Open Access Research Article
LIMITING THE CASES OF CIVIL NATURE: A PROSPECTIVE SOLUTION TO PENDENCY IN JUDICIARY
Published Paper
Article Details
LIMITING
THE CASES OF CIVIL NATURE: A PROSPECTIVE SOLUTION TO PENDENCY IN JUDICIARY
Abstract
The concept of disposal of civil disputes between parties in India has
moved from private settlement (in a gathering under the tree in ancient India)
to the institution of cases in the courts. The cases of civil nature contribute
largely towards the issue of pendency in courts at both sub-ordinate and higher
level. Economic development, globalization, recognition of human rights such as
literacy and gender justice has raised the number of institution of cases of civil
nature. Simultaneously, the complexities of laws, scarcity of infrastructural
resources and manpower has delayed the rate of disposal of these civil cases. The
paper aims to map the journey of civil justice system in India from the tenets
of settlement of civil disputes in ancient India to the present course of
proceedings in the courts. It further highlights the magnitude of issue of
pendency followed by the reasons for pendency in civil matters in the courts. The
research paper proposes to limit the institution of cases in civil nature one
of many viable solutions towards huge backlog of civil cases, which will
subsequently reduce the burden on courts in coming years. The research paper
accentuates the need to weed out the unnecessary cases before the trial
proceeding begins and authorize ADR mechanisms with increased powers so as
induce the notion of finality and trust on the awards declared by them.
Keywords:
Civil Justice System, pendency of cases, procedural complexities, ADR and
tenets of ancient civil justice system
I. Introduction
‘Justice
delayed is justice denied’ is an underlined statement that is often
associated with the legal system in India. Ironically, the classic literature
of ancient Indian jurisprudence such as Rigveda, Dharmashastra, Smritis,
Ramayana and Mahabharata had conceived the idea of imputing culpable delay as
an act of injustice.[3]
This age-old notion continues to transpire in modern legal and judicial milieu
of India with its numerous vicious consequences.
The delayed justice in present Indian
judicial system[4] is
evident from statistical figures depicting its pendency, especially the cases
of civil in nature. Hiram E. Chodosh et al (1998) exhibits
failure of the Indian civil justice system to manage the dispute resolution in
the evolving market-oriented society.[5]
Krishnaswamy et al (2014) in their empirical study argues the need to
reform the judicial system owing to pendency and delay through non-conventional
methods.[6] The
literature makes a dire need of speedy measures to be adopted to work on the
gaps of pendency evident, thereby ensuring social justice and speedy settlement
of disputes.
The conventional ways of addressing
the issue have failed to pull India out of the quagmire of pendency and
inefficiency of Indian judicial system. However, one prospective way could be
to have an inner mechanism of reduced institution of cases that are civil in
nature. The nature of cases in civil matters is (inter) personal. It can be
addressed as a solution by limiting its institution in the temples of justice.
In order to develop it as a solution, thorough research is necessary to fill in
the gaps in available research material. It aims to evaluate the reasons for
re-visiting the Indian civil justice system and investigate possible solutions
to re-align its civil justice system in lines with its ancient roots.
The paper has focused upon evolution
of civil justice system, its challenges and probable solutions towards its
pendency, rather than criminal cases. Adjudication and pendency of criminal
cases are excluded as crimes are considered to be committed against society.
The nature and gravity of crimes ought to be taken up in courts under guidance
of judicial minds of judges as it intends to penalize the accused and serve
justice to the victim.
II. Historical Development of Civil Justice System in
India
The civil justice system finds its
genesis in its ancient roots of Indian legal system, with different structure
and contours. This part attempts to map the journey of the very contours of
civil justice system in India from ancient times to our current system.
1.
Ancient Legal System for Civil Cases
The ancient judicial system for civil
cases in India was motivated by formally constituted groups or council. The
constitution of members in the council was based on judicial positions and
their landholding. The leaders of the councils acted as mediators. The essence
of arbitration was to bridge the gap between various rings of society. All
interested parties (directly or indirectly) concerned with the dispute were
free to attend the meeting, which enabled to form the public opinion. The
council members enabled the parties to talk out their share of issues regarding
disputes of civil nature. [7] The
underlying idea of arbitration was “compromise” and the principal basis of
settlement was arbitration.
a. Methods of conciliation in civil
cases
The justice system for civil cases in
ancient India advocated for creating a climate of peace and prosperity amongst
parties, thereby avoiding conflict. The landscape of conciliation was based on
principles of sama, dana, bhed and danda.[8] Sama was understood as opposite to
fighting or beating in cases related to civil matters or troubles between
families.[9] It is a method of pacifying the parties. The
act of “talking” out was said to
relieve much of aggression built up in disputes. The parties were made to talk
for many hours. Eventually, a compromise would be suggested which must be
accepted by all, even if it was deemed favorable to one party and unfavorable
to other. Both parties were/ had to be satisfied with the compromise.[10]
Second method, that is, ‘Dana’[11] was
a mean of realizing the fruits of sama or
executing the award decided in sama. However, when sama or dana failed to
resolve the dispute, bheda[12] was
practiced. Herein, the parties were reluctant in meeting the solutions even
half way. Therefore, power dynamics (coercion or threats) was used as strategic
idea for negotiation. Dandaniti was
the last method pursued to encourage people to walk on path of righteousness.[13] Physical
force in proportionate manner was used as the last resort, on natural failure
of passive measures.
The civil natured cases primarily
consisted of family issues, between husband and wife. They were private
matters, with minimum or no state intervention.[14]
The principles referred for dispute resolution by virtue of community
participation were dharma (duty of righteousness) and karma (action
and its consequence).[15]
Thus, the foundations of civil dispute resolution in India was not an agenda of
‘welfare State’. It was regulated by internally developed mechanisms within the
community and solved on personal basis.
b. Judicial Structure: Hierarchy of the
courts
The institutional structure of
dispute resolution temples was graded into a hierarchy with kula as family councils. It was headed
by the elder people of the families. Alongside, shreni or councils of trade/profession was established. It was
presided over by impartial persons belonging to the same profession.
Thereafter, the legal system had placed village assembly or gana as a large council with impartial
and learned people. They tried both civil and criminal cases. Nripa or King was the supreme authority
who guided his decisions by principles of dharma.[16]
The trial was done according to Dharmashastras which ensured the trust and
confidence of public on judiciary. It would not be flawed to say that even
without any influence from western concepts, judicial system in India was
governed by well-established framework of Dharma principles.
The contemplation of structural and
normative idea of dispute dispensation of personal matters highlights that ‘settlement’ by kula or gana, was the
main objective in ancient Indian jurisprudence, instead of idealizing the
notion of justice. Invasion of territories of India by foreign powers such as
Mughuls and Europeans changed the social and political set-up of India.
2.
British System of Justice for Civil Cases
The British Empire had settled its
claws tightly in India by 19th century. India witnessed gradual but
sea changes in political, legal, economic and its social ambience. There was a
rise in population which put pressure upon the land and agricultural prices.
Higher standard of education, rise in urban occupation in commerce and industry
exposed village life to urban setting. Land reforms and migration for economic
well being led to up lift of lower castes. The legal and administrative
spectrum changed with social settings. The courts were established with British
employees as judges (presiding officers).[17]
a. Judicial Structure: Hierarchy of the
courts
The nature of principle disputes
changed with the alterations in the social fabric of India. Principle disputes
pertained to ownership of land and rates of revenue and rates. Personal laws
related to family matters were reformed under the umbrella of Hindu and Muslim
laws. The guiding principles of criminal laws were a mixture of British and
Muslim law.[18] They
continued the courts as in Mughul time like the Moffussil Diwani Adalats
(courts of civil jurisdiction established in each district), Sadar Diwani
Adalats (civil courts of appeal) and Diwani Adalats. Subsequently, the Supreme
Courts of Calcutta (1773), Madras (1797) and Bombay (1797) were established
which also had appellate jurisdiction in civil matters.[19]
The hierarchy of court system was well cemented by 1908. It included
Subordinate Civil Courts with territorial and pecuniary jurisdiction, Courts of
District Judge (at District Level), High Courts and Supreme Court having
appellate jurisdiction in civil matters.
The community-based structures such
as ghana or shreni from ancient India were considered as most
capable mode of dispute resolution.[20]
The capabilities of such dispute resolution institutions were put to test by
British administration, as to check whether it would serve their interest (in
contrast to their common law tradition). However, it failed to yield the
desired level of interest and was evaded because of lack of cost-benefit ratio.[21]
Instead, the British rule managed to surface a legal order suitable to them.
b. Procedural Law and its complexities
In the initial era of British rule,
the courts largely relied on common law, statute laws (as it prevailed in
England) and various regulations made by Governor-General (example: Act of
1833). Post 1857, the Parliament (under the rule of the Queen) took over the
governance of India.[22]
Despite having a pluralistic society
at all spheres of society in India, British Parliament introduced new uniform
laws for administration of justice, for example Civil procedure Code (1861),
Indian Evidence Act (1872), Indian Penal Code (1860), Indian Contract Act
(1872) and Transfer of Property Act (1886). Though the seeds of a separate
judicial system for civil and criminal judicature were propagated by the Mughal
rulers, a segregated arrangement of the civil and criminal judicature was done
by the British rulers. The underlying idea behind introducing these laws was
developing a judicial structure and legislations convenient for British
officials and their administration.[23]
The legal development of India was designed to adapt trade and commercial
practices of British colonies and their respective traders and merchants. This
unique process of acculturation[24]
assured the legitimization of colonial practices.[25]
The trajectory of development of
Indian legal system had submerged the ancient tenets of Indian jurisprudence.
The statement is evident in itself as the current civil justice system formed
post –Independence was tailored in British styled judicial system only.
3.
Modern Civil Justice System
The attainment of independence (1947)
had given supreme powers to the policy makers to develop a legal system
suitable to Indian social and economic structure. The new legal system of India
was consolidated of systematic reforms of colonial laws. Unfortunately, these
reforms envisioned “western” concepts
of individual rights, secularism and equality. The new Indian Civil Justice
system reflected the canons of common law. Furthermore, the modern Indian legal
model respected the pluralistic order of its society, in respect to cultural
and religious multiplicity, alongside increasing State control. There was a
major dilution of “Indian” aspects of
peaceful settlement of civil cases. Moreover, it consists of various elements
which mirror the judicial system of British style.[26]
a. Judicial Structure: Hierarchy of courts
The objective of this part of the
research paper is to describe the unified judicial hierarchy of courts for
civil matters in current judicial system of India. Supreme Court stands on the
top of the pyramid as a final court of appeal. The Supreme Court consists of
Chief Justice of India alongside 33 other Judges appointed by the President.[27]
They can be removed on ground of proved misbehavior or incapacity.
The wide jurisdiction of Supreme
Court for cases of civil nature includes its original jurisdiction, appellate
and writ jurisdiction. Apex court deals with the disputes between or amongst
Union and State governments (Article 131). The writ jurisdiction under Article
32 appreciates various kinds of writs[28]
against actions of the State violating the rights of people. The Supreme Court
entertains appeals against civil and criminal cases if High Court verifies the
“Certificate of Appeal”[29]. Article
133 entails the procedure for jurisdiction of civil cases.[30] The
advisory jurisdiction[31] of
the Supreme Court to President and Special Leave Petition[32] is
yet another peculiar feature of Indian judiciary. The recent grown appellate
power against decisions of Tribunals has added to the existing burden of
Supreme Court.
High Courts stand next in the
judicial hierarchy after Supreme Court. * The High Courts are empowered to have
superintendence over sub-ordinate courts (except military and tribunals). It
also has a wider writ jurisdiction[33]
that Supreme Court followed by appellate jurisdiction against decree, order or
judgments of District Judges.
The next level on the hierarchy is
District Courts for civil and criminal matters. The courts entertaining the
civil cases are District Judge with original and appellate jurisdiction. They
hear appeal from sub-judges, Small Causes Courts, Family Courts, City Civil
Courts and Munsif courts. The last level of adjudicating authority along the
Indian judicial hierarchy is “nyaya
panchayats”.[34]
b. Procedural law and its complexities
The jurisprudence of civil law system
in India is symmetrical to the common and statute law of England. India had
tilted towards the adversarial system of procedural system for the civil
matters.[35] The
evidentiary system of litigation (in both civil and criminal system) is a
distinguishing feature in British model of judicial format. The underlying idea
behind this format was formation of an equation of win and loses. The decree or
order would favor one party and be rendered unfavorable to other, instead of
compromise or conciliation. India had lifted the procedural laws for civil
cases along the same lines.[36]
The legislations such as Civil
Procedure Code (1908) (herein after referred to as ‘CPC’) were inherited verbatim (as it is) in its letter and
spirit. The procedural code regulating the civil cases finds its genesis in the
first uniform Civil Code of Procedure (1859).[37]
The structure of proceedings encompasses myriad stages and procedural
technicalities from filing of complaint to the provisions of appeal, revision
and review. Amidst this, technical provisions such as filing of written
statements, rejoinders, examination of parties and their filed documents,
framing of the issues, examination of the parties/witnesses, oral arguments and
pronouncement of the judgment[38]
encapsulates a tiring proceeding. This procedure has a potential to delay the
cases for even twenty to thirty years[39],
inasmuch the appeals and review/revision petitions leaves the civil cases
pertaining to petty personal issues in waters of uncertainties.
III.
Magnitude
of Pendency of Civil Cases in Courts
Democratic set-up of the nation
strives for administration of justice. Judiciary being an integral part of this
set-up must ensure importing of constitutional values and ethical norms in the
judicial process, thereby promising speedy and equal justice.[40]
Thus, the efficiency and effectiveness of courts must be achieved at all levels
of the functioning. However, there are numerous challenges faced by the
judicial system that are necessary to be addressed in order to maintain order
in the society.[41]
Surprisingly, the Table 1.0 depicts the data of pendency of cases.
Pendency of cases in the Indian courts
|
S. NO.
|
COURTS
|
TOTAL PENDENCY
|
PENDENCY IN CRIMINAL CASES
|
PENDENCY IN CIVIL CASES
|
% OF CIVIL CASES
|
|
1.
|
SUPREME COURT
|
80481
|
17087
|
63394
|
78.77%
|
|
2.
|
HIGH COURTS
|
6183547
|
1755558
|
4427989
|
71.60%
|
|
3.
|
SUB-ORDINATE COURTS
|
44694397
|
33710625
|
10983772
|
24%
|
Table 1.0 Pendency of cases in
Supreme Court, High Courts and Sub-ordinate Courts[42]
The paper intends to highlight the
comparative analysis of the pendency of cases in civil and criminal cases in
India, which is the highest in Supreme Court, followed by that in the High
Courts. The magnitude of pendency of cases is evident from above figures. It
illustrates the unqualified need to spring novel approaches/reforms towards
dealing with growing backlog of cases in civil matters. Before that, it becomes
indispensable to learn the root causes of such backlog of cases. Amongst many,
the research accentuates few of those reasons that must be addressed for
policy-makers and higher judiciary, so as to frame the laws and guidelines
alongside.
IV.
REASONS OF PENDENCY IN CIVIL CASES
Civil Justice Committee Report (1924)
or the Rankin Report was the first initiative that highlighted the reasons for issue
of pendency and need of speedy and economical disposal of cases.[43]
Report of High Court Arrears Committee set up by S. R. Das (1949) criticized
delay in filling up judicial vacancies as reason for growing pendency.[44] Satish
Chandra Committee Report and Arrears Committee Report (1990) has made a
comprehensive and analytical study of various reasons for arrears of cases in
the courts such as increased litigation, plurality of appeals and radical
changes in the patterns of litigations.[45] 14th
Law Commission Report (1958) had also blamed unnecessary litigation and raised
the need to get rid of it.[46]
Civil Procedure Code (1908) is an
adjective law that prescribes the procedure for enforcement of legal rights by
a court. It enables to facilitate justice and further its ends.[47]
The procedural code has been amended subsequently owing to growing pendency in
cases of civil matters.[48]
However, it has failed to limit the institution of cases. The given amendments
focused upon loosening the procedural formalities. There still exists absence
of such provisions which could enable the disposal of civil cases such as
family disputes without referring to the courts. It is evident from the growing
menace of arrears in cases.[49]
The Amendment Act (1955) of CPC[50]
and Law Commission Report (1976) on ‘Reforms
in Judicial Administration’ had proposed
revision of CPC. However, it was unable to consider possible dimensions for restricting
the future litigation. It is worth mentioning that the Amendment Act of 1976
(CPC) was introduced solely aiming to expedite disposal of civil
suits/proceedings, fair trial and fair provisions for indigent parties. Later,
Malimath Committee was also formed which proposed ideals for policies for
speedy disposal of cases. In its pursuance, Amending Acts of 1999 and 2002 were
introduced placing caps of limits to filing of documents and rejoinders.[51] However,
subsequently the over-enthusiastic courts had frequently extended time for
filing of documents on petty requests of parties or lawyers, which fails to achieve
the objectives of proposed amendments of speedy trials.[52]
Another possible reason acquired in
the literature review was the actions of stakeholders such as lawyers or
litigants in the civil justice system. The casual and ignorant behavior of
lawyers and litigants causes burden to the arrears of cases and efficiency of
the courts.[53] The
acts or omissions on part of advocates such as frequent tendency to request
adjournments on false pretexts, filing of incomplete/inaccurate paper work,
non-payment of court fees or process fees, failure to serve summons or attend
objections by the courts, fails to uphold the ethics of the legal profession.
It affects the efficiency of courts which consequently hampers the sole purpose
of law and justice.[54] No
evidence could be found of any legal provision of rewards or remuneration that
encourages the lawyers (and parties) for non-institution of cases, except for
ADR mechanisms.
Mechanisms of ADRs[55]
are mentioned in s. 89 (CPC) and Arbitration and Conciliation Act[56]. The uncertainties in laws and excessive
judicial interventions[57]
makes the concept of arbitration ambiguous. The legislations and legal
provisions governing ADRs lack institutions of providing Arbitrators to
financially challenged parties. It ends up favoring dominant parties.[58] The
above reasons establish the need of research work on identifying solutions to
the increased pendency of cases.
V. SOLUTIONS TO THE PROBLEM: RETHINKING OF NOVEL APPROACH TOWARDS THE ISSUE
The abundance of institution of cases
and simultaneous slow disposal of cases has resulted in an imbalance of scales
of “justice”. The docked-up arrears
of cases of civil nature have invited the need to craft novel solutions,
driving away conventional ways of dealing pendency.
a. Procedural Reforms- Beyond formalized
procedure
The judicial system is to be
encouraged to function beyond the water-tight compartments of codified laws.
Civil courts have seldom valued the approach of pragmatism. The concept of pragmatism (within the judicial
contours) can be understood as referring to ethical principles that reflect
drops of culture, locality and history.[59]
The procedural aspect of judicial system is to be encouraged to function and
interpret the procedural laws beyond the water-tight compartments. The legal
cap on number of applications for injunctions and other interlocutory orders
must be placed. The lawyers and judicial officers must be sensitized about
issue of arrears of cases. The ethics and principles of harmony and solidarity
in cases pertaining to civil matters must be encouraged.
Furthermore, the code does not
explicitly carry any provision for case management mechanism. The Supreme Court
of India circulated the e-circular CIS 3.0[60]
in 2008. The circular pertains to Case Management System aiming to make
procedure litigant- friendly and transparent. However, the issue/challenge
regarding CIS system is the extent to which it has successfully penetrated in
the courts of various states.
The discontinuity of cases and
subsequent institution of cases also burdens the resources of the courts.[61]
The relevant provisions relating to case management must be introduced in
procedural law.
b. Weed out the unnecessary cases
The legislature must amend the
procedural law in such manner, so as to balance the role of stakeholders
(judges, lawyers and litigants) between the legal provisions (procedural) and
its undue burden on pending cases (civil in nature). For example, the
lawyers/advocates are an important part of the institution of judiciary.[62]
The increased scope of counselling
can reduce the number of potential and prospective litigants. Increased
documentation and free communication are few factors that prevent parties from
indulging in unwarranted legal mesh.[63] Ghosh
(2018) has concluded for a balanced approach between constraints on unnecessary
litigation and inclusive justice (including vulnerable and actual litigants).[64]
c. An empowered and Indianizeds
Alternate Dispute Resolution
The civil justice system in ancient
India reflected a personal issue to be remedied by personal interaction with
the mediator. The aggrieved and opposite parties used to be equally involved,
despite their caste or financial conditions. The decisions of the elders or councils were respected and abided by
without hesitance.
The dynamics between civil matters
and ADR is the most espousing equation in current legal system of India. The
current provision of section 89[65]
has limited scope and powers as compared to its need. There has been surge of
cases in matrimonial disputes, dysfunctional families, contractual breaches
between companies of various nations and varied forms of torts.[66]
The policy makers must reframe the ADR mechanism for civil matters in symmetry
with social structure of India. This will help re-introduce the ancient
doctrines of judicial settlement of India in lines with present global and
liberal economy.[67] The
proposed provisions must aim to induce a notion of finality and trust on the
awards granted in the ADRs. This would gradually pave path towards inducing the
seeds of settlement of disputes amongst community itself by aligning the morals
with karma and dharma.
VI.
CONCLUSION
“Ubi jus
ibi remedium”, which means “where there is a right, there is a remedy”, is
the underlying principle of civil justice system in India, adopted from British
legal system. The question is about its suitability to the Indian society.
Economic development, globalization, recognition of human rights such as
literacy and gender justice has raised the number of institution of cases of
civil nature. However, scarcity in resources of infrastructure and manpower has
delayed the rate of disposal of these cases. The consequences of such arrears
of cases are not unknown.
The fractured civil justice system in
India has resulted in overwhelming litigants. Consequently, the public
tolerance is put to test and tends to erode public trust and confidence on the
judicial institutions. The delayed proceedings and high arrears of cases dampen
the concept of social justice and economic development of India.
Therefore, there is a dire need to
opt for non-conventional approach such as reduce the institution of cases. The
cases of civil matters are domestic in nature concerned about personal
relations between family members and commercial trade relations. The
institution can be controlled by aligning the civil justice system
characteristics from ancient Indian jurisprudence.
[1] Professor (Law) and Research
Director, Centre for Comparative Studies in Personal Laws, National Law
University, Delhi
[3]Bhatia, K. L., et al., Delay: A
Riddle Wrapped in a Mystery Inside an Enigma, Journal of the Indian Law Institute, vol. 37, no. 1 42–72 JSTOR (1995)
[4]Refer to Page number 9
[5]Hiram E. Chodosh, Stephen A. Mayo,
A.M. Ahmadi & M. Abhishek Singhvi, Indian Civil
Justice System Reform: Limitation and Preservation of
the Adversarial Process, 30
N.Y.U. J. INT'l L. & POL. 1 (Fall 1997/Winter
1998).
[6]Krishnaswamy, S., K Sivakumar, S.,
& Bail, S. (2014). Legal and Judicial Reform in India: A Call for Systemic
and Empirical Approaches. Journal of National Law University Delhi, 2(1), 1-25.
https://doi.org/10.1177/2277401720140101
[7]Bernard S. Cohn, “Some notes on Law
and Change in North India, Economic
Development and Cultural Change” 8(1) page 79-93 (1959)
[8]Sama: It
includes practices such as appreciating the merits or personal qualities of the
parties followed by exploring any kind of relationships between parties. It
would be followed by explaining the advantages that would be ensued to both the
parties as a result of sama.
[9]L.N. Rangarajan, Kautilya : The
Arthashastra, Penguin Classics 92 (1992)
(Guna samkirtanam-praising the merits of others;
Samvandhopakhyanam- extolling common relationships; Parsparopakara
sandarsana-mutual benefit; Ayati pradarsana-future benefit; Atmopanidhana—finding
identity of interest)
[11]Dana is the actual deed to realise the
efforts made in conciliation. It works as a motivation and implies granting
favours or rewarding the opponent with money, exempting from taxes or giving employment
[12]Bhed
It is also akin to
coercion which is often played out in any difficult negotiation, where the
parties remain locked up in their stated positions.
[13]Raghavendra Vajpeyi, Term
Matsyanyaya in Kautilya Arthashastra Proceedings of the Indian History Congress
Vol. 34, Vol. I 64-69 (1973)
[14]Stephen B. Presser, “Marriage and
the Law: Time for a Divorce?” Cambridge University Press (2011).
[15]Werner Menski, “Ancient and Modern
Boundary Crossings Between Personal Laws and Civil Law in Composite India”,
SOAS 226 (2011)
[16]Rajendra Kumar M., Concept of
Judiciary in Ancient India, Global Research Analysis 9 (2013)
[17]Sathe, S. P. Review of Crisis of Indian Legal System, by
Upendra Baxi. Economic and
Political Weekly 18, no. 32: 1388–93 (1983)
http://www.jstor.org/stable/4372382. Also refer to Crisis of Indian Legal System
[18]Halperin, J.L., Western Legal
Transplant and India, Jindal Global
Law Review 2(1), 14 (2010)
[19]Soma Dey Sarkar, Rathin Bandyopadhyay,
Bidisha Bandyopadhyay, Administration of Civil Justice and Its Glorious
Uncertainty in the Indian Legal System: A Long, Expensive Journey to Justice, IGI Global
[20]Jaff (J), Layering Law upon Custom, The British in Colonial West India
(FIU Law Review) 10:85
[21]Elphinestone (M), Report on
Territory Conquered from Paishwa (originally published in 1821), Cambridge
University Press (2011)
[22]Woodroffe J.G. & Ameer Ali M.S.
Commentary on Code of Civil Procedure Act, 1908 (6th ed., Delhi: Delhi Law House)
(2015)
[24]Acculturation: cultural
modification of an individual, group, or people by adapting to or borrowing
traits from another culture (Merriam
Webster)
[26]Hiram E. Chodosh , Stephen A. Mayo,
A.M. Ahmadi & M. Abhishek Singhvi, Indian Civil Justice System Reform:
Limitation and Preservation of the Adversarial Process, N.Y.U. J. INT'l L.
& POL. 1 30 (1997).
[27]Constitution of India, Article 124
[28]Refer to Habeas Corpus, Quo
Warranto, Certiorari, Prohibition and Mandamas
[29]Constitution of India, Article 134A
[30]An appeal shall lie to the Supreme
Court from any judgment, decree or final order in a civil proceeding of a High
Court in the territory of India if the High Court certifies under article 134A-
(a)that the case involves a substantial question of
law of general importance; and
(b) That in the opinion of the High Court the said
question needs to be decided by the Supreme Court.
(2) Notwithstanding anything in article 132, any party
appealing to the Supreme Court under clause (1) may urge as one of the grounds
in such appeal that a substantial question of law as to the interpretation of
this Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no
appeal shall, unless Parliament by law otherwise provides, lie to the Supreme
Court from the judgment, decree or final order of one Judge of a High Court
[32]Constitution of India, Article 136:
Notwithstanding anything in this Chapter, the Supreme Court
may, in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India.
(2) Nothing in clause
(1) shall apply to any judgment, determination, and sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
* There must be a High Court for
each State and two or more states may have a common High Court.
[34]Dam, Sukumar, Judiciary in India, The Indian Journal of Political Science,
vol. 25, JSTOR 276–81 (1964)
[35]J.K. Das, Rethinking Theoretical Foundations
Of The Code Of Civil Procedure: Prospect And Retrospect, Journal of the Indian
Law Institute, January-March 2011, Vol. 53, 1-31(2011)
[37]The Code of Civil Procedure, 1859
(Act No. 8). Prior to the Code of 1859, the procedure of the mofussil courts was regulated by the
Special Acts and Regulations repealed by Act 10 of 1861
[38]Civil Procedure Code, 1908
[39]Department of Justice, National
Judicial Data Grid, Government of India (Welcome to NJDG - National
Judicial Data Grid (ecourts.gov.in) last
accessed on April 25, 2024 (around 30 thousand civil cases pending in
sub-ordinate courts which are more than 30 years old, around 54604 such
30-years old cases in High Courts and around 200 such 20-30 years old civil
cases in Supreme Court)
[40]Yashomati Ghosh, Indian Judiciary:
An Analysis of Cyclic Syndrome of Delay, Arrears and Pendency, Asian Journals of Legal Education, Vol.
5 (2017)
[42]Ibid. at 25 (refer to pendency of cases
20-30 years old in Supreme Court, High Courts or District Courts and Talukas)
[43]Civil Justice Committee 1924–1925.
[44]The increase in the workload of the
High Courts was observed by the High Courts’ Arrears Committee, 1949, as quoted
in the fourteenth Law Commission Report.
[45]Government of India, Report of the
Arrears Committee 1989–1990, http://dakshindia.org/wp-content/uploads/2016/08/Malimath-89-90.pdf
[46]Law Commission of India, Fourteenth
Report: Reform of Judicial Administration, at 64 (1958),
http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf
[47]Shalimar Chemical Works Ltd. v.
Surendra Oil, 2010 (8) UJ 3979 (SC): MANU/SC/0645/2010; A. P. Public Service
Commission v. Baloji Badhavath (2009) 5 SCC 1 : 2009 (4) UJ 1692 (SC)
[48]Civil Procedure Code (Amendment)
Act, 2002, Act no. 22 of 2002,
[49]As evident from the statistical
figures in NJDG (Welcome
to NJDG - National Judicial Data Grid (ecourts.gov.in)
[50]The Civil Procedure Code (Amendment
Bill) 1955 <jcb_01_1955_civil_procedure_bill.pdf
(eparlib.nic.in)>
[52]Saikh Salim Abdul Khyumsals v. Mr.
Kumar IR 2006 SC 396 : (2006) 1 SCC 46
[53]Re Sanjiv Dutta (1995) 3 SCC 619
[55]ADRs: It is a dispute settlement
method that is a very effective alternative to costly and time taking justice
delivery system in courts. Section 89 CPC deals with the resolution of disputes
outside the court by mode of conciliation, mediation, arbitration, Lok-Adalats
and other forms of judicial settlements. Arbitration and Conciliation Act, 1996
(A &C Act) based on the UNCITRAL Model Law on International Commercial
Arbitration, 1985 and UNCITRAL Conciliation Rules, 1980 was enacted. The Act
mainly focuses on the arbitration in disputes of domestic and commercial nature.
[56]An Act enacted by Legislature in
1996
[57]Refer to ONGC v Saw Pipes, (2003) 5
SCC 705, Phulchand Exports Ltd v. 0.0.0 Patrio (2011) (10) SCC 300 and
Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of
India (2019) 15 SCC 131
[58]Union of India v. MIS Singh
Builders Syndicate, (2009) 4 SCC 523
CIS 3.0 has
been developed by NIC Pune:
·
to
further opens the doors of
district judiciary digitalization towards the much awaited
e-filing, e-payments, & e-process
·
To enhance the existing CIS 2.0 based on the suggestions received for CIS 2.0
from all over the country through all the High courts
·
To move a step forward towards the ICJ visionary project of integrating the court,
police station, prison
·
In CIS 3.0 there are two types of enhancement made by the NIC Pune
(i)Technological enhancement
(ii)Functionalities enhancement
[62]T. Arvindandam v Satyapal (AIR
1977) SC 2421 (Krishna Iyyer J)
[63]Parthapratim Gupta, Avoiding
Litigation in Clinical Practice, Journal of Indian Association of Paediatric
Surgeons 24(3): p 158-161, Jul–Sep 2019.
[64]Ghosh, Y. (2018). Indian Judiciary:
An Analysis of the Cyclic Syndrome of Delay, Arrears and Pendency. Asian
Journal of Legal Education, 5(1), 21-39.
https://doi.org/10.1177/2322005817733566.
[66]Neelam Tyagi, Women, Matrimonial
Litigation and Alternative Dispute Resolution (ADR) 1 (2021)
[67]Harshita Bajla, Flaws of Ad-Hoc
Arbitration in India, 4 INDIAN J.L. & LEGAL RSCH. 1 (2022)
Article Information
LIMITING THE CASES OF CIVIL NATURE: A PROSPECTIVE SOLUTION TO PENDENCY IN JUDICIARY
Authors: PROF. (DR.) ANUPAMA GOEL, SOMIYA JOSHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/11/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.