Counterpoint: Solving India’s judicial backlog requires a nuanced conversation

There is little doubt that the delays caused by India’s creaking judicial system are a national disgrace and one can certainly sympathise with the outrage expressed by Shailesh Gandhi in his article June 28. The bar and the bench have failed to tackle the issue in a convincing manner and they deserve to be criticised for their failure to take constructive steps to reduce the backlog.

However, it is important to be careful when proposing solutions to the problem. Any reform process must be transparent and democratic with a healthy scepticism of the current trend of proposing technological solutions for each and every problem being faced during the administration of justice.

The PIL route

Let us begin with Gandhi’s wish for the Chief Justice of India to initiate a suo moto Public Interest Litigation that will implement all the suggestions proposed by him in order to solve the problem of judicial delays once in for all. Before putting the Supreme Court in charge of solving the country’s backlog, let us not forget that the Supreme Court itself is facing quite a massive backlog.

As a result, it has delayed hearing critical cases like the petitions challenging the abrogation of Article 370 and electoral bonds. Even tax cases which are not politically sensitive have taken the Supreme Court close to a decade to decide. The Supreme Court thus has little institutional legitimacy when it comes to the issue of judicial delays.

A second reason to oppose any interference by the Supreme Court through the PIL route is the fact that past attempts by the Supreme Courts to invoke its PIL jurisdiction to mandate judicial reforms from the early nineties and most recently in 2018, have not worked. The system remains dysfunctional. This is because judicial reforms require the active participation of multiple stakeholders ranging from the state governments to High Courts to the local bar. It cannot be mandated in a top-down manner.

A third reason to oppose the PIL route is that Indian courts have proven to be absolutely whimsical and anti-democratic while exercising their powers under the PIL route. Anuj Bhuwania in his book ‘Courting the People has provided powerful examples of the durbari style justice dispensed by Indian courts under the guise of PILs with little respect for principles of natural justice or even common sense.

In the specific context of judicial reforms, suo moto PILs involve a bench of the Supreme Court usually consisting of two or three judges, who will appoint an amicus curie from the stock of Senior Advocates practicing before it, to assist the court in framing solutions to various real and perceived issues responsible for judicial delays. Notice is then issued to Registrars of all the High Courts and the subsequent hearings have a distinct durbari flavour with all the Registrars lining up in a courtroom of the Supreme Court to indulge the amicus curie who will, more likely than not, propose poorly researched solutions, with little to no understanding of the problem at hand.

As a common citizen, forget providing an input to the proceedings, chances are you will not even have an opportunity to read the list of proposed reforms because there is no system to publish these recommendations for the general information of public.

A fourth reason to oppose the Supreme Court’s diktats on judicial reform is the fact that the Constitution in Articles 227 to Article 235 makes it very clear that each High Court is responsible for the administration of the entire state judiciary. This a recognition of the fact that each Indian state has its own unique demands.

The Constitution does not give the Supreme Court any role to play in administering the High Courts or the district judiciary. At most, the Supreme Court can hear appeals from High Courts and tribunals. A bench of two to three judges of the Supreme Court along with an amicus curie have no right to alter this constitutional scheme.

Appointing more judges

One of the main solutions offered by Gandhi to increase disposals and decrease backlogs is to simply fill vacancies. That is an intuitive solution to the problem but the facts point otherwise. For example, both Maharashtra and West Bengal are very efficient in making timely appointments to the district judiciary. As per the latest annual report of the Supreme Court Maharashtra has only 67 vacancies, while West Bengal has only 35 vacancies at the level of the district judiciary.

Yet the current backlog cases in Maharashtra is 37,44,165, of which 2,35,115 are more than 10 years old, against its annual disposal rate of 21,57,888. In West Bengal, there is a pendency of 20,32,966 cases of which 2,47,212 cases are more than 10 years old, against its annual disposal rate of 6,64,855 cases. Clearly, there is a deeper problem here than a failure to fill in vacancies.

The problem with the math offered by Gandhi to support his thesis that increased appointments will proportionally increase disposals is the failure to “weigh” different categories of cases. For example, a case involving a traffic challan will take only a few minutes to dispose. However, a murder trial can easily stretch into a few months, depending on the number of witnesses. To adequately calculate the number of judges required, it is necessary for the judiciary to release district-wise pendency numbers at a very granular level. Once case-type data is available at a district level it may be easier to determine the number of additional judges that are required.

Even presuming these numbers are available and we can figure out the exact number of judges required, there is still the question of “efficiency” of judges in managing their courtrooms. As any lawyer will tell you, the efficiency of judges varies widely across the board and disposal rates are not always an indicator of efficiency.

Take for example the criminal roster at most High Courts, which will hear bail petitions, quashing petitions under S. 482 and criminal appeals. Of these three categories, bail and quashing petitions are the easiest for judges to dispose while also keeping the criminal bar happy by ensuring them a steady stream of income and relief.

In the process, criminal appeals, which are hard and time-consuming cases for judges to hear and decide, get shortchanged by the bench despite the court’s appellate jurisdiction being a critical function of the High Courts from a public policy perspective.

Simply put, like any other class of professionals, not all judges are hard-working, especially when nobody is holding them accountable. At some point, this country has to recognise that “lazy judges” and not “lack of judges” is one of the biggest reasons for judicial delays in this country.

The viability of tech solutions

One of the solutions offered by Gandhi, is to normalise e-filing and virtual hearings across all court-rooms in India. While these solutions have proven to be essential during the course of the pandemic, they are unlikely to speed up justice in a post-pandemic world. E-filing merely reduces the need for record rooms in court complexes, while virtual hearings make it possible for lawyers and judges to sit in different locations at the same time. While this system can definitely increase disposals during the pandemic, it is doubtful whether these tech solutions will find traction amongst the district judiciary in a post-pandemic world.

In many states, the bar and the bench at the district level simply lack the computers and internet bandwidth required to make technological solutions like e-filing and virtual hearing a workable solution.

Further, while considering any technological solutions for the courtroom there is also a need to keep in mind the fact that Indian courtrooms are already sites of low trust between the various stakeholders in the judicial process. Lawyers do not always trust each other and very often the bar and bench do not trust each other. In this backdrop, lawyers are already complaining of the ability of judges and court-masters to literally mute their voices in virtual hearings in a manner that would be impossible in real world hearings. That simple power to mute a lawyer completely skews the power dynamic in the courtroom and is enough of a reason for lawyers to oppose the continuance of virtual hearing.

The snake oil of artificial intelligence

While Gandhi is right in skewering the four protesting Supreme Court judges for failing to propose a transparent system of listing cases before different benches, his solution to hand over listing of cases (i.e. deciding the date of hearing) to an algorithm by stripping judges of their discretion, does not inspire confidence. The ostensible aim of this measure is to prevent ‘out-of-turn’ listing of cases through either judicial discretion or corruption at the Registry. There are three reasons to oppose the replacement of judicial discretion with artificial intelligence.

The first is the simple fact that if judges cannot be trusted with something as fundamental as listing of cases on particular dates, how do we have any faith in their final judgments? What will be the legitimacy of a judicial system where judges are not trusted with listing cases?

The second and more practical problem is the fact it is impossible for any algorithm to factor in the umpteen number of fact scenarios that must be considered while scheduling a case for a certain date and time. How is an algorithm going to factor in values like mercy and empathy, which are intrinsic to the concept of justice? How can an algorithm calculate the immediate fallout of not giving a case an urgent listing, in case of potential destruction of a house of dwelling or a domestic violence case or a bail hearing for medical reasons? Can decisions by artificial intelligence qualify as ‘justice’ as the concept is conventionally understood?

I would submit that these solutions mandating the replacement of judicial discretion with artificial intelligence are modern day snake oil. The faster these solutions are jettisoned from the current discourse, the better off we will be in our quest to build a trustworthy judicial system.

The third issue is that algorithms will contribute to even more opacity and a breakdown of trust between the bar and the bench. The bar needs to be in a position to understand the manner in which cases are listed. The present system is not transparent and hence the breakdown of trust with Senior Advocates and even judges openly questioning the manner in which cases are listed. An algorithm, which cannot be understood by judges or lawyers, will only lead to a further breakdown of trust. It is virtually guaranteed that neither the bar nor the bench will be able to understand the workings of the algorithm.

Any long-term measures for judicial reform should revolve around increasing transparency and accountability of the system, especially of judges. Technology has a limited role to play in this regard, especially with regard to the justice system.

The writer is a lawyer