Current Affairs

A Constitutional Conundrum of ‘Stay Orders Lapse’ and ‘Judicial Delays’ In Indian Legal System

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  • Published
    10th Jul, 2021


  • Today, India’s legal system is becoming more complicated confused with several constitutional loopholes and weaknesses which makes the difference in getting justice.
  • The concern is that during criminal trials, a stay order delays the efficacy of the Rule of Law and the justice system.
  • The power to grant indefinite stays demands accountability and therefore the trial court should react by fixing a date for the trial to commence immediately after the expiry of the stay.
  • Trial proceedings will, by default, begin after the period of stay is over.
  • In the case where a stay order has been granted on an extension, it must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.

The objective of this special report is to identify and study the gridlocks leading to such delay and inefficiency and to suggest effective measures to correct them.

India’s judicial system, at a glance

  • The Indian Judicial system incorporates the Supreme Court, high courts, and various other subordinate judiciaries.
  • It began functioning on January 28, 1950.
  • Since then, the system has been able to prove itself as the nation’s moral conscience, upholding the rights of all citizens irrespective of their class, gender, status, religion, and on several occasions, it has also saved the democratically established government itself.

Main sources of law

India has a hybrid legal system having elements of civil law, common law, equitable law, and customary and religious laws. The main sources of law are the following:

  • The Constitution of India: This is the supreme source of law.
  • Statutes: Statutes are enacted by the Parliament or the state legislatures. At local level, subordinate delegated legislation (such as rules, regulations and bye-laws) is passed by local authorities (such as government departments, municipal corporations, municipalities and gram panchayat).
  • Customary law: In certain aspects, local customs and conventions (usually religious in nature) that are not against any statute or morality are also applicable.
  • Judicial decisions: While technically not law, judicial decisions of superior courts like the Supreme Court of India and High Courts are another important legal source, and have precedential value.

What are the issues in the judicial system?

  • Even though our nation’s judiciary has achieved remarkable feats in a span of just seven decades, a gap between ideal and reality is becoming wider and clearer over the years.
  • Major problems faced by the system are:
    • low delivery of justice
    • the appointment of judges enmeshed in controversies
    • ineffective disciplinary mechanisms

Delayed Justice

  • “Delayed Justice, if Justice at all” has become the basic premiseof the Indian Judicial system.
  • There are almost 25 million pending cases all over the country and according to experts these numbers are likely to grow with the growing population unless and until something is done to tackle this.
  • The criminal justice system has been revamped by hundreds of thousands of pending cases and is also skewed against the poor or unprivileged section of the society.
  • Even though justice is served it still takes several years which highlights the deficiencies of the adjudicating authority.
  • The Constitution of India grants every citizen certain fundamental rights, the breach of which may lead to legal consequences, but still, there are thousands of rape cases are never investigated, because of the belief that court may take 8-10 years to decide the matter.
  • This is the ongoing condition of the Indian Judiciary.
  • For example
    • In the Nirbhaya Rape Case, even after the whole nation knew that those six people were guilty of rape and needed to be punished it still took the court 8 precious years of the victim’s mother’s life to decide whether they are guilty or not.
    • The Mohammad Harris Nalapad Case in Bengaluru took into consideration the fact that charge sheets are never filed within the stipulated 60-day period. Evidence has also been tampered with in several cases due to political pressure or sometimes due to callousness.

What is pendency rate?

  • The pendency rate with courts refers to the number of cases for which trial has not been completed, expressed as a share of total cases on trial during the year.
  • In case of police, backlog refers to the number of reported Indian Penal Code (IPC) crimes that have not yet been fully investigated.

Why the wheels of justice turn ever slower in India?

There are numerous causes behind the law’s delay and ineffectiveness.

  • Inadequate number of judges: The inadequate number of judges as well as courts in the country is one of the primary causes of delayed disposal of cases.
    • In the year 2000, unlike 107 judges to every million in the US, 75 in Canada, India only had 10.5 per million people.
  • Incompetent and inefficient judges are another such reason.
  • Adjournment: In Indian courts, it can be easily seen that there is a habit of taking adjournments by the majority of the lawyers for their own benefit. This is one of the big reasons for such a huge number of pending cases in India.
  • Multiple interpretation: One of the biggest reasons for the delay in our courts is our country’s diverse culture, language, religious sentiments, customs and practices which pose an unsettling issue in front of our courts i.e. whenever a matter is addressed before a court of law, the rule to be applied is capable of hundreds and thousands of interpretations which prevents the judge making a straightforward and quick decision in not so complicated matters.
  • High legal cost: The legal costs and all the expenses that a person has to incur to commence a legal action, even for a small claim, is so heavy that it becomes worthwhile to claim any legal action possible.
  • Complex procedure: The procedure and formalities are so complex and full of technicalities that it hinders the litigants at every stage.
  • Time wastage on irrelevant things: A lot of time is wasted on jurisdictional arguments, sufficiency of notices, causes of action, and other procedural issues.
  • High level of counter appeals: And even after the court of law has given the initial judgments, the number of counter appeals in higher courts is also one of the reasons for delay in imparting justice.

What are the reasons for the ineffectiveness?

  • Hampered working of the courts: Many Supreme Court and high court judges being made to study various commission reports and recommendations which in turn hamper the working of our courts.
  • Dirty politics: Political affiliations and sluggish tactics committed by judges also defeat the true essence of the justice system.

Major committees to correct ineffectiveness of the Indian justice system

  • Justice Rankin Committee: In 1924, a committee was constituted under Justice Rankin of the Calcutta High Court to cautiously look over the delay in the disposal of civil appeals and cases.
  • S.R. Das Committee: Another committee under the chairmanship of S.R. Das was constituted in 1929, which suggested measures to reduce the arrears in the various courts of the country.
  • High Court Arrears Committee, 1972: A report submitted by the High Court Arrears Committee, 1972 under the chairmanship of J.C. Shah identified the major cause of the delay in judicial administration as the lower number of judges in the High Courts as well as inordinate delay in vacancy appointments.
  • Law Commission Reports: Even various law commission reports such as the 14th, 27th, 41st, 54th, 58th, 71st, 74th, 79th, and 144th reports have several times posed the question of delay in the Indian Judicial System.

 What needs to be done?

  • Increase in number of judges: The number of judges should be increased in the High Court as well as the Supreme Court.
  • Fast track court: A Fast Track Court should be set up and also there is an urgent need to increase in the number of tribunals, judicial and quasi-judicial bodies. Each tribunal must be categorized according to the specialization of its judges which reduces the burden of the courts.
  • Robust technological infrastructure: Red tape or the inordinate delay due to paperwork creates a gap between the sections of the society. This must be replaced by the technological infrastructure e.g. e-filing of cases, e- returns, and the files pertinent to the case must be stored online, which will lead to a speedy disposal of cases.
  • Focus on speedy delivery of justice: A major shift needs to made from adjourning authority to adjudicating authority and advocates who seek delay excessively must be condemned severely.
  • Awareness regarding alternatives: People should be made aware of the Alternative Dispute Resolution systems like mediation, arbitration, conciliation, etc. which ensure speedy justice to trivial cases and screening of matters that require court assistance.

Concluding observation

India’s judicial system assumes significance as justice is a foundational goal not only of India, but of any civilization. Thus, it is imperative for the judicial system to perform its duty with due diligence so that society can strive for peace, harmony and progress.

Article 39A of the Constitution of India shines a light upon the concept of free legal aid to poor and weaker sections of society, but keeping the present state in mind, it has failed to achieve significance. The judges are considered equivalent to god, hence it their duty to ensure that no guilty person escapes unpunished. Now is the time when reformations must be done in the Indian Justice System.

“Justice delayed is justice denied” should be a major aim of every adjudicating authority. If this is not so, then how much we develop economically or technologically doesn’t matter because we will never be a developed nation.

Verifying, please be patient.