Did you ever sue your tenant for illegal occupation? Have you dared to take the civic body or the power utility to court for having delayed water or electricity connection to your house? When did you last track the complaint you had filed about a client's cheque that had bounced? What is the fate of the suit filed against that fraudulent housing society for having decamped with your and other members' initial deposits? Or the accident claim on your car against which the insurance company has gone to high court in appeal?

If you have faced any of these situations, or anything else that did bring you within saluting distance of the court, then it is quite likely that the years had passed you by before even the final arguments could begin. The majority of the cases pending before the high courts, after having travelled all the way up from the sessions or the civil courts, are more than three years old. In Delhi, compensation cases under the Land Acquisition Act started during the 1982 Asian Games construction boom are continuing even today. In Kolkata, a woman who had gone to court nine years ago after being denied a seat in a college won her case last month when the high court ordered the college to admit her.

The Constitution promises to all citizens, "Justice, social, economic and political". But the road to justice is blocked by a breathtaking 23.4 million pending cases, docketed in the high courts and subordinate courts. Two-thirds of these cases are pending in criminal courts, the rest in civil courts. In addition, there are mountains of arrears choking such quasi-judicial forums as the MRTP Commission, consumer forums, tribunals of income tax and customs and excise, the Company Law Board, and the tribunal for debt recovery. If a case could be disposed of every second, and the courts worked round the clock without admitting a single new suit, it would still have taken a full year to clear all the arrears.

But the docket pressure keeps mounting. Each year the disposal of cases in the high courts has been less than the number of new cases instituted. A decade ago, a high court judge dealt with around 3,500 cases in an average year. The number has now shot up to 5,358. The load of cases is lesser for the subordinate judges, with each handling 1,661 cases per year. But the lightness of his work is deceptive. While the high courts hear appeals and writs, the lower courts are deluged with procedural formalities. The very first official command of the court-that of serving summons on the defendant or the accused-is often kept on hold for years as the addressee stubbornly refuses to put his signature on the acknowledgement slip. Sending summons by private courier or fax is a recent innovation but it is yet to make a dent in the huge number of their unavailable recipients.

Then comes, in criminal cases, the inordinate delay in framing charges. In many cases involving powerful people, where the line of investigation is remote-controlled from the top, the delay kills all chances of prosecution, with witnesses turning hostile and evidence drying up. In civil matters, the simple process of recording of a defence statement may take years, particularly if the defendant does not have much of a case but has an interest in delaying justice. An integral part of the stalling tactics employed in courts is the adjournment game in which some lawyers specialise. The recently amended Code of Civil Procedure has provided a limit of three adjournments but it is yet to be put into effect.

The crowding of courts is compounded by the tardiness of the legal procedure and the common man's aversion to it. A classic example is matrimonial disputes. Their number, according to one estimate, runs close to a million. Yet nine out of 10 matrimonial disputes get settled out of court. The fact that most divorce cases do not stay in the courts is, as former law minister Arun Jaitley says, "a reality the world over today, as people do not waste their lives and they get tired at some stage". However, while causing a burden on civil courts, they keep attracting corresponding prosecution under various provisions of the Indian Penal Code-for torture, criminal assault, even attempt to murder. Thus a marriage that had gone sour and could be settled by a financial compensation, drags on for years with half a dozen civil and criminal cases.

In many other civil matters, litigants are seeking quicker solutions through arm-twisting by criminal cases. Recovery suits are dilatory, so these are becoming a criminal matter, presented as non-payment of dues. High courts may take 20 years to dispose of suits on the original side. So these commercial disputes are being converted into breach of trust, or cheating, cases. Property disputes are regularly being dovetailed with their criminal sibling-trespass. Civil disputes cases are being filed in several cities, taking no chances, a phenomenon that prompted a retired Supreme Court judge to compare them to "AK-56-style of shooting". The resultant multiplication of suits, plus the sitting load of cases, has made the judicial system unworkable. At the present rate of disposal, the number of pending cases before the high courts alone will cross 10 million
by 2010.

The Supreme Court's recent directive of increasing the number of judges from 12,600 at present to 50,000 aims at lessening the load on the courts

Each year, the disposal of cases in the high courts has been less than the sum of new cases instituted.

The State is addressing the problem in two different ways. The first seeks to carry out a recent Supreme Court directive of increasing the number of judges from 12,600 at present to 50,000. The task is easier said than done. The state governments pay all judges except those of the Supreme Court. But the state exchequers are running on empty. The Centre is setting up 1,734 fast-track courts at the sessions court level, 1,074 of which have come up already. Computerisation of lists in the high courts in the four metros has begun eliminating manipulation of dates. The family courts-34 being added this year to the 85 functioning-are taking away a chunk of matrimonial suits. The Lok Adalat promises to bring disputes concerning public utilities-like electricity or water supply-within its ambit.

Still, the basic reality is: justice needs judges. And the shortfall in judges turns every innovation into a mockery. There are talks of lowering judges' entry barriers, such as the number of years that a candidate must have practised at the bar, but that may lead to a drastic compromise on quality.

While getting more judges may, at best, require more time, the Union Government is looking for a clever shortcut in streamlining the procedures. The Code of Civil Procedure (Amendment) Act, 2002, is a milestone covered, though its implementation may take years (see box). However, it is on the side of criminal jurisprudence that a new vista is being explored.

A high court judge deals with 5,358 cases in a year. Judges in subordinate courts handle 1,661 cases.

The worst affliction of the criminal justice system is not that it is clogged with cases, which sure it is, but that it is simply unable to punish the guilty. For heinous crimes, the conviction rate in India is an amazingly low 6.5 per cent, meaning that there is a 93.5 per cent chance to get away with murder, literally. In criminal cases, the proof must be beyond reasonable doubt. Criminals elude the clutches of law by using this evidential escape hatch. In the process, investigators are bribed, witnesses are suborned and material facts are altered at the trial stage. All the while, the accused is "protected" in several ways. He is guaranteed a "right of silence" as the Constitution forbids compelling an accused to be a witness against himself. At the other end of the ethical spectrum, the victim can hardly participate in the trial as he has no right to lead evidence or to cross-examine witnesses (it happens only in Bollywood films). As trial begins, the balance of power has already shifted far away from the victim towards the accused. A loose anti-perjury legislation-perjury being the offence of telling a lie on oath-allows hired witnesses to change the complexion of the trial. The inability of the law to pin down witnesses to their previous statements leads to eyewitnesses changing their script in trial courts. Finally, it is the turn of the evidence to fade out. There have been innumerable instances of material evidence, including murder weapons, disappearing from prosecution custody over the years.

The Committee of Reforms of Criminal Justice System, headed by former Karnataka and Kerala High Court chief justice Dr V.S. Malimath, which is expected to submit its report this month, may change the basic paradigm of criminal trial. It may seek to undo the systemic flaws that permit judges to exalt a criminal's right over that of the victim: a Constitution that protects the accused from self-incrimination; a legal system that is unable to punish the perjurer; and a police administration not accountable for its failures. The crucial task of the committee, as Justice Malimath explained to India Today in a rare interview, is "to bring the focus back from the accused to the victim".

While a change in judicial outlook, and the consequent procedural shifts, can make criminal trials more successful, the trouble still lies in the large numbers. The new thinking is to divide criminal cases in three categories: serious, medium and soft. The "soft" cases are indeed the petty cases-ranging from illegal gambling to urinating in a public place. While these ought to attract penalties only, the present laws provide for punishment to these offenders-the wages of killing someone's chicken still being two years' imprisonment, or fine, or both. Holding summary trials of these none-too-dangerous lawbreakers, with penalties alone, will ease docket pressure at the criminal courts by at least a half.

The changes in judicial outlook are just as important as expanding the courts. The country of a billion people surely needs at least one lakh judges, the Supreme Court target of 50,000 being only a half of it. But the justice that the Constitution promises also carries a guarantee of quality. So far that guarantee has been overlooked. The trick will certainly not endure the test of today.