The State and not courts alone should ease the judiciary's burden: Reflecting on the pecuniary jurisdiction change

Recently, a 7-judge committee appointed by the Full Court of the Delhi High Court recommended increasing the pecuniary jurisdiction of Delhi district courts to ₹10 crore. This means that suits and other original civil cases valued up to ₹9,99,99,999 at the time of institution will be heard and decided by the relevant district court and only cases valued at ₹10 crore and above will be heard and decided by the Delhi High Court’s Original Side benches.

Although framed as a recommendation for increase in the pecuniary jurisdiction of the district courts, which are under the administrative supervision of the Delhi High Court, in effect, the recommendation raises the pecuniary threshold for approaching the Original Side of the High Court from ₹2 crore to ₹10 crore. If accepted, Section 5(2) of the Delhi High Court Act, 1966, which confers ordinary original civil jurisdiction upon the Delhi High Court, will require amendment. The Delhi High Court is one of only five high courts in the country vested with such a power.

Challengers will doubtlessly contest the Court’s authority to weigh in on its own pecuniary jurisdiction – a legislative power not conferred upon the High Court in writing. The devastation – partial or total – to individual practices as well as entire practice areas has been hotly debated since the recommendation became public.

However, what lies at the heart of the issue is a deeply overburdened court unable to carry out its own mandate. Delhi High Court benches regularly sit well beyond the notified court hours of 10:30 AM to 4:30 PM in addition to long hours in chambers and, yet, often struggle in earnest to complete the day’s cause list. The present conditions are hard on all stakeholders, including court staff and counsel working equally long hours as a result, and litigants whose grievances are nevertheless left without redressal for months and years on end.

As a practitioner, I have often viewed my High Court’s disposition to be premised on 3 cardinal principles – justice, efficiency and pragmatism. Perhaps not the most exciting in a law textbook, but in reality, these principles have helped to evolve one of the country’s youngest high courts into one of its finest.

Recommending an increase in pecuniary jurisdiction could be viewed as a tactful way to address the overburden, which may bring about more timely and effective hearings for a larger number of litigants. The resourcefulness and simplicity of the move is, to me, a standout feature of the Delhi High Court. The cost upfront, however, will be to practitioners at the Bar.

It remains unclear at this stage whether and to what extent the district courts will receive the necessary support in the form of urgent infrastructural upgrades, increase in the sanctioned strength of judges, increase in court staff, improvement in case management systems etc to incorporate an exponentially larger catalogue of cases. If the net result of the recommended change in pecuniary jurisdiction will be to shift the problem from one forum to another, then the cause of justice would continue to suffer.

However, while we at the Delhi High Court Bar duly remonstrate against the recommended change in the Court’s pecuniary jurisdiction, the lack of stakeholder consultation and the suddenness of it all, an important facet has gone unnoticed.

Pendency in the judiciary cannot be viewed in a bubble or isolated from governmental/State neglect and non-participation in valuable institutional dialogue to bring about an increase in the courts’ ability to adjudicate effectively. ‘State’ here envisions both the executive and legislative branches: the elected government. Just as it is the State’s prerogative to determine the pecuniary jurisdiction of the High Court (by legislative amendment to the Delhi High Court Act, 1966), it is also the State’s responsibility to facilitate appointments of judges and enact relevant amendments that have a clear and direct effect on pendency.

Today, with a sanctioned strength of 60 judges, the Delhi High Court comprises only 44 judges, with 16 vacancies still pending. In the past 3 years (since January 1, 2023), there have been only 3 elevations from the Delhi High Court Bar, while 16 other posts have been filled through 7 intra-High Court transfers (excluding the Chief Justice) and 9 elevations from the district courts.

Although pendency is equally a problem of governance, the responsibility for it has been shouldered almost entirely by the Indian judiciary. Some long-awaited State reforms in civil law are as under. Although contextually ad hominem, these are likely to benefit civil courts and litigants across the country.

1. Maintaining the full sanctioned strength at all times - A court cannot be expected to survive at less than three-fourths of its sanctioned strength; in this case, with a 27% vacancy. Judicial vacancies seldom come as a surprise, since the retirement age of judges is fixed. Vacancies should be filled swiftly, relying on the wisdom and expertise of the Collegium and procedure established by law.

2. Amending the Code of Civil Procedure (CPC), 1908 as regards costs - Payment of costs of litigation – on actuals – by an unsuccessful litigant should be the rule as per statute. A limited exception may be that each party bears its own costs. Litigation that is frivolous, ill-intentioned, privileged or simply obstinate ought to be statutorily disincentivised. Litigants before the Delhi High Court tend to incur expenditure running into lakhs of rupees towards legal fees. True justice would require that the successful litigant is compensated for at least a substantial portion of the costs incurred. The Arbitration and Conciliation Act, 1996 already contemplates such a cost regime for parties that are usually companies and commercial entities. There is no reason to deprive civil litigants of the same benefit.

3. Amending the Court Fees Act, 1870 - The court fees to be deposited at the time of instituting a suit or other civil proceeding must be proportionate (ad valorem) to its monetary value. Fixed court fees should be done away with completely. Like with costs, this would serve to disincentivise insincere litigation. There must also be robust exceptions for litigants who cannot afford court fees, without impeding their access to urgent relief.

4. Amending the CPC as regards adjournments in old cases - In all matters older than 10 years, adjournment shall be granted only by a reasoned order.

Despite decades of struggling with high pendency, successive governments have failed to implement any meaningful reform to address the underlying systemic issues. The greatest cost of high pendency is that it erodes the faith of the people in the justice delivery system and in governance itself. The immense fatigue of the individuals placed within the system is an invisible cost. Institutions across India are on the brink of prostration as a result of poor governance. Governments that cannot engage meaningfully and preserve institutions will not survive the rigour of the Indian democratic process.

Notwithstanding the (attempted) symptomatic treatment of judicial overburden with, in this case, a change in pecuniary jurisdiction, we await real and meaningful change through responsible governance to improve the faltering justice delivery system in India.

Sanam Tripathi is an advocate practicing before the Delhi High Court, the Supreme Court of India and courts and tribunals in Delhi.