Justice Delayed is Justice denied.

“The Rule of Law and maintenance of order is the science of governance” - Kautilya’s Arthashastra, 4th century B.C.

While Justice delayed is justice denied is a legal maxim of the common law, which traces its origin in the west, as we can see from the above quote, that the principles of justice were laid out in the ancient Indian tradition of governance as well! While the scope of the maxim is very wide and can be argued from various standpoints, for the purpose of this essay we will focus on the social and economic impact of justice delayed and its consequences on the society from the stand point of India.

Data on the pendency of cases in India:

As of March 2021, 4.06cr. Cases are pending in all the courts put together, out of which 3.51cr or 86% of the total cases are pending with the lower courts, 57lcs cases or 14% or pending with the high court and remaining 66 thousand with the apex court. Charts for the cases pending in lower courts and high courts is presented below. Also, important to note is that out of the total pending cases 3.08cr. cases or 75% of the cases are pending for over one year. (Source NJDG)

                                                                                                                                          Data in lacs.

    

 

Data source in both charts (NJDG- latest available on site)

While the average time to dispose of cases in India is 2.5yrs according to the data in economic survey 2019-20, whereas European commission on efficiency of justice shows time disposal of justice in Europe at 5 months on an average for the data as of 2018.

Social Impact: We as a country in 2012 were all shocked with the news of a brutal gang rape in Delhi, now famously known as the “Nirbhaya” case. That case shocked the conscience of the society at large and even led to enactment of death penalty in such heinous crimes. The case went on and Nirbhaya finally got justice, but the case took 7 long years to reach its logical conclusion and while justice was delivered it was certainly delayed. The case can cannot be seen in isolation, if we have to emphasis the importance of speedy justice delivery.

Let us look at a similar case that happened in 2019 in Hyderabad with a vastly different outcome. In this case the cops carried out the encounter of the 4 people involved in the crime, not waiting for the court verdict to be delivered. The society at large favored the police action. Pertinent to point out is that the final judgement in the Nirbhaya case was still pending, for the crime that had happened in 2012. Arguments used by people to justify the encounter was that with all the procedural delays witnessed in the Nirbhaya case, it is only proper on part of the police to act in the manner as they did as long as the ‘justice’ was delivered.

The two cases when seen together emphatically put across the point that “justice should not just be done, it must be perceived to be done as well.” The society as a whole needs to feel that justice is delivered on time, so that it does not celebrate such extra judicial acts of the police and administration. The same was case with the crime solving in Mumbai in the 90’s, or current state of affairs in states like UP. When the society as a whole stops feeling that justice is for the common people and will be delivered to them in the time bound manner, society starts to make hero’s out of cops that clearly, ‘bend’ or ‘break’ the very rules they are meant to safeguard.

Economic Impact of delay in justice: Enforcement of contract is one of the most critical aspects of “Ease of doing business” indicators published by World Bank. India’s rank in this parameter is 163 as per the EODB report of 2018, even if its overall ranking has improved significantly. It is argued in various papers that the economic impact of the delay in Justice Delivery is huge and might be costing about 0.5% of the GDP to India on account of this delay.

The principle of “Matsyanyaya”: Going back to our ancient texts on governance, Kautilya has in his Arthashatra argued about the concept of Matsyanyaya (Law of the fish/ Law of jungle.)  The principle states that, in the absence of the state not enforcing the contracts and justice, the big fish will always end up eating the small fish. In today’s parlance the same concept can be understood in the context of crony capitalism, were a clogged justice system and pendency and delay in cases help only the very rich, who can then access the justice system and in some cases manipulate laws to favour them, pushing the small business, local business and MSMEs at an absolute disadvantage. Thus, the system does not produce an environment that encourages new risk taker to try out new businesses, deploy new technology and even denies access to formal credit system. The entire system is thus skewed in favour of a select few at the cost of many.

Prior to “insolvency and bankruptcy code” passed by the parliament in 2016, India did not have a proper frame work for resolution of stressed cases, there by leading to warehousing of this bad assets, which ballooned in after the 2008-09 financial crisis leading to the crisis in India’s financial system from the year 2013-14. It took 3 RBI governors and 3 trillion rupees from the exchequer to take the public sector banks out of this crisis.  While the IBC is a step in the right direction, in one of the cases like the recently concluded Bhushan power and steel case, which took 3.5 yrs. to conclude and which will be likely challenged by erstwhile promoters, even as implementation of resolution process has started by JSW steel with the creditors, shows that even a law like IBC with clause for time bound resolution of cases can be caught up in litigation.

Also, cases like AGR, and cases of retrospective taxes like Vodafone case, introduced in 2012 that ran for almost a decade, the case which central government lost not just in the Supreme Court but also in the international court. In AGR case as well, the delay in the judgement and the arbitrariness of the judgement ended up costing the entire telecom sector a decade to regroup consolidate and a once vibrant sector with many companies, forced to wind down business, Vodafone almost exiting Indian market and overall bad name for India in the  international market as business unfriendly destination.

These are just a few cases to highlight the problems in the justice delivery system that have a huge financial cost on the Indian economic system. Harish Salve ones said, “Supreme Court is to be squarely blamed for the current economic slowdown. In an interview to a news website, Salve has said that the slowdown began with the top court’s judgment in the 2G spectrum case in 2012. Salve said the apex court knocked out billions of dollars of foreign investment with a stroke of the pen with its judgement on 2G and coal allocation cases. The Supreme Court in 2012 had cancelled 122 spectrum licences granted to eight companies. In 2014, the court also struck down all but four of the 218 coal block allocations from 1993 to 2011.”

Conclusion: In conclusion from the above examples and the data provided we can conclude that the legal system is one of the important pillars on any functioning political, economic and social system and justice delivery plays an important source for maintaining law and order in thriving economic system. India clearly is facing a huge problem with this pillar of the state not functioning to its potential. The pandemic has actually extenuated this problem even further.

Solution to the problem: Even if the problem looks grave on paper for India, closer interpretation gives us the following answer. “Much of the problem is concentrated in the district and subordinate courts. Contrary to conventional belief, however, the problem is not insurmountable. A case clearance rate of 100 per cent (i.e. zero accumulation) can be achieved with the addition of merely 2,279 judges in the lower courts and 93 in High Courts even without efficiency gains. This is already within sanctioned strength and only needs filling vacancies. Scenario analysis of efficiency gains needed to clear the backlog in five years suggest that the required productivity gains are ambitious, but achievable. Given the potential economic and social multipliers of a well-functioning legal system, this may well be the best investment India can make.” (Source Economic survey of India 2019-20.) The pandemic, even as it has caused many problems, also opened up the possibilities of leveraging the online justice delivery mechanism. The new technologies like AI and block-chain can be used to leverage tech led justice delivery specially in the lower courts, where our system is jammed the maximum.

Thus, Indian judiciary should seriously introspect the aspect of time bound justice delivery and chart out a mechanism to deliver speedy justice to the country to live up to its motto of || यतो धर्मस्ततो जय: ||. (where there is rightiousness there is vitory)

 

 

References used:

Economic survey 2019-20: For statement of Kautilya, statement used in conclusion para, and data for average age for disposal of cases in India and comparison with Europe, principle of Matsyanaya, EODB data.

Arthashastra: The law of governance, penguin books. Quotes of Kautilya (primary source.)

https://www.indiabudget.gov.in/budget2019-20/economicsurvey/doc/vol1chapter/echap05_vol1.pdf

NJDG data for pending cases dashboard.

https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard

https://njdg.ecourts.gov.in/hcnjdgnew/?p=main/index

Bhushan power and steel case: https://www.thehindubusinessline.com/companies/jsws-conditional-acquisition-plan-gets-the-nod-of-bhushan-steel-lenders/article33999859.ece

Harish Salve statement on court judgements https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-responsible-for-current-slowdown-in-india-senior-lawyer-harish-salve/articleshow/71168723.cms?from=mdr

Data for pending cases at Supreme court. https://main.sci.gov.in/statistics

Hyderabad rape case: https://economictimes.indiatimes.com/news/politics-and-nation/all-4-accused-in-hyderabad-gang-rape-murder-shot-dead/articleshow/72393178.cms