Are People Losing Faith inthe Courts?
Contrary to popular belief, there is no litigation explosion. The data from the courts themselves suggests that fewer civil cases are being filed while criminal cases have been steadily increasing. This suggests that litigants are approaching the courts in fewer numbers, and may be resortingto other methods to resolve disputes. It may also be possible that the increase in criminal litigation could be attributed to the use of criminal law to resolve civil disputes.
A trailer for the Hindi film Jolly LLB 2 has a voice-over direly intoning the crisis in the Indian judiciary—3.5 crore cases pending, and only 21,000 judges to clear them (FoxStarHindi 2017). Yet, the voice of actor Akshay Kumar assures us, whenever two Indians have a dispute, they still tell each other, “See you in court.” The “Jolly LLB” series of films have probably done more than most in unpacking the many failings and shortcomings of our judicial system, and this trailer reassures us of the larger theme of the film; that the court is still where you must go to obtain justice in this country. It repeats, somewhat unthinkingly, the claim made by many judges, lawyers, policymakers and politicians: “the people” have faith in the judiciary.
Do they? A variant of this question was raised in an important paper written by Eisenberg et al (2013). Examining the data relating to civil litigation in the lower courts in India, they concluded that, contrary to popular myths of a“litigation explosion,” the rate of civil litigation in India is not as much as it should be for a country of its population and economic growth. The explanation they hinted at was that the high backlogs and the time it would take to clear the existing caseload were probably deterring litigants from approaching the courts. They looked specifically at data for high courts and district courts during 2005–10, but has anything changed in the seven years since? It has—but only for the worse.
Falling Rates of Civil Litigation
In the last few years, following the publication of Eisenberg et al’s paper in 2013, the number of civil cases filed per year has fallen in the district courts and in the trial courts in India (Prakash 2015). Data for the total number of civil cases filed in India dating back to 2005 is available in the various editions of Court News, published by the Supreme Court on a quarterly basis (though the data is not always the latest).1 Table 1 collates the data for the absolute number of civil cases filed every year in all the high courts and all district courts in India.
After an initial rise, the number of cases in both the high courts and the district courts seem to have plateaued out, and then started to decline around 2013, the slight uptick in 2016 notwithstanding.
The same, however, cannot be said for criminal cases, as Table 2, comparing criminal cases filed in the high courts and the district courts during 2005–16, shows.
The steady increase in criminal cases is in clear contrast to the plateauing and decline in civil cases in India. This has meant that criminal cases are forming a greater percentage of cases filed in courts over the years, quite contrary to what should be expected for a country that is experiencing the kind of economic growth that India has been seeing (Eisenberg et al 2013). Across both trial courts and the high courts, it is clear that civil cases are forming a lesser and lesser portion of the total number of cases filed in these courts.
The fall in civil litigation might be attributable to the proliferation of tribunals. Two major tribunals that have started functioning in the last five years are the National Green Tribunal and the Armed Forces Tribunal. While a lot of pending cases were transferred to these tribunals, the actual filing of new cases, in the order of tens of thousands (Economic Times 2017) and mostly relating to cases that might otherwise have been filed in the high courts, does not explain the drop fully.
It is also unlikely that alternative dispute resolution mechanisms are contributing to this fall in the number of cases filed. Arbitration, while popular in commercial cases, will still ultimately end up in the formal judicial system, either by way of appeals or for enforcement of the award, if not during the arbitration for interim relief or directions to the arbitrator. While mediation is also generally availed of in matrimonial cases, even where there is a well-functioning mediation centre, it handles only a fraction of the cases filed in court, and very few cases are referred to it pre-litigation (Kumar et al 2016).
Another explanation could be that the courts may have changed the way they record cases. This was an issue highlighted by Eisenberg et al (2013) and is something that the judiciary is working on. The effort is to have a uniform system of counting cases across the country. There are, however, no sudden steep drops in filing due to a change in the manner of counting cases; we see a plateau and then a decline across multiple years.
It is possible that parties are using the criminal justice system to settle what would otherwise have been civil cases. Anecdotally known, many businesses and individuals have been filing charges of cheating and breach of trust to recover or collect payments due to them. This phenomenon would explain at least some of the fall in the civil cases and some of the increase in the criminal cases. This would also be borne outby the National Crime Records Bureau data relating to cheating and criminal breach of trust cases, which have increased steadily during 2006–15 (the last year for which figures are available). It is interesting to note that the number of cheating cases has more than doubled in this time period, while other economic offences have registered less substantial increases. However, the absolute number of such cases is still in the orderof 1 lakh or so, and does not explain the fall in civil litigation, even if it is assumed that every single cheating case is just a civil dispute being fought in the criminal courts.
Perhaps, the explanation may lie in something simpler and far more troubling: people may just be losing faith in the judicial system. Those with a civil claim may be finding other ways tosettle it or simply letting it go, preferring to take the hit rather than find themselves embroiled in a long-pending and expensive case in court. This is also hinted at by Eisenberg et al (2013), and the disillusionment with the courts may only be increasing.
While these numbers are publicly available and put out by the Supreme Court itself, there has been no substantive discussion on what this data means and what should be done about it. One hopes there is a simpler explanation to allay one’s fears about the place of courts in the Indian republic. One fears there may not be one.
1 All the editions of Court News are available at http://sci.nic.in/courtnews.htm.
2 All figures for 2016 in this article were available only up to the end of September 2016. The annual figure has been arrived at by extrapolating the total number of cases based on past patterns in filing during the year.
Business Standard (2017): “Madras High Court Grants Bail to Stayzilla CEO,” 11 April, viewed on 13 April 2017, http://www.business-standard.com/article/pti-stories/madras-high-court-grants-bail-to-stayzilla-ceo-117041100908_1.html.
Economic Times (2017): “NGT Disposed of Over 19,000 Cases from 2011–17,” 11 April, viewed on 13 April 2017, http://economictimes.indiatimes.com/news/politics-and-nation/ngt-disposed-of-over-19000-cases-from-2011-17/articleshow/58128891.cms.
Eisenberg, Theodore, Sital Kalantry and NickRobinson (2013): “Litigation as a Measure of Well-Being,” DePaul Law Review, Vol 62, No 2,pp 247–92.
FoxStarHindi (2017): “Jolly LLB 2 | New Trailer | Akshay Kumar | Huma Qureshi | Subhash Kapoor,” 7 February, viewed on 13 April 2017, https://www.youtube.com/watch?v=q07SQFmL4rM.
Kumar, Alok Prasanna, Ameen Jauhar, Kritika Vohra and Ishana Tripathi (2016): “Strengthening Mediation in India: Interim Report on Court Annexed Mediations,” Vidhi Centre for Legal Policy, July, New Delhi, http://vidhilegalpolicy.in/reports-1/2016/7/25/strengthening-mediation-in-india-an-interim-report-on-court-annexed-mediations.
Prakash, Surya (2015): “Are More Fresh Filings Causing Judicial Pendency?,” DAKSH, 15 December, Bengaluru, viewed on 13 April 2017, http://dakshindia.org/are-more-fresh-filings-causing-judicial-pendency/.
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