case to the next milestone. At the pre-trial
conference, lawyers will then have to update the court on the status of the proceedings,
including what steps the parties have taken and what steps they will be taking. For example,
lawyers would be expected to alert each other of possible interlocutory applications their clients
wish to file and make attempts to resolve the issues before taking out a formal application, if
that becomes necessary. As another example, after the exchange of affidavits of evidence in
chief, parties would be expected to make arrangements for their expert witnesses to meet to
crystallise or narrow the technical issues in dispute. By actively policing the progress of cases,
the courts keep the lawyers and parties on their toes and ensure that there are no undue delays.

70
Singapore Rules of Court, O. 25, r. 1 and O. 34A, r. 1.
71
Singapore Rules of Court, supra note 20, O. 34A, r. 1.
72
Syed Mohamed Abdul Muthaliff and another v Arjan Bhisham Chotrani [1999] 1 SLR(R) 361, at [10], [12] –
[14]. Re Jokai Tea Holdings Ltd [1992] 1 W.L.R. 1196, Lea Tool & Moulding Industries Pte Ltd (in liquidation)
v C.G.U. International Insurance Plc (formerly known as Commercial Union Assurance Co. Plc) [2000] 3
SLR(R) 745 and Wellmix Organics (International) Pte Ltd v. Lau Yu Man [2006] 2 SLR(R) 117.
The “policeman” model has the merit of allowing the court to take preventive action against
non-compliance with directions or take remedial steps when directions are breached, thereby
minimising the chances of there being a delay in proceedings.

The extent of the court’s involvement in case management increases as we move from the
classical model to the policeman model. Such active participation and intervention may be
supported by the interest the public has in ensuring that justice is fairly and properly
administered to ensure the timely disposal of cases. In this regard, the courts must not only bear
in mind the interests of the parties to the litigation, but also have to ensure that the public
interest is protected.73

DIFFERENTIATED CASE MANAGEMENT MODEL

The DCM model recognises that different “cases differ substantially in the time required for a
fair and timely disposition” and hence should be subject to different “processing
requirements”.74 Some cases may require only very little discovery, and, because of their
straightforward nature, pre-trial applications can be resolved speedily. Others may require the
court to supervise the pre-trial process more extensively as there may be difficult issues relating
to third party discovery, joinder of additional parties and exchange of forensic and expert
evidence. DCM therefore involves the “[c]reation of multiple tracks or paths for case
disposition, with differing procedural requirements and timeframes geared to the processing
requirements of the cases that will be assigned to that track”.

MEASURES TAKEN TO IMPROVE THE LITIGATION PROCESS IN SINGAPORE:75

It is important to highlight that Singapore’s approach is but one possible approach towards
solving the problem of case backlog. Any reform must be grounded in the local legal culture
and socio-economic environment. In the case of Singapore, the Judiciary led the reforms but
chose to do so in an incremental manner that was targeted at achieving desired practical
outcomes.

73
Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673 at [39] (followed by Justice Chan Seng Onn in Singapore
Investments (Pte) Ltd v Golden Asia International (Singapore) Pte Ltd [2009] 4 SLR(R) 291 at [3]).
74
Sackville AO, “The future of case management in litigation”, (2009) 18 JJA 211, at p 213, and Caroline
Cooper, Maureen Solomon, and Holly Bakke, Differentiated Case Management: Implementation Manual 21, p
1, (last accessed 2 February 2012) (“Cooper, et al”).
75
The specific measures detailed in this paper have previously been presented in Chief Justice Chan Sek
Keong’s paper delivered at the 14th Conference of Chief Justices of Asia and the Pacific and the speeches of
Justice Judith Prakash, “Making the Civil Litigation System more efficient”, 17 October 2007 and “Making the
Civil Litigation System more efficient”.
DIVERSIONARY MEASURES

The first tool in Singapore’s toolbox may be described as diversionary simply because the aim
is to divert disputes from full-blown litigation. In brief, this is achieved through the use of, inter
alia, alternative dispute resolution (“ADR”), pre-action protocols and extra-judicial resources.

Singapore actively supports and promotes the use of ADR for a variety of reasons, chief of
which is that certain disputes are more appropriately resolved in alternative fora where
outcomes can be achieved that go to the heart of the parties’ dispute. Additionally, even if ADR
does not result in a full and final settlement of all the disputes between the parties, the process
on its own would still have benefited the parties because it may have narrowed the disputed
issues, compelled parties to consider their options and alternatives (including whether the
possible benefits of pursuing litigation would outweigh the costs) or, at the very least, allowed
for some venting of pent-up emotions.

When it comes to arbitration, the Singapore courts have developed a jurisprudence that, on the
whole, supports arbitration by giving full effect to party autonomy and keeping curial
intervention with arbitration proceedings to a minimum.76 In addition, bodies, such as the
Singapore International Arbitration Centre, exist to promote and encourage arbitration both
locally and internationally, and other bodies, such as the Singapore Institute of Arbitrators,
focus on promoting domestic arbitration.77

As for mediation, the Singapore Mediation Centre (“the SMC”) was established in 1997 to
provide and promote mediation services. The court may, in exercising its discretion as to costs,
take into account the parties’ conduct in relation to any attempts to resolve the matter by
mediation or other means of dispute resolution.78 In the Singapore Supreme Court, our practice
during pre-trial conferences is to actively encourage parties to attempt mediation in appropriate
cases, and to give a reasonable opportunity and timeframe for parties to do so. In particular,
our experiences suggest that cases involving family law issues (such as division of matrimonial
property, maintenance and custody) or which have a relational element (such as commercial or

76
PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR(R) 597; NCC International AB v.
Alliance Concrete Singapore Pte Ltd [2008] 2 SLR(R) 565; CRW Joint Operation v. PT Perusahan Gas Negara
(Persero) TBK [2011] 4 SLR 305; AJU v AJT [2011] 4 SLR 739.
77
Justice Judith Prakash’s paper, “Making the Civil Litigation System more efficient”, delivered to the delegates
at the Asia Pacific Judicial Reform Forum Round Table Meeting in Singapore on 21 January 2009 (supra note
46), para 13.
78
Singapore Rules of Court, supra note 20, O. 58, r. 5(c).
other disputes between relatives, business partners or parties with a pre-existing relationship)
may be appropriate for encouraging mediation.

ADR is promoted just as vigorously in the Subordinate Courts of Singapore. In May 2010, the
Subordinate Courts issued a Practice Direction (“PD”) to encourage greater use of ADR.79 This
PD requires all parties to submit an ADR status form to the court at the Summons for Directions
stage. Thereafter, the Subordinate Courts will make a recommendation on the most appropriate
form of ADR for the case in question, be it mediation, arbitration, neutral evaluation80 or
adjudication. The effect of the ADR status form and the court’s recommendation is to facilitate
the parties’ serious consideration of ADR, although the ultimate decision on whether or not to
attempt ADR remains with them. If the parties decide on attempting mediation, this may be
conducted by a judge from the Subordinate Courts, thus saving time and costs for the parties.
It has been observed that since the implementation of this PD, the number of cases referred to
court mediation from pre-trial conferences has more than doubled.81

Apart from the courts, other extra-judicial bodies exist as avenues for ADR. One such body,
initially designed to handle disputes between consumers and financial institutions (including
insurance companies and banks), is the Financial Industry Disputes Resolution Centre
(“FIDReC”). More recently, FIDReC has also mediated motor accident cases where no
personal injuries are involved. For the financial year 2010/2011, FIDReC successfully resolved
a total of 1,743 cases, thus diverting this substantial caseload away from the courts.82 New and
targeted mediation schemes have also been developed for certain types of disputes. For
example, the SMC has separately collaborated with the Ministry of Health, the Singapore
Medical Council, the Council for Estate Agencies, and the Council for Private Education to
establish bespoke mediation schemes.83 This array of schemes enables individualised treatment
of disputes and facilitates their efficient and effective disposal without any increase in the
caseload of the courts.

FACILITATIVE MEASURES

79
ePractice Direction No. 2 of 2010, available at (last accessed 2 February 2012).
80
Neutral evaluation was introduced in the Singapore Subordinate Courts in 2011 via Registrar’s Circular No. 3
of 2011, (last assessed 2 February 2012),
81
Subordinate Courts Annual Report 2010: Access to Quality Justice,
https://www.supremecourt.gov.sg/publications/annual-reports.
82
FIDReC Annual Report 2010/11, Resolving Financial Disputes since 2005 (last accessed 2 February 2012).
83
Welcome Address by Justice Belinda Ang, Chairman, Singapore Mediation Centre ("SMC") at SMC’s
Annual Appreciation Lunch & Launch of the Singapore Mediation Charter (9 Sept 2011) at para 9, (last
accessed 2 February 2012).
One step that any Judiciary may take in order to prevent or ameliorate the problem of a backlog
of cases is to improve the “supporting infrastructure” for disposing of cases.84 This may be
done, inter alia, by allocating more resources to case management or streamlining certain court
processes.85 One necessary measure that Singapore undertook to combat the backlog problem
in the early 1990s was to appoint more adjudicators. The importance of having a sufficient
number of judges to hear the usual quantity of cases filed in court each year goes without
saying. Temporary increases in caseload, however, may not warrant a permanent increase in
the size of the Judiciary. In order to “facilitate the disposal of business in the Supreme Court”,86
Judicial Commissioners were appointed to the Bench. These Judicial Commissioners are senior
lawyers appointed for fixed terms. They may come from the Bar, academia, or the Singapore
Legal Service. During their terms of appointment, they may exercise the powers and perform
the functions of a Judge of the High Court in respect of such classes of cases as the Chief Justice
may specify. After which, they may return to their previous careers.

An optimal-sized team of administrative staff is equally important as the availability of Judges

and judicial officers. To this end, in 2011, the Supreme Court of Singapore successfully
implemented a new scheme, called the Case Management Officer Scheme (“CMOS”),87 as part
of its continuing drive to achieve excellence in court administration. Under CMOS, court staff
handle all matters relating to the cases assigned to them, from the time the cases are commenced
to the time the cases are disposed of. Previously, their role was limited to dealing with specific
and discrete processes at one particular stage of a case (eg, issuing court documents or checking
draft orders of court). The Case Management Officers are now able to provide better service to
the public because they are familiar with the overall progress and life cycle of the cases
assigned to them. They are also involved in tracking timelines, ensuring compliance with court
orders and directions, providing case updates and lending administrative support to move
proceedings along. In the end, the Supreme Court Registry’s capability to meet the increasingly
demanding information requirements of modern times is strengthened.

84
Justice Judith Prakash’s paper, “Making the Civil Litigation System more efficient”, delivered to the delegates
at the Asia Pacific Judicial Reform Forum Round Table Meeting in Singapore on 21 January 2009 (supra note
46), para 20.
85
Ibid.
86
Constitution of the Republic of Singapore, Art 94(4).
87
Singapore Supreme Court Annual Report 2009, Foreword by the Registrar, available at (last accessed 2
February 2012) and Singapore Supreme Court Annual Report 2010, Foreword by the Registrar (last accessed 2
February 2012), https://www.supremecourt.gov.sg/publications/annual-reports.
The rules governing court procedure must also be designed to facilitate the timely disposal of
cases. Unlike the United Kingdom, the applicable rules in Singapore were not reformed in one
“Big Bang”.88 Instead, numerous incremental changes were introduced from 1990 to remove
certain outdated processes, streamline other processes and generally improve the efficiency and
effectiveness of the Rules of Court.89 For instance, we introduced pre-trial conferences as a
forum for dealing with case management issues. To take another example, we also amended
the Rules of the Supreme Court (as they were known then) to require that parties in civil trials
adduce their evidence-in-chief by way of affidavits.90 This initiative takes the form of witness
statements in some common law jurisdictions. The use of such affidavits cuts down
considerably the time required for trials because cross-examination can commence almost
immediately after the trial begins. The requirement for affidavits of evidence-in chief is one
instance of the increasing significance of written advocacy in modern litigation.

MONITORING AND CONTROL MEASURES

It is important in the context of quality management, that which can be measured must be
improved. Which is measured and consistently monitored for follow-up action can be improved
exponentially. It is important that cases that have come into the court system do not remain
there for an unduly long time. In this respect, the Singapore Supreme Court has set itself the
target of disposing of 85% of all writ actions within 18 months of filing. This is not an easy
target to meet. Nevertheless, the 85% standard is still reasonable because it allows for the courts
to give complex cases some leeway while still ensuring that the majority of the cases does not
drag on unnecessarily. With constant monitoring and the concerted efforts of all stakeholders,
we have consistently exceeded this target. In 2008, 88% of our cases complied with the 18-
month benchmark and in the years 2009, 2010 and 2011, our compliance rate was 89%. The
85% benchmark is effective because it motivates and sets the expectation in lawyers, litigants,
Judges, judicial officers and court staff alike that all but the most exceptional cases should be
disposed of within 18 months.

88
Rules of the Supreme Court with the Rules of the Subordinate Courts in 1996 (re-enacted as the Rules of
Court).
89
Pinsler, Civil Justice in Singapore: Developments in the course of the 20th century, (Butterworths Asia:
2000), pp 503-534.
90
Singapore Rules of Court, O. 38, r. 2.
THE WAY AHEAD FOR THE INDIAN JUDICIARY

Having identified the bottle-neck elements causing delays in the Indian Judiciary in the first
part and analyzed the judicial systems of other countries in the second part, we will be applying
these findings to the Indian scenario and finding solutions to fasten up the system for disposal
of cases in India.

There has been a conscious recognition of the gravity of the problem by all the three organs of
the state, and several commissions and committees had been appointed to look into the problem
and suggest ways and means of improving the judicial system. Since the inception of India as
a republic and the adaptation of our constitution, several reports have been published on the
same issue by special committees as well as the Law Commission of India. These reports have
suggested varied changes suitable for different times as well as certain common changes that
have been continuously suggested. The following compilation lists out the suggestions put forth
by the different reports:

Report of the Rankin Committee 192491

In 1924, under the chairmanship of Justice Rankin, a civil justice committee was appointed to
enquire into the issues relating to changes and improvements necessary to bring in ‘more
speedy, economical and satisfactory despatch of the business transacted in the courts’. Delay
in disposal of cases beyond a period of two and a half years was a crucial concern and it was
emphasized that ‘where the arrears are unmanageable, improvement in methods can only
palliate. It cannot cure.’ The committee had identified insufficient judge strength in some of
the High Courts as the principal cause of arrears and delay. Justice Rankin in the committee
report had candidly observed, nearly 90 years ago, that Unless a court can start with a
reasonably clean slate, improvement of methods is likely to tantalise only. The existence of a
mass arrears takes the heart out of a presiding judge. He can hardly be expected to take a strong
interest in the preliminaries, when he knows that the hearing of the evidence and the decision
will not be by him but by his successor after his transfer. So long as such arrears exist, there is
temptation to which many Presiding Officers succumb, to hold back the heavier contested suits

91
Civil Justice Committee 1924–1925.
is thus maintained somewhere near the figure of institution, while the real difficult work is
pushed into the background.92

Report of the High Court Arrears Committee 1949

Set Up by the Central Government under Chairmanship of Justice S. R. Das The report
highlighted that the inordinate delay in filling up the vacancies in the High Courts should be
avoided and efforts should be made to increase the judge strength in those courts where the
judge strength was not commensurate with the volume of work. Increase in the numeric
strength of the subordinate judiciary is crucial in meeting the congestion of work.

Survey Report 1967

The Government of India had conducted a survey of the work of each High Court in 1967, and
it was reported that inadequacy of judges was the main cause for delay and pendency, along
with several other factors like delay in filling up the vacancies, etc.

Report of the High Court Arrears Committee, 1972

The High Court Arrears Committee, 1972, under the chairmanship of Justice J. C. Shah,
identified the denial of necessary judge strength in the High Courts and delay in filling up of
the vacancies as the primary factors affecting the judicial functioning.

Arrears Committee

At the Chief Justices’ Conference held in New Delhi, 1987, the primary focus of deliberation
was the high arrears of cases in the High Courts and the subordinate courts. During the course
of the conference, several factors were highlighted as causing delay in the disposal of cases
such as lack of discipline among the Indian judges, competency of the judges, amendment of
the procedural laws, classification and clubbing of cases, constitution of Conciliation Courts,
filling up of the judicial vacancies and increase in judicial strength. Of the several factors, delay
in judicial appointments and the paucity of presiding judges were considered to be primarily
responsible for the arrears and backlogs. Based on the recommendations of the conference, a
committee of chief justices was suggested to be appointed to examine in detail the factors
causing delay in disposal of cases. The Government of India in 1989 appointed the Arrears
Committee consisting of Chief Justices Shri V. S. Malimath, P. D. Desai and P. C. Jain to study

92
Id., para 16, at 22. Quoted from Centre for Research & Planning, Supreme Court of India, Subordinate Court
of India: A Report on Access to Justice 2016, New Delhi,
http://supremecourtofindia.nic.in/Subordinate%20Court%20of%20India.pdf.
the problem of arrears in different courts and look into the factors resulting in high pendency
and accumulation of arrears of cases in the various courts of the country. The Arrears
Committee (1990) headed by Justice V. S. Malimath in its report had made major
recommendations to comprehensively deal with the problems of accumulation of arrears of
cases in the various courts of the country.93 The committee was of the opinion that the arrears
can be substantially brought down with better management, computerization of court system,
increased settlements by Lok Adalats, the effective use of provisions of the Civil Procedure
Code with all its necessary amendments and the cooperation of the lawyers and the court staff.
It had observed that ‘the failure on the part of the executive to produce adequate numbers of
competent judges from time to time has substantially contributed to the mounting arrears’. It
had also emphasized that the competence of the judges in terms of quality and quantity of
disposals should be regularly assessed by the superior court judges and reputed senior
advocates. The committee suggested for procedural and process reforms as well as court and
case management. It highlighted the need to simplify and reduce the appeal processes and also
emphasized the need to re-look into the issue of original jurisdiction of the Chartered High
Courts. It further recommended that the Chief Justice of India should be entrusted with the
power to determine the judge strength required for each High Court, in consultation with the
Chief Justice of the High Court, and recommend the same to the President to appoint the
requisite number of judges. It suggested the inclusion of perspective planning in the judiciary
so as to determine the judge strength based on requirement in the foreseeable future. Other
recommendations included infrastructure and manpower improvement, punctuality among
judges, prevention of strikes, avoid loss of work hours, etc. The need to provide alternative
machinery for redressal of grievances was specifically emphasized in order to reduce the
burden of the courts in avoiding cases of trifling nature.

Law Commission of India

The Law Commission of India has been the primary body which has conducted several studies
on the various aspects of the justice delivery system in India. Law Commission in its several
reports have recommended for reforming legislation and adoption of reformative measures in
various judicial institutions for the purpose of maximizing justice in society and promoting
good governance under the Rule of Law. Speaking on the importance of justice reforms, it had
observed that in an organized society, it is in the interest of the citizens as well as the state that

93
The Judiciary, in Report of the National Commission to Review the Working of the Constitution 1,
http://lawmin.nic.in/ ncrwc/finalreport/v1ch7.htm (last visited July 28, 2016).
the disputes which go to the law courts for adjudication should be decided within a reasonable
time, to give certainty and definiteness to rights and obligations. It is the obligation of the state
to make justice simple, speedy, cheap, effective and substantial.94

Some of the crucial Law Commission Reports dealing with justice delivery system are as
follows:

Fourteenth Law Commission Report on the Reform of Judicial Administration (1958)95

The commission discussed the overall problem of the judiciary. The subject of the report was
‘Reform of the Judicial Administration’, and it dealt with various issues relating to the
administration of justice in two volumes. Volume I dealt with civil matters from the lower
courts to the Supreme Court, including writ jurisdiction. It dealt with every aspect of law and
legal proceedings of judicial system. It dealt with High Courts, Supreme Court, adequacy of
judicial strength, subordinate judiciary, supervision and control of subordinate courts, delays
in civil proceedings, jurisdiction of civil courts, courts of small causes, trial of suits, civil
appeal, civil appellate procedure, civil revision, execution of decrees, written argument, suits
against government, costs, courts fee, insolvency, law of evidence, legal education, the bar,
legal aid, law reports and court language. The volume dealt with the subject matter of overall
judicial reform in civil matters and its judicial administration. Volume II similarly discussed
the criminal justice administration. It dealt with writs, administrative bodies, law reform and
legislations, organization of criminal courts, investigation by the police, prosecuting agency,
director of public prosecutions, delay in criminal trials and enquiries, committal proceedings,
criminal appeals, criminal revision and inherent powers, administration of criminal justice,
separation of judicial and executive functions, trial by jury and state-wise studies of the
criminal justice system.

The primary focus of the report was the working of the entire system of administration of
justice, scope and operation of the various courts, effects of substantive and procedural laws
on litigation, elimination of unnecessary litigation along with fast disposal of cases and making
litigation less expensive and more accessible to all. On the crucial issue of making justice
‘simple, speedy, cheap, effective and substantial’, the commission highlighted the need to
overhaul the system of administration of justice. It observed that ‘the growing accumulation of
arrears in the various High Courts and subordinate courts had created a situation which

94
Resolution moved in the Lok Sabha on 19 November 1954 for the constitution of a Law Commission.
95
Law Commission of India, fourteenth Report: Reform of Judicial Administration, at 64 (1958),
http://lawcommissionofindia. nic.in/1-50/Report14Vol1.pdf
necessitated a careful examination of the problem of the proper functioning of the machinery
of the courts’. Recognizing the need to increase the judge strength post independence due to
the increase in workload, the commission had made the crucial recommendation that it should
be a convention, that if the Chief Justice of a state makes a request for the appointment of
additional Judges and if the need for such additional Judges is accepted by the Chief Justice of
India, the Chief Justice’s request should be acceded to.

Some of the major recommendations of the commission were as follows:

1. Post-independence enormous increase of work for the courts necessitates the need to give
more attention to judicial administration

2. Need for creation of an independent Ministry of Law and Justice

3. Adequate administrative facilities for the Justice department

4. Increase in judicial strength

5. High Courts should be empowered to create additional courts whenever it is deemed

necessary without reference to the state governments.

Seventy-seventh Report on ‘Delay and Arrears in Trial Courts’ (1978) and Seventy-ninth
Report on Delay and Arrears in High Courts and Other Appellate Courts (1979)96

The reports dealt with both civil and criminal matters. They candidly observed that the delay
in the civil or criminal matters had decreased confidence among the general public about the
judicial system. It was emphasized that civil cases should be treated as lapsed if the matter was
not disposed within one year from the date of registration, whereas a criminal matter should be
disposed within six months and in the case of sessions trial, it should not go beyond one year.
It was also suggested to timely fill up vacancies, appoint additional and ad hoc judges and
increase overall judicial strength.

Some of recommendations are as follows:

1. Improvement of judicial system to meet modern requirements of society

2. Time for scrutiny of the cases should not take more than one week

96
Seventy-seventhReport on Delay and Arrears in Trial Courts (1978), http://lawcommissionofindia.nic.in/51-
100/Report77.pdf; seventy-ninth Report on Delay and Arrears in High Courts and Other Appellate Courts
(1979), http://lawcommissionofindia.nic.in/51-100/Report79.pdf.
3. Summons and notices should be attached with the plaint at the stage of filing, without stating
the filing date

4. Procedural reforms in civil and criminal case proceedings.

Hundredth Report on Litigation by and against Government: Some Recommendations

for Reform (1984)97

The report dealt with the issue of civil cases which are pending by or against the government.
It dealt with the importance and relevance of Section 80 of the Code of Civil Procedure. The
object of the provision is to give an intimation to the government about the intended litigation
so that the government may consider the legal position and redress the wrong done, without
recourse to the court. The report also proposed for constitution of a ‘Litigation Ombudsman’
for central government and state governments. Under the scheme, if a person intends to sue the
government by writ proceeding, he/she would be required to approach the ombudsman first
and seek for appropriate relief by stating his/her grievance. The ombudsman office will
thereafter examine the matter, inform the applicant about its recommendations and send a copy
of it to the appropriate ministry or department. The commission further recommended for
limiting the power of the government to take action against individuals by recommending that
the limitation period of 30 years provided for taking actions against individuals by the
government under Section 112 of the Limitation Act should be amended to make it 3 years,
similar to the period provided to individuals. The commission suggested that the limitation
period should be uniform for both government and individuals.

One Hundred Twenty-fourth Report on the High Court Arrears: A Fresh Look (1988)98

The report dealt with the issue of pending and arrears of cases in the High Court. It firstly
suggested that the government should adopt and implement earlier Law Commission reports
on the same issue. It identified insufficient number of judges in the High Court as a primary
cause for delay and also discussed why the best possible minds in the legal profession were not
inclined to join as a High Court judge. In addition, delay by the government in the process of
appointment further adds on to the arrears. The commission recommended that the National
Judicial Service Commission should be set up for filling existing vacancy in the High Courts

97
Hundredth Report on Litigation by and against Government: Some Recommendations for Reform (1984),
http://lawcommissionofindia.nic.in/51-100/Report100.pdf.
98
One Hundred Twenty-fourth Report on The High Court Arrears—A Fresh Look (1988),
http://lawcommissionofindia.nic.in/101-169/Report124.pdf.
and the Supreme Court. The second part of the recommendation was related to the
administration of the case management system along with the computerization of the High
Courts. The report also recommended for equipping the High Courts with modern technology
for their smooth functioning, communication, registry system and documentation. The third
part of the recommendation suggested for abolition of original jurisdiction of High Courts and
that jurisdiction should be given to district courts under certain Acts such as Indian Divorce
Act, Parsi Marriage and Divorce Act, Patent and Designs Act, Succession Act, Indian Lunacy
Act, Guardianship Act and Company Act. It was further recommended that the appellate
jurisdiction of district courts should be increased.

One Hundred Twenty-sixth Report on Government and Public Sector Undertaking

Litigation Policy and Strategies (1988)99

The report in its introduction states the necessity of the public sector undertakings and their
goals, and the reasons for government to establish corporations and public sector undertakings.
The aim of the government was to ensure overall development of the changing society and
fulfil the needs of the society. The commission asserted that in the absence of social auditing
of departments and public undertakings, these bodies preferred appeals if decision went against
them from lower courts to the apex court at the expense of public fund. The commission held
that the lack of accountability from the Public Account Committee of Parliament or the
Parliament in general had also contributed towards increase in ligation due to unlimited power.
The report specifically stated that government and public sector undertakings are the biggest
litigant.

Some of the recommendations are as follows:

1. Government of India and the state governments should direct all public sector undertakings
for conducting mandatory arbitration. Government should set up arbitration panel.

2. Public sector undertakings should constitute grievance redressal cell, and its decision should
be binding on the parties.

3. Government is a class itself and biggest litigant in this country. It should be made mandatory
for concerned officers to reply in person within two week after receiving notice. He/she will

99
One Hundred Twenty-sixthReport on Government and Public Sector Undertaking Litigation Policy and
Strategies (1988), http://lawcommissionofindia.nic.in/101-169/Report126.pdf.
send notice to the person for referring the matter for arbitration, if he/she thinks that the matter
should be decided by arbitration.

4. Creation of a federal legal cell, state legal cell and public undertaking legal cell for proper
management of the litigation.

Two Hundred Thirtieth Report on Reforms in the Judiciary: Some Suggestions (2009)100

The report made recommendations for judicial reforms in the High Courts. It gave
recommendations on selection and appointment of High Court judges, age of retirement,
increase in number of judges and creation of new benches, number of working days and
vacations, work culture, etc. It also dealt with other issues such as corruption, access to justice
and ethics. It had adopted several recommendations from Justice Ganguly’s article ‘Judicial
Reforms’ published in Halsbury’s Law Monthly of November 2008.

Some of the recommendations are as follows:

1. There must be full utilization of the court working hours. The judges must be punctual and
lawyers must not be asking for adjournments, unless it is absolutely necessary. Grant of
adjournment must be guided strictly by the provisions of Order 17 of the Civil Procedure Code.

2. Many cases are filed on similar points and one judgment can decide a large number of cases.
Such cases should be clubbed with the help of technology and used to dispose other such cases
on a priority basis; this will substantially reduce the arrears. Similarly, old cases, many of which
have become infructuous, can be separated and listed for hearing and their disposal normally
will not take much time. Same is true for many interlocutory applications filed even after the
main cases are disposed of. Such cases can be traced with the help of technology and disposed
of very quickly.

3. Judges must deliver judgments within a reasonable time and in that matter, the guidelines
given by the apex court in the case of Anil Rai v. State of Bihar 101 must be scrupulously
observed, both in civil and criminal cases.

100
Two Hundred Thirtieth Report on Reforms in the Judiciary: Some Suggestions (2009),
http://lawcommissionofindia.nic.in/reports/report230.pdf.
101
Anil Rai v. State of Bihar, 7 SCC 318 (2001).
Two Hundred Forty-fifth Report on Arrears and Backlog: Creating Additional Judicial
(Wo)manpower (2014)102

The report analysed the issue of increasing the judicial strength and discussed the various
mechanisms for the purpose of calculating the required number of judges. The feasibility of
determining the number of judges on the basis of population ratio or on the basis of time
consumed for disposal of cases, etc. was discussed. It looked into issues such as ‘deliver timely
justice’, ‘backlog of cases’ and current ‘judge strength’ which are considered to be great
barriers in justice delivery system.

Some of the recommendations are as follows:

1. Rate of disposal method and formulae to be followed for calculating adequate judge strength
for subordinate courts, instead of judge–population or judge–institution ratio, ideal case load
method or the time-based method.

2. Increasing judge strength in order to ensure timely justice and facilitate access to justice for
all sections of society.

3. The age of retirement of subordinate judges should be raised to 62 years. The benefit of
increase in the retirement age should be made available to judicial officers in terms of the
directions of the Supreme Court in All India Judges’ Association v. Union of India.103

4. Creation of special courts for traffic/police challan so that they can reduce the case load of
the regular courts. In addition, facilities for online payment of fines as well as the payment of
fines at designated counters in the court complex should be made.

5. Need for staff and infrastructure improvement. Periodic judicial needs assessment should be
held to monitor the rate of institution and disposal of cases and revise the judge strength
periodically. Meaningful judicial reform is necessary for proper functioning of the judicial
system.

A study of the various reports clearly indicates the concern about the problem of delay and
arrears in the judiciary have been predominant in the minds of the law makers and the members
of the judicial community. An in-depth analysis of the various suggestions to resolve the crisis
in the administration of justice broadly advocates for three types of changes which are as

102
Two Hundred Forty-fifth Report on Arrears and Backlog: Creating Additional Judicial (wo)manpower
(2014), http://lawcommissionofindia.nic.in/reports/Report245.pdf.
103
All India Judges’ Association v. Union of India, 4 SCC 247 (2002).
follows: First, structural changes in the judicial system by building infrastructure, appointing
appropriate number of judges and filling up the vacancies in the Supreme Court, High Courts
and subordinate courts. Second, type of suggestion is to bring changes in to the existing laws
by suitable amendments, repeal or enactment. Third, suggestion involves changes in
government policy. There is a need for government commitment towards providing speedy
justice to all needy citizens and clearing the backlog of cases. Based on these recommendations,
in the course of recent years, several remedial measures have been introduced and adopted to
deal with the problems and meet the challenges.

SUGGESTIONS AND POLICY RECOMMENDATIONS TO REDUCE DELAY

Constitution of Fast-Track Courts

Establishment of Fast Track Courts serves a prominent achievement in expedient trial. The
Eleventh Finance Commission prescribed “a plan for constituting 1734 Fast Track Courts
(FTCs) in the nation for disposing long pending Sessions and other cases. The FTCs were
constituted to speedily dispose the long pending cases in the Sessions Courts and in cases of
under-trial prisoners.” Justice J S Verma Committee also suggested constitution of fast-track
courts for speedily managing rape cases.

Encouragement to Lok Adalats

Lok Adalat is an ADR mechanism for amicable settlement of dispute between the parties. Lok
Adalats got its statutory status under the Legal Services Authorities Act, 1987. Consolation to
Lok Adalats will positively reduce the burden of cases on the court and quicken the justice
delivery system.

Setting up of Gram Nyayalaya

Nyayalaya are set up under Gram Nyayalaya Act, 2008. They are village courts which are
intended to guarantee speedy disposal of petty issues at rural level. However, at present only
few nyayalaya is working. Hence, there is a requirement for setting up of more village courts
for expedient and simple access to justice from grass root level.

Establishment of Commercial Courts and subject specific courts

The Commercial Courts, Commercial Division and Commercial Appellate Division of High
Courts Bill, 2015 was passed for the constitution of Commercial Courts which shall reduce the
burden of other civil courts. Commercial Courts are effective and guarantees expedient disposal
of cases involving commercial relations.

Further, restricting the jurisdiction of the lower courts in certain subjects and establishing suject
specific courts in their place to handle such cases will also reduce delays in lower courts.

Role of Legislature

Role of legislature is very important to ensure speedy and fair justice. The law making body
should make effective legislations which curtails the delay in proceedings and fix a proper
limitation period for every proceedings. It shall also establish provisions for strict
implementation of already prevailing provisions.

Filling Vacancies of judges

There is an earnest need to fill the vacancies of judicial posts since there are more vacancies in
the Indian Judiciary. Both judiciary and government should cooperate to overcome this issue.

Judicial Education, Training and Personality of Judges

Law Commission of India in its Seventy Seventh Report deals with the same issue.
Consequently, there ought to be appropriate training and judicial education for the judges. A
Judge’s personality is considered to be an essential part in justice delivery system.

Increasing the number of judges in each court proportionally.

The most pertinent ad effective solution to the arrears of cases is perhaps increasing the number
of judges in each court by applying a formula of proportionality. Excessive workload not only
leads to delays but also reduces the quality of work as pointed out earlier. This being the case,
increasing the umber of judges, especially in the High Courts, specifically equipped in subject
matters which are in demand, will ease the burden on other judges in addition to faster disposal
of cases.

Establishing branches of High Courts

One of the main reasons for delays in the High Courts is that people from different part of the
state find it difficult to travel to the respective High Courts regularly due to financial as well as
professional reasons. This can be eased by following the example of states like Tamilnadu
which have 2 branches of the High Court in the state at different locations. Establishing a
limited number of branches (2 or 3) at different and distant parts of the state would be effective
and also less cumbersome on the litigants.

Better Training for other court officials:

The court administration and other personnel are equally responsible for the
adjournments, having their individual contributions in the cases as a whole. Thus proper
training and recruitment of more focussed and efficient personnel can lead to less of
carelessness and more of seriousness from their side. Many of them can also be
outsourced to meet the growing requirement of handling multiple cases and the backlogs.
They should follow some code of honesty and sincerity towards their work.

Digitisation

Digital technology has reached its peak in every aspect of our lives hence it should replace
the manual labour that still operates within the congested and overcrowded rooms of
lower courts leading to lesser paper filing and more sorted digitisation of cases. The court
rooms needs to be cleaned and infrastructure needs to be expanded to house large
number of cases that are being already filed and are being filed every day. Online tracking
and monitoring of cases by a central information system of the court could be helpful.

The lower courts in Indian do not rely on an extensive use of technical aids.
Especially the importance of computerization of courts should not be overlooked.
Information technology, for instance, has helped to diminish arrears in the Supreme Court
in two important ways. First, the computerized court registry has listed all pending cases
in chronological order. Listed matters have been taken up sequentially, leaving no room

Using technology to club cases

Advancements in technology should be properly utilised to recognise cases which involve the
same subject matter or same statutes. After the questions of law are decided, there should be a
clubbing of cases, especially writ petitions, which pose the same question of law and they
should be heard together to avoid repetitions. While this is also being done currently,
digitisation of the same will accelerate it further and also make it more effective. This could
effectively reduce repeated litigation and delays in Higher Courts.
Amendment of Procedural Laws

The procedural laws of India, be it Civil or Criminal, are too complex for the understanding of
the common man and further complicate the system in itself. The give way for delays,
repetitions, loopholes and are very time consuming. This process can afford to be simplifies
and less time-consuming. Further, the different stages of a case can be clubbed to accelerate
the process. As suggested by the 77th report on delay and arrears, Summons and notices should
be attached with the plaint at the stage of filing, without stating the filing date. Measures like
these can simplify the process and make it less time-consuming.

Alternate Dispute Resolution

ADR is often used to describe a wide variety of dispute resolution mechanisms that are short
of, or alternative to full-scale court processes. ADR is a method of disposing of disputes of all
kinds between or among parties swiftly and inexpensively, free of legal intervention and
restrictions. It typically includes arbitration, mediation, early neutral evaluation and
conciliation. The purpose of alternative dispute resolution is not a substitute consensual
disposal or adversarial disposal or to abolish or discourage informal mediation or arbitration
outside the courts, but to make alternative dispute resolution a part and parcel of the formal
legal system, preserving the trial court’s statutory authority and jurisdiction to try the cases
should ADR fail.104

Mechanisms of ADR: Negotiation, mediation, conciliation and arbitration are the most
common features of ADR.

Alternative dispute resolution is that mechanism which resolve disputes more efficiently and
amiably by finding self-made process best suited to the parties. It is the method where the
disputants can participate in the solution finding process. ADR cannot be substitute of formal
judicial system, but can complement and support it. Some of the ways through which ADR
helps in reducing the delays are as follows:

o In most of the cases, the rate of success is high as it can bring a satisfactory solution
among the parties to the dispute. Since the process is determined and controlled by the
parties, it is considered as more flexible than formal litigation
o It can reduce delay in the resolution of disputants and increase disputant’s satisfactions

104
See generally Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, in
HANDBOOK FOR JUDGES (Kathleen M. Sampson ed., 2004).
 o ADR process can effectively reduce the cost of resolving disputes
o Social groups that are not adequately or fairly served by the judicial system can have
access to justice through ADR mechanism, as it provides legal advice to members of
disadvantaged groups on whether and how to use the court system
o It helps to reduce pressure on judiciary

The essence of this concept is that after filing of the plaint and submission of the written
statement, attempts would be made to resolve the dispute through various forms of alternative
dispute resolution (ADR) by early judicial intervention. The Indian Supreme Court stated in
PN Duda vs. P.Shiv Shankar and others105 that -“Justice cries in silence for long, far too long.”

Decentralisation of the Supreme Court

While 10 percent of the cases filed in the Supreme Court emanates from Delhi, and 6.2 percent
from Punjab and Haryana, only 1.1 percent and 2.4 percent come from large Southern states
like Tamil Nadu and Karnataka. The Law Commission in its 220th report notes that the financial
burden of traveling across the country and arranging for a lawyer in Delhi is often a huge
burden on petitioners. While these numbers do not conclusively prove that distance affects the
likelihood of a case coming before the SC, they are indicative of a trend.

One of the key suggestions in this respect would be a call for structural reforms of the Court.
The Supreme Court, in its current form, was set up by the Indian Constitution in 1950. It sits
in Delhi, replacing the British Federal Court of India. However, the constitution also provides
for the court to have benches and sittings outside Delhi in Article 130 but this article has not
been invoked so far, despite several calls for its application.

Therefore, it is suggested that the unified Supreme Court be split into a Court of Appeal and a
Supreme Court for constitutional matters. Further, the newly created court of appeals would
sit in benches located in five different places namely Chennai, Hyderabad, Delhi, Kolkata,
and Mumbai.

Increased working hours for the other services provided in courts

Increasing the court working hour may be considering as a possibility. By this, the
recommendation is not to increase the duty hour of a presiding officer but to offer support

105
1988 AIR 1208, 1988 SCR (3) 547.
services for longer duration to reduce the time spent inside the courtroom. Issues like
overlapping of hearing dates, online information sharing about the presence / absence of
presiding officer and rescheduling of court date with shorter dates should partially tackle
the inconvenience faced by the litigants.

The working days of judges and other court officials needs to be increased on an average.
Due to strikes and holidays the lower courts functions for a period of 220 to 240 days or
less. This leads to delay in cases a whole. Also, it should be noted that the problem of
multiple cases (a court date is assigned after 2 months hence 4 to 5 dates in a year) , their
complexities and lesser working days leads to increase in case duration. Implementing
such cultural changes in particular can be difficult because they require changes in the
way people work.

A time limit to dispose cases

Most of the courts should imbibe the operating principles of fast track courts those work
especially during the trial stage where maximum delay is caused. A certain period
should be fixed for the disposal of cases, putting limit caps to case duration. This time limit
should be adhered to strictly and can be waived only at the discretion of the judges in rare
cases. This will also entail less frequent adjournments.

More stringent punishment for vexatious litigations:

As highlighted earlier, vexatious litigations, even from the side of the Government is a leading
cause for delays. Imposing more serious sanctions will help reduce such litigations.

Rigorous following of limitation periods and decrease in unnecessary adjournments

To tackle the issue of unnecessary adjournments, incentive should be provided for faster
disposal of cases and the judges should be less liberal in providing adjournments. There should
be an implied rule against granting numerous adjournments and granting adjournments for
frivolous reasons such as absence of the senior lawyer, etc.

An increased regard should be given to the limitation periods set in the Limitation Act and less
tolerance towards the flouting of this specified period
Effective execution of decrees

Advertisements should be given in the newspapers to invite any person who is interested in the
suit property and can offer obstruction to the decree, if passed at the time of execution. Also a
copy of the plaint should be affixed on the suit property so that parties interested in the opposing
decree, if passed, can join suit.

The delivery of possession should be real, not symbolical. The court can take the initiative to
get the decree executed, only an application, on the part of the Decree Holder that he is
interested in getting a decree, will suffice and then the Court shall explore all ways to get the
decree executed.

The Court must see to it that the decree holder be not ousted shortly after delivery of possession.
Otherwise, such delivery of possession would tantamount to merely ceremonial execution of
the decree. The entire judicial exercise would be farcical. The court’s duty would be to ensure
continuous peaceful possession for a considerable period of three years at least.

The third solution is to dismiss the case if no prima facie case be shown before the court
regarding resistance to delivery of possession. The amendments, if incorporated would solve
the execution of the decree. 106

Reducing litigations by the Government

It has been stated time and again that the State is by far our biggest litigator. Ore than half the
cases in the courts involve the state. When this is the case, the number of litigations by the state
should be reduced considerably. This can be done by multiple measures such as reducing
frivolous litigation by the state, setting up ADR cells in different Government institutions,
encouraging more arbitrations and out of court settlements, setting up smaller courts to deal
with frivolous cases such as traffic fines and violations, setting up stricter service rules for
Government Officials and better implementation of these rules. Reducing the State’s litigations
will go a long way in reducing the total number of cases before the courts.

106
Priyabrata Ghosh, Civil Justice System: Its Delays and Solutions, 41 Journal of the Indian Law Institute 264
(1999).
CONCLUSION

In this project, we have analyzed the various reasons for delay in the civil court system of the
Indian judiciary and how India has been dealing with it. We have also looked at how foreign
jurisdictions tackle the issue of delay to optimize their judicial process. Taking inspiration from
the methods adopted by other countries and taking into consideration the socio-economic,
political and cultural scenario in India, we have provided suggestions on how India can remove
bottlenecks that are causing the delay in the Indian Judicial system. We hope that the
recommendation be taken into account for policy decisions, as it will go a long way in
increasing the efficiency of the judiciary and ensuring rule of law.