India’s huge backlog of court cases is a disgrace – but Covid-19 has provided solutions

Over three years ago, on January 12, 2018, four senior judges of the Supreme Court held a press conference to voice serious dissatisfaction at the way the institution was functioning. “The administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months,” they declared.

For nearly a week media was full of stories about the Mangal Pandey moment in the rebellious judiciary. One challenge that the four officials specifically mentioned was the manner in which cases were being allocated to judges to get desired decisions from the court.

The nation waited eagerly for changes that could transform India’s dysfunctional judicial system into an institution that would uphold the fundamental rights of citizens by example, instead of merely making proclamations.

The men who addressed the press conference stated that “the object was to preserve and protect the institution” so that two decades later the charge should not be made that the four judges had “sold their souls”. With great pomposity, they proclaimed that they were discharging their “debt to the nation”.

Subsequent events made it appear that the event was a mere outpouring of pique at not being able to persuade the Chief Justice of India to adopt their prescription of which cases should be assigned to which judge. The perceived tsunami was only a high tide. The irony was that one of the four went on to become Chief Justice and continued with the same practices. The institution was not their concern, it was just that they wanted a say in the allotment of cases.

I have been pursuing the cause of getting justice within a reasonable time and was mildly amused by a recent article in two parts by a well-respected judge who was one of the four. I thought he was now about to discharge the debt.

The article recognised filling judicial vacancies as a key solution to reduce the pendency of cases and suggested other measures such as courts ensuring tat they do not fall prey to the powers that be, transparency in appointing judges to the Supreme Court and the High Courts, avoiding transfers of judges for extraneous reasons, housecleaning to remove infructuous cases, conducting research into the reasons for pendency and avoiding adjournments.

The article does not even touch on the recruitment of the subordinate judiciary, which comprises about 90% of the total judges. The article ends by accepting that: “There are several other challenges facing our justice delivery system but unless the powers that be identify them, introspect, find solutions to the problems and implement those solutions, I am afraid we will have a system which is unable to dispense justice in time or at all.” It offered no solutions nor indicated who should change the situation.

In my opinion, the fundamental requirement of a judicial system is that it must deliver justice in a reasonable time, failing which it is an injustice system. The Supreme Court has often reiterated that the right to speedy justice is a fundamental right, but has never seriously bothered about to implement this precept.

It appears as if it expects that a deus ex machina will resolve the problem. In almost equal measure the charge is made that “hurried justice is buried justice”. The judicial system functions in the belief that it is delivering justice and timeliness cannot be considered as an essential requirement.

Human lives are finite and therefore I would state without any hesitation that timely justice delivery – right to speedy justice – is non-negotiable for any justice system.

A study in Australia of criminal trials showed that in 2004-2005, 73.3% of the trials were over in 13 weeks and only 3.5% of trials took more than a year. In India, about 73% of cases are disposed of after one year. Nobody has made the charge that justice in Australia is buried justice.

As an Indian citizen, I feel there is a way to change this, and hence I suggest likely solutions that can be implemented.

Pendency of cases

The Supreme Court has dealt with the pendency of cases in fits and starts. Let me recount one of these journeys.

The Supreme Court in its order dated February 1, 2012, asked the Law Commission of India to evolve a method for scientific assessment of the number of additional courts to clear the backlog of cases. Pursuant to this, the commission submitted its 245th Report.

The Law Commission did not consider the judge-population ratio and other popular ways to be scientific criteria for determining the adequacy of the judge strength in the country. It concluded that the “rate of disposal” method to calculate the number of additional judges required as the right one.

The apex court then directed the National Court Management Systems Committee to examine the recommendations that concluded that the complexity of the cases must be considered in deciding the required number of judges. Determining the complexity of cases and their impact on judges strength is a task that will never be finished. India took about two years to frame its Constitution but is struggling to figure out the requirement of judges after 70 years.

I decided to analyse the data available from Court News, a Supreme Court publication published every quarter on its website. It gives the number of cases instituted and disposed in all the courts of India along with pending cases, number of judicial positions sanctioned and the vacancies.

We analysed the data for the 12-year period from 2006 to 2017 (both years included) and this shows that the sanctioned position of judges was never filled. The average vacancy in the lower courts was 21%, for High Courts 32% and for the Supreme Court 12%.

While the Supreme Court and National Court Management Systems had junked the Law Commission recommendation, the disposal per judge on an all India basis showed a reasonably consistent average. While there were variations in States, the average disposal per judge across the nation for 12 years was 2,633 cases for the High Courts with a standard deviation of 8% and 1,217 cases with a standard deviation of just 6% for the subordinate courts.

This made us realise that it was possible to make a reasonable forecast for the requirement of judges and that the “rate of disposal” method would give good guidance. We also decided to make a forecast of how many cases could have been disposed if the vacancies had been no more than 5%. We called this “missed disposals”. The result was very pleasantly surprising. I am presenting it in a tabular form:

This indicates a negative pendency, showing that even with some slip-ups pendency would have become history. To appreciate the data in the table above in a simple manner, consider the fact that the average disposal was 193.7 lakh cases per year whereas the average missed disposals were 42.7 lakh cases each year.

This solution has been endorsed by Justice BN Srikrishna, Justice RC Chavan, Judge Khanzode and 100 Indian Institutes of Technology alumni.

This analysis clearly proved that even if we assume no reduction in the number of judicial hours for cases, just ensuring about 15% more judges was adequate.

Getting enough judges

The sanctioned strength for the subordinate judiciary is 24,365 whereas the vacancy is 5,207 (as per the Department of Justice website). The recruitment for the subordinate judiciary is mostly conducted through an exam jointly coordinated by the state governments and High Courts.

Since the starting annual package is over Rs 10 lakhs, there are many young lawyers who are willing to join the judiciary. I will quote one example that is reasonably representative. The Haryana Judicial Services examination must be the toughest in the world.

Of the 14,000 candidates who appeared for the preliminary exam, only 1,282 made it to the main written test and of them, 1,273 failed. Only nine candidates were called for the interview against 107 posts advertised. Even retired Supreme Court judge Justice AK Sikri found the question paper extremely tough.

The IT industry often hires 100,000 employees in a single year, and they take the simple route of taking the best on offer. The IITs admit about 11,000 students each year with the same approach and do not have more than 1% vacancies. But when it comes to employing judges, nobody bothers about filling all sanctioned positions. Either the exams are poorly designed or the evaluation is vicious.

As far as the High Court and Supreme Court judges are concerned, about 33% of positions are filled by promotion from the subordinate judiciary and the balance by direct offers to the advocates who have a successful practice. Many of the successful advocates are not keen on becoming judges and consequently, not enough names are recommended by the collegium. In 2017, the sanctioned positions were 1,079 and there were 403 vacancies.

A sensible and logical solution would be to fill 80% by promotion from the subordinate judiciary. This would also make these positions more attractive.

The responsibility to ensure near-zero vacancies should be placed on the chief justices of the High Courts and Chief Justice of India, and they should be held accountable. The simple universal principle that is followed everywhere is to take the best available. Presently nobody believes they are accountable, and filling judicial vacancies is not considered as a matter of priority.

In the Judges Association case in 2002, the Supreme Court ruled: “We are also aware of the fact that a large number of vacancies as of today from amongst the sanctioned strength remain to be filled. We, therefore, first direct that the existing vacancies in the subordinate court at all levels should be filled, if possible, latest by March 31, 2003, in all the states.”

In Malik Mazhar Sultan vs UP Public Service Commission, the Supreme Court had ruled: “All state governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All state governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be operational.”

Alas, these were empty words. The Supreme Court itself has never bothered to get the implementation of its orders because it does not hold itself responsible. Perhaps, in the guise of “judicial independence”, the judiciary has become unaccountable.

Using technology

For fixing the roster and the benches, a simple solution would be developing a computer algorithm that will consider all rational reasons that a chief justice should take into account while allotting cases. This would remove human arbitrariness. Logically allotting cases and deciding benches should satisfy the criterion of stopping all bench-fixing. Even on this count, the four judges have made no suggestions to make fixing the roster fair and equitable.

Influential people are able to get priority in hearing or able to delay hearings and get adjournments as per their wish. This tilts the balance and leads to corruption and violation of the simple principle of first-in-first-out. Most of this is at the cost of the poor undertrials and the weak, whose cases are often not heard since they get pushed out of the court’s vision.

India ranks amongst the 10 worst countries in the world in terms of the percentage of undertrials who are incarcerated. The percentage of undertrials in Indian prisons is between 65% to 70%. In the United States, the percentage of undertrials is about 20%.

Frequent adjournments are one of the main causes of delays. These are restricted by the Civil Procedure Code but the law is flouted routinely. Adjournments must involve a cost as directed by the Supreme Court and the Civil Procedure Code must be followed rigorously. This merely involves following the apex court’s directions and the law and the Supreme Court cracking the whip when the order is not followed.

In short, an algorithm should be developed with primary consideration that first-in-first-out must be followed in case listing, adjournments and roster. The judge could be given an override limited to 5% of the cases to consider urgencies that may not be covered by the algorithm. If an adjournment is given it should generally not be for more than two weeks.

Presently for the influential people, there is an incentive to continue the present dysfunctional system since it gives them importance, power and money. If basically the system follows first-in-first-out and adjournments and case listing is based on a logical criterion, it will be in everyone’s interest that the queue moves faster. First-in-first-out is the elementary foundation of equality before law and Article 14 is daily violated in our courts.

Virtual Courts

The E-Committee of the Supreme Court has been in existence since 2005. It has made two outstanding recommendations which are not being followed:

1) E-filing in all courts: The committee has made detailed standard operating procedures on how petitions, affidavits, payment of fees can all be done electronically without lawyers or litigants having to travel to the courts. This has been implemented in small ways and often in absolutely perverse and wasteful ways. Many High Courts have insisted that the petitions must be filed by email and then the paper copies must be submitted. To make this more wasteful and interesting, the paper copies are scanned and the “digitised” images are not used anywhere.

A lot of travel and expense would be saved for lawyers and litigants. It would also save a lot of space in the courts and make them cleaner and smart. A rough calculation indicates that the courts of India require about 12,500 tonnes of paper that requires the destruction of about 3 lakh trees.

2) Virtual hearings: Virtual hearings have been held by courts for about two decades in a few cases. But this has been done as an exception. The Covid-19 crisis led to the demand to conduct virtual hearings. Whereas some courts did hold some hearings selectively, the disposals fell dramatically, since many judges worked for less than 50% of the time even on virtual hearings and some did not work at all.

As shown earlier, the average increase in pendency over a 12-year period from 2006 to 2017 was 4.7 lakh cases a year. In 2020 in a single year there has been an increase in the backlog by about 51 lakh cases despite the fall in new Institutions. The judicial delivery system was creaking with an increase of backlog by 4.7 lakh cases a year. It will become irrelevant with an increase of 51 lakh cases in one year. We do not know when the Covid-19 crisis will go, but it appears that we may land up with a backlog of over 5 crore cases by 2022. The Indian Judicial system will be completely broken.

All the courts must switch to virtual mode immediately and at least start disposing cases at the normal speed. There are powerful lawyers who are opposing virtual courts to safeguard their high earnings. Even after the Covid-19 crisis goes, it will be greatly beneficial to continue hybrid courts.

The choice should be left to the lawyers and litigants to appear virtually or physically. This will reduce the crowding in courts and save a lot of wasted time and cost. The hardware is available in all courts. Much is being made about training requirements and lack of equipment with some lawyers. These are without any real reasons. When first and second standard students are learning in a virtual fashion, graduates cannot claim inability. Even if we assume that such Luddites exist, a two-hour training session would be adequate.

Saving judicial system

Most of these suggestions have been propagated by the E-Committee of the Supreme Court but is not being implemented in the guise of independence of the High Courts. The Supreme Court can order the executive to take urgent steps to make the judicial system discharge its duty to the nation. The judicial system must respond positively to the Covid-19 crisis.

In the last seven decades, almost every service provided by the state to its citizens has improved on quality and timeliness. The improvement in education, public health, banking, railways, transport, roads and other areas may not be adequate, but they have improved.

The only service that has steadily deteriorated and is now hurtling towards a disaster is the judiciary. Why has this happened? The judiciary has not taken the responsibility for this. While it has great authority, it has not been held accountable for delivery.

In the name of respect and maintaining its independence, the judiciary did not take the responsibility of improving its service and the citizens accepted this. All other public functions admit they are responsible for their service and accept criticism. Even when some significant improvements are suggested, like the E-Committee suggestions or the 245th Law Commission report, courts have not implemented them. Instead of using vague and omnibus words like judicial reforms only three improvements have been suggested. These are covered by existing law, Supreme Court directions and Supreme Court’s E-Committee recommendations.

If citizens raise the demand these points can be implemented within six months. The Chief Justice of India can take this as a suo moto public interest litigation and gives appropriate orders. May we hope that ten retired justices will file a PIL?

I am hoping the lawyers and judges will also raise their voices to save the Indian Judicial system. I am discharging my duty to the nation. I am sure many others – including the four judges – will do the same.

Shailesh Gandhi is a former Central Information Commissioner.