Broken courts, uneven justice
MADAN B. LOKUR
THE problems confronting the judiciary today have been around for almost 100 years. Some of them have been documented from time to time beginning with the Justice Rankin Committee Report of 1926. However, over this extended period we seem to have regressed, slowly but surely, and today we are virtually at the point of no return. I propose to consider two ‘perennial’ problems and possible solutions.
Do we require more judges? The predominant conversation or focus, of late, has been on the number of judges required for an efficient justice delivery system. The Law Commission of India (LCI) in its 120th report (1987) introduced the concept of judge-population ratio. It was noted that we have 10.5 judges per million population while countries like Australia and the United States have between 41 and 107 judges per million population. The LCI recommended we have at least 50 judges per million population.
The recommendation was accepted by the Supreme Court about 15 years later in the All India Judges Association case.1 The court directed that an increase in judge strength ‘should be effected and implemented with the filling up of the posts in a phased manner …but this process should be completed and the increased vacancies and posts filled within a period of five years from today. Perhaps increasing the judge strength by 10 per 10 lakh people every year could be one of the methods which may be adopted thereby completing the first stage within five years before embarking on further increase if necessary.’
Almost 20 years later, we are nowhere near complying with the directions of the Supreme Court. For a population of 1.38 billion, the total present sanctioned strength of judges in the district courts is 23,413 and in the High Courts it is 1079. On these figures, it is clear that the Indian judiciary has achieved a judge-population ratio of 17.7 judges per million population.2 But there are a total of 5,589 unfilled vacancies thereby reducing the working strength to 18,903 judges.
In reality the real number of working judges per million population is only 13.7. So, after 20 years the judge-population ratio in India has actually increased by only 3.7 per million. The figures mentioned in the Economic Survey 2018-19 provide an even more dismal picture.3 Even the most optimistic observer will accept that implementing the direction of the Supreme Court in letter and spirit is impossible.
Even on a staggered basis it is not realistically possible to get such a large number of competent judges. Second, it wouldn’t be possible to get the support staff required. An unpublished study conducted by the Asian Development Bank (in which I was involved) showed that a staff of eight is required per judge. Third, it is not possible for the state or central government to arrange for necessary finances and infrastructure. Finally, with an increase in population of 14 million per year, we are looking at creating, every year, an additional 700 posts for judges – and eight times more for staff – to achieve the target of 50 per million population. I dare say, and repeat, this is impossible.
The Law Commission of India in its 245th report (2014) changed tack and suggested a different method of calculating the required number of judges. The number of cases instituted in different parts of the country varies and therefore a more scientific basis for calculating the requirement of judges would be to introduce the ‘Rate of Disposal Method to calculate the number of additional judges required to clear the backlog of cases as well as to ensure that new backlog is not created as more pragmatic and useful. This method, generally speaking, addresses two important concerns: (a) a large existing backlog of cases and (b) new [cases] being instituted daily which are adding to the backlog.’
Illustratively, in Bihar, taking the existing backlog into consideration and accounting for new intake, the Law Commission report worked out that on a timeline of between one to three years there was a need for between 360 and 978 additional judges in the higher judicial service and between 1788 and 5035 in the subordinate judicial service. Delhi would need between 25 and 93 additional judges and between 0 and 78 in the higher and subordinate judicial service respectively. For Gujarat, the figures were between 54 and 224 additional judges and between 449 and 1677 in the higher and subordinate judicial service respectively. Similar calculations were made for 11 other district courts based on figures supplied to the LCI by their High Courts.
Today, six years later, these figures have become irrelevant. The pandemic and consequent lockdown and closure or minimal working of courts has made these calculations completely meaningless. Moreover, the problem of finances and infrastructure have not been addressed by the LCI.
The Economic Survey 2018-19 provides a third perspective by introducing the concept of Annual Disposal Rate (per judge). This confounds the existing confusion. This concept proceeds on the basis that on average, a judge in the district court disposes of 746 cases annually.
Taking the total number of cases instituted in 2018, the Economic Survey found that 89% of them were decided. Thus, the Case Clearance Rate was taken as 89%. Therefore, to achieve 100% case clearance an additional 2,279 judges would be needed and this is within the already sanctioned strength of 22,750 judges (the working strength being 17,891 judges). In other words, the sanctioned strength of judges is more than adequate and need not be increased. However, just to clear the backlog over the next five years, the Economic Survey calculates that 8152 judges are needed: ‘This is no more than a rough calculation, but it shows that efficiency gains are also required.’
As far as the High Courts are concerned, the Economic Survey projects 93 High Court judges are required to achieve 100% Case Clearance Rate in a year. This too is well within the present sanctioned strength of High Court judges. However, 361 additional High Court judges are required to clear the existing backlog in five years. As far as the Supreme Court is concerned, the requirement is only one judge for achieving 100% Case Clearance Rate in a year and eight judges for clearing the existing backlog in five years.4
The second biggest problem confronting the judiciary is the number of cases on the docket of the district and the High Courts. The caseload is phenomenal and increasing. In July 2020, the National Judicial Data Grid showed 33.46 million cases were pending in district courts and 4.42 million in the High Courts.5 Three months later, thanks again to the Covid pandemic, the figure has risen to 34.59 million in the district courts and 5.21 million in the High Courts.6
The government of India and its ‘agencies’ are the biggest litigants in the country. A government report, ‘Government Litigation: An Introduction (2018)’ states that ‘Though no verifiable data is available, various sources, including a recent document by the Ministry of Law & Justice, state that the government, including public sector undertakings (PSUs) and other autonomous bodies, are party to around "46 per cent" of court cases.’7 Seemingly, this does not include court cases in which the state governments, their agencies (including municipalities) and union territory governments are a party. If these were taken into account the percentage would rise well above the 50% mark.
With a view to curtail government litigation, the Government of India did introduce a National Litigation Policy (2010) but it has not had any appreciable effect. This policy was to be reformulated in 2015 but except for announcing a proposal, no further steps appear to have been taken. In 2017, an Action Plan to Reduce Government Litigation was announced but apart from a power point presentation, there has been no positive outcome of this exercise.8
Despite several state and central formulations for reducing government implicated litigation, over the last decade, litigation where one or other government is party seems to have increased.
The two principal problems facing the Indian judiciary are a shortfall in the number of judges and an enormous caseload. Can these issues be tackled and if so, how? Caseload management offers a partial but significant solution. It is an art but little attention has been paid to it. Some judges in the district courts have far too many cases on their docket while others have a manageable number. Caseload management requires verifiable data, which is unfortunately not easily available. It also needs overseeing district and high court judges to intervene proactively in case distribution.
In the absence of any policy on distribution of cases, matters drift. Realizing that caseload management requires a managerial exercise to be carried out, the 13th Finance Commission had recommended that each district should have one court manager and each High Court should have two court managers to assist the judges. Unfortunately, the recommendation was not earnestly implemented and subsequently given up.
In the absence of any caseload management, means it becomes impossible to carry out an impartial performance assessment of the abilities and capabilities of a judge. Effective performance audits would allow for correctives to be applied through state judicial academies which could assist judges to improve performance and help them iron out weaknesses.
The absence of case load management compounds the problem of delay. The India Justice Report, 2019 points out that on average in the district courts, it takes between 2.7 years and 9.5 years for the disposal of a case.9 This is unacceptable. Trial court judgements are of course subject to appeal and the appellate process which also takes its own time adds to further delay.
The National Judicial Data Grid tragically reveals that in the district courts and High Courts there are more than 85,000 cases each pending for over 30 years. Whichever way one approaches the problem, there simply cannot be any justification for keeping cases pending for years together.
To make any progress the first order of business must be to implement the case management system and frame uniform rules across all courts at every level. As early as 2005 a committee headed by Justice M. Jagannadha Rao, a retired judge of the Supreme Court and chairperson of the Law Commission, undertook the laborious exercise of drafting the Model Caseload Management Rules for all civil and criminal cases, both at the trial and the appellate stage. The Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India10 accepted these rules.
Daksh, a civil society organization based in Bengaluru, in its report, Case Flow Management Rules in India (2017), notes the rules, ‘have not been enacted uniformly across the High Courts. As on date, 17 High Courts [out of 24 at that time] have brought Case Flow Management Rules into effect. In some states, the Rules cover only subordinate courts, while in others they cover only civil courts.’11 It is common knowledge that even where framed, the rules have not been implemented. In its absence, we can expect the already crumbling system to collapse entirely under its own self-inflicted burden.
Let us look at the proactive involvement of decision and policy makers.
1. Policy and Plan: Several solutions are available to tackle the manifold problems facing the Indian judiciary, but too often there is no political will or internal leadership interested in implementing them. An attempt was made in 2012 when the the Chief Justice of India12 released the National Court Management Systems Policy and Action Plan. Unfortunately, this action plan has not been taken seriously and therefore not implemented and eight years later, it has lost its efficacy.
2. Mediation: There are other methods of curtailing litigation. Firstly, vigorous implementation of the 2002 amendment to the Civil Procedure Code (CPC) and the 2006 amendment to the Code of Criminal Procedure (CrPC) which offer the judiciary readily available tools to improve efficiencies in disposal. The 2002 amendment to the CPC urges judges and the litigating parties to attempt a resolution of their disputes through mediation outside the court system but under its aegis (referred to as court annexed mediation). Used frequently, mediation could reduce the load on the courts as well as give litigants the satisfaction of early and inexpensive closure.
Mediation centres in Delhi’s district courts have successfully mediated over 2,10,000 cases (including connected cases).13 The movement for mediation is slowly gaining traction, but it must be recognized that importance was given to it way back in 2005 by the then Chief Justice of India R.C. Lahoti. Fifteen years is a long time for effective implementation of a law.
3. Plea Bargain: A 2006 CrPC amendment introduces plea bargaining. This involves a mutually satisfactory disposition of criminal cases that do not relate to heinous offences or offences against women and children along with a few other exceptions. More importantly, a plea bargain is possible only if the victim is satisfied. The process is simple, effective and expeditious. Unfortunately, plea bargaining has not received the blessings of any Chief Justice since 2006 and therefore remains a dead letter.
4. Finality to Local Laws: Laws enacted by Parliament are applicable throughout the country and those by state legislatures are applicable only to the concerned state. The interpretation of laws enacted by the state legislatures must achieve finality in the High Court of the state. There is no reason why the Supreme Court should interpret local laws or laws that do not have an impact throughout the country and only apply to one state. If the High Court of a state dons the role of the Supreme Court of that state, it will not only reduce the burden of litigation on the Supreme Court but also make justice delivery more accessible and affordable to litigants. Of course, if the decision given by the High Court is not acceptable, it can always be reviewed or overruled by a larger bench of judges of that High Court.
5. Judicial Restraint: Many years ago, the Supreme Court had expressed the view that if an order is within the jurisdiction of the authorities, whether it is right or wrong, the High Court should not interfere with it under Article 226 of the Constitution.14 This principle should be applicable not only to orders passed by the executive but also to orders passed by courts. The reason is that no court can correct every erroneous decision and it should not even venture to do so.
This is not to say that every decision should be accepted as correct but there should be a judicious mix of discretion and circumspection by a court while deciding when to interfere with an order passed by the executive or by another judge. If courts spend time on correcting orders having little or no significance or raising trivial issues, they are bound to get bogged down thereby sacrificing efficiency and, in a larger context, access to speedy justice by millions of litigants.
For example, if a person is granted anticipatory or regular bail, the order should not be interfered with by a superior court, unless it is perverse – cancellation of bail results in loss of personal liberty. Similarly, in civil cases, grant or refusal of an injunction or amendment of a written statement should not be interfered with. The CPC makes provision for the review of an erroneous judgement and there is also an appeal process provided in the hierarchy of courts. Therefore, it is not as if a litigant is left helpless and without a remedy against an erroneous order but at some point in time, there must be finality attached, even to an erroneous order.
6. Substantial Questions of Law: As far as the Supreme Court is concerned, the Constitution of India has a few very important provisions which unfortunately have been victims of desuetude. Broadly speaking, Article 132 of the Constitution provides for an appeal to the Supreme Court on a certificate given by the High Court deciding the case that it involves a substantial question of law as to the interpretation of the Constitution; Article 133 provides for an appeal to the Supreme Court if the High Court certifies that the case involves a substantial question of law of general importance and in its opinion that question needs to be decided by the Supreme Court; Article 134 provides for an appeal to the Supreme Court in a criminal case under certain circumstances, including in a case where the High Court certifies the case as fit for appeal.
If the application of these constitutional provisions is insisted upon, there is no doubt that the assistance given by lawyers to the High Courts in the first instance would greatly improve and thereby the quality of judgements delivered by the High Court would also greatly improve. Additionally, access to justice coupled with relatively inexpensive justice for litigants would be collateral benefits. Unfortunately, now the flavour of the day is to ignore the constitutional provisions by routinely filing a special leave petition under Article 136 of the Constitution which overloads the Supreme Court, jacks up lawyer’s fees and delays justice delivery.
7. Technology: Finally, the importance of technology in justice delivery cannot be overstated. It plays a pivotal role in access to justice. A very large number of processes can be (and have been) streamlined through technology, as has been demonstrated in Phase II of the eCourts project. Timely issuance and service of summons, deposit of dues and fines in the courts and obtaining a record of case proceedings have traditionally been extremely burdensome and frustrate litigants and lawyers. However, these issues have been sorted out with comparative ease through effective use of technology.
Policy and decision makers need to think of the future and better utilization of services through the Internet, as the pandemic which shut down the courts for a couple of months, has shown.
Online courts and virtual courts that were contemplated for a long time are now in actual use and video conferencing has become the norm at least in the higher courts. True, there are some perceived disadvantages in conducting cases through video conferencing. For example, it is not easy for a judge to assess the demeanour of a witness or for a prisoner to instruct his or her lawyer or for judges to consult one another. Over times with use these concerns will be resolved. There will perhaps be a greater need to rely on written rather than oral submissions. Some lawyers might not like this, but the interests of litigants and justice delivery have to be placed on a higher pedestal.
Today, access to information is easily available and affordable. Gone are the days when a litigant had to chase a lawyer’s clerk (and perhaps pay some speed money) to get hold of the result of a hearing. Research through available data and judgements on the Internet have made life much simpler for judges and policy makers. And yet, utilization of technology remains minuscule.
Hopefully, Phase III of the eCourts project will build on the foundation laid by the earlier two phases resulting in the evolution of a hybrid system where there is a balanced mix of physical hearings, online hearings and virtual courts coupled with an acceptance of the importance of written submissions being supplemented by oral submissions. A huge change in mindset is required from all stakeholders in justice delivery. On this will depend the future.
8. Weak Budgets: Budget inadequacies compound existing problems. The India Justice Report refers to the Memorandum to the 15th Finance Commission on Budgeting for the Judiciary in India (December 2018), which categorically refers to the low priority accorded to the judiciary in the state and Union budgets.15 It states:
‘The priority accorded to the judiciary in the Union government’s budget is low as evident by the meagre proportion (0.08% of Union Budget) spent by the Union government on it. All States’ spending on judiciary constitutes 0.61% all States’ total spending. Total public spending on judiciary is less than 0.4% of the gross budgetary expenditure of Centre and States taken together. The effects of this are visible in measures of courts’ performance.’
Inadequate and sometimes sub-standard infrastructure and absence of facilities and support systems, all add up to systemically poor delivery of justice.
If access to justice and the justice delivery system are to be made effective and meaningful to the people of India, urgent steps are required. A slew of recommendations and suggestions await implementation. Action is needed – sooner than later.
1. All India Judges Association v. Union of India, (2002) 4 SCC 247.
2. Court News, April-June 2019, published by the Supreme Court of India is the most recent publication on this subject on its website. The figures are derived from this publication. Sanctioned strength of High Court judges is 1079 while the sanctioned strength of judges in the District Courts is 23413. The population of India today is 1.38 billion.
3. The Economic Survey 2018-19 volume 1 page 103 states that the sanctioned strength of judges in the district courts is 22,750 while the working strength is 17,891 thereby leaving 4589 positions vacant. The sanctioned strength of judges in the High Courts is comparatively minuscule and has not been taken into consideration. However, as per the Economic Survey the sanctioned strength of High Court judges is 1079 while the working strength is 671 leaving 408 positions vacant.
4. Since then, the sanctioned strength of judges in the Supreme Court has been increased by three and now stands at 34 as against 31 when the Economic Survey was published.
5. www.njdg.ecourts.gov.in Accessed on 27.07.2020.
6. www.njdg.ecourts.gov.in Accessed on 28.10.2020.
7. Vidhi Centre for Legal Policy.
8. https://doj.gov.in/sites/default/files/action%20plan.pdf Accessed on 28.10.2020.
9. India Justice Report, 2019 supported by Tata Trusts, p. 59.
10. (2005) 6 SCC 344.
11. https://dakshindia.org/case-flow-management-rules-in-india/ Accessed on 27.07.2020.
12. https://main.sci.gov.in/pdf/NCMSP/ncmspap.pdf Accessed on 27.07.2020.
13. https://delhicourts.nic.in/dmc/statistical. htm Accessed on 29.10.2020.
14. M.G. Abrol vs. Shantilal Chhotalal and Co. (1966) 1 SCR 284.
15. https://www.cbgaindia.org/wp-content/uploads/2019/01/Memorandum-on-Budgeting-for-Judiciary-in-India.pdf p. 3. Accessed on 27.07.2020.