The allegation of sexual harassment against the CJI has captured the headlines, but there is a much deeper malaise in the Indian judiciary which has been overlooked, that is, the inordinate delay in disposal of cases. Cases drag on often for decades, because of which the people are rapidly losing faith in the judiciary. Judges are often blamed for not deciding cases expeditiously and not working hard. But the public does not know the problems of the judiciary.

When one of us, Justice Katju, was a Judge of Allahabad HC the court had set a norm that a judge of the subordinate judiciary should not have more than 300 cases pending before him at one time. A subordinate judiciary judge (CJM, Kanpur Nagar) met Justice Katju at Allahabad and informed him that in his court alone there were 30,000 cases pending. CJM, Ghaziabad, informed that in his court alone there were 21,000 cases. Recently, Justice Katju went to Bulandshahr where the CJM, Bulandshahr informed him that in his court alone there were 25,000 cases pending.

The Allahabad High Court had also set a norm that a Sessions Judge should not have more than 75 sessions trials pending at one time. The Sessions Judge, Bulandshahr informed Justice Katju that 1,600 Sessions trials were pending before his Court.

From these figures it is evident that there is a staggering load on the Indian judiciary. If a man can carry 100 pounds weight and an elephant is placed on his head, what will happen? He will certainly collapse and that has happened to the Indian judiciary.

There are about 33 million cases pending in the Indian Courts today, and it is estimated that if no fresh case is filed yet it will take about 360 years to clear the backlog. This being the situation, there is no point blaming the judges. Some radical step has to be taken and that can only be done by Parliamentary legislation.

It would be useful to study the actions taken in USA which too was facing a similar crisis in the early 20th century, namely, the number of cases pending in courts had arisen to an alarming level. The US authorities took radical action by creating a system of alternate dispute resolution mechanisms viz- arbitration, mediation, conciliation etc. Today barely 7 per cent of the cases filed in the US courts are decided by the courts. The remaining cases are decided by alternate dispute resolution mechanism. Every court has attached to it Arbitration and Mediation centres and often civil and minor criminal disputes are resolved there.

In this way most of the load on the courts is diverted to the ADR mechanisms.

In the US Supreme Court every year 5,000 or 6,000 petitions are filed but only about 100-150 petitions are admitted while the rest are dismissed even without oral hearing. If four of the nine judges vote to admit a case only then is it admitted for hearing otherwise it is dismissed without hearing. In USA the last appellate court is ordinarily regarded as the State Supreme Court. The US Supreme Court only takes up cases of an exceptional kind eg – involving cases of national importance or any other serious legal issue where public interest is involved or where some grave injustice has been done. Otherwise even if the US Supreme Court feels that the State Supreme judgment was incorrect they will never interfere. A similar approach is now required to be adopted by the Indian Supreme Court.

Article 136 was never meant to be a regular forum of appeal. It was a residuary provision which enabled the Supreme Court to interfere in exceptional cases. Otherwise ordinarily the last court should be the HC. However, unfortunately all kind of cases are entertained under Article 136 some of which never deserved to be entertained, and there is no settled criteria.

One of us, Justice Katju, had in 2010 referred a matter (Mathai Alias Joby V. George & Anr.) to a larger bench to fix the criteria as to what kind of Article 136 petitions should be entertained. In fact, in the said matter, the bench suggested the categories of cases which would be fit to be entertained by the Supreme Court under Article 136 viz. cases of national and public importance, challenges to the validity of State and Central Acts, matters concerning infringement of fundamental rights of citizens, matters involving substantial questions of law and interpretation of Constitution and settling difference of opinion on point of law between different High Courts.

However, in 2016, the larger bench consisting of five judges refused to the revisit the scope of Article 136, thus failing to restrict the unrestricted usage of Article 136 which has effectively made the Supreme Court a court of regular appeal.

These are all problems which can only be resolved by Parliamentary legislation. We recommend that the Government of India form a committee chaired by the Hon. Chief Justice of India and having as its members some senior Judges of Supreme Court and High Court, the Union Law Minister and Attorney General, distinguished jurists and even some young lawyers on it to consider what has been mentioned above and introduce legislation in parliament for this purpose, including a constitutional amendment for amending Article 136.

Apart from the aforesaid step at a legislative level, ADR mechanisms need to be further entrenched in the minds of the Indian bar and bench.

The bar has to dispel misplaced fears of viewing settling of disputes via mediation as a threat to their legal practice and incomes. In the US, many attorneys double up as mediators, thus incentivising them to work as trained mediators. In fact, about 50 per cent of the members of the American Bar Association are lawyers who are also mediators, and these lawyers cum mediators are usually earning more than those who are lawyers alone. There is no reason why the same cannot be done in India, but for that hundreds of mediation training centres will have to be set up.

Arbitration these days has become the most sought after mechanism for resolving disputes of high commercial value. There exists no reason for cases of lower commercial value not getting resolved by arbitration. Young advocates should be effectively trained and mentored by seniors at the bar to act as arbitrators for cases of such nature.

In fact retired Judges of the Higher judiciary including Supreme Court and High Court too should volunteer to act as arbitrators in cases of low commercial value too and not restrict themselves to only high commercial value cases. If this is not done then we regret, the judiciary which is on the verge of collapse will actually collapse, very soon

(The writers, Markandey Katju and Aditya Manubarwala, are, respectively, a former Judge of the Supreme Court of India and a Law Clerk Cum Research Assistant at the Supreme Court of India.)